JUDGMENT :

1. Heard Mr. AK Purkayastha, learned counsel for the petitioner. Also heard Mr. MP Goswami, learned Additional Public Prosecutor, Assam and Mr. J Ahmed, learned counsel for the respondent No. 2.

2. The present application is filed under Section 482 Cr.P.C. praying for quashing of criminal proceeding being GR case No. 713/2017 registered under Section 493/376/420/34 IPC.

3. The prosecution was launched on the basis of FIR lodged by the informant/ respondent No. 2 before the learned Court of CJM, Morigaon, which in turn forwarded to the O/C, Laharighat PS for registering a case under appropriate section. Accordingly, Laharighat PS case No. 103/2017 under Section 493/376/420/34 IPC was registered.

4. The averments made in the FIR are to the following facts:

I. The informant is the sister-in-law of the accused/ petitioner.

II. Taking opportunity of illness of her elder sister, the accused/ petitioner promised to marry her since last three years.

III. Taking advantage of such promise, the accused had sexual intercourse with her against her will.

IV. The accused promised that marriage will be solemnized in the Month of May, 2016. However, in the month of May, 2016, marriage was not solemnized and the accused promised that the marriage will be solemnized in the month of April, 2017, However, on 24.02.2017, the accused married another girl.

V. Accordingly, the FIR was lodged on 03.03.2017.

5. Statement of the victim was also recorded under Section 164 Cr.P.C., which is to the following effect:

I. That the victim has been in love with the accused since last three years.

II. The family member of the accused came to the house of the victim and had ring ceremony fixing the date of marriage to be solemnized in the month of April, 2017.

III. However, instead of marrying the victim, the accused, Pankaj Khataniar had married another girl.

IV. The accused with promise to marry the victim had physical relation with her.

6. Perused the statement of the victim, which is recorded by the police under Section 161 Cr.P.C., which discloses the followings:

I. The accused is the brother-in-law of the victim.

II. The accused married elder sister of the victim 12 years back.

III. The victim had been in love with the accused for last three years.

IV. Her elder sister expired on 12.02.2017 and after ritual of the decease were over, accused did not marry her and married another girl.

V. After knowing the aforesaid fact, the victim entered the house of the accused and then the accused left his residence with his wife and she was still living in the house of the accused with her brother and sister-in-law.

7. On the basis of the aforesaid material, the investigating officer filed charge-sheet against the present accused under Section 493/376/420 IPC. The aforesaid charge-sheet is under challenged.

8. Mr. Purakayastha, learned counsel for the petitioner while pressing for quashment of the aforesaid proceeding submits that there is no whisper either in the FIR or in the statement recorded under Section 161 or under Section 164 of the victim which discloses that there was any initial deception in the mind of the present petitioner to have a sexual intercourse and to make a false promise. Therefore mere breaking of a promise even if any shall not constitute any offence under Section 420 IPC inasmuch as such consensual sex cannot be treated as an offence under Section 376 IPC. Therefore, even if the entire material on record i.e. the FIR, statement of the victim recorded under Section 164 Cr.P.C. and her statement recorded under Section 161 Cr.P.C. taken as a whole to be correct, no case either Section 493 IPC or 376 IPC or 420 is made out. Accordingly, he submits that in the event if the trial is allowed, the petitioner will suffer immense and will have to face a trial which is having no bases.

9. Per contra Mr. Ahmed, learned counsel for the respondent No. 2 relying on judgment of Hon’ble Apex court in the case of Ramveer Upadhyay another vs. State of UP and another reported