Consent,376 I.P.C nd Lastly Compromise
Apurva Kumar
(Querist) 02 December 2008
This query is : Resolved
Dear,Friends(a query)
Petitioner has given pretxt to marry the victim in future and continued living with her as husband and wife in the meantime she got conceived,victim is the widow of petitioner and having 2 child.After pregnency petitioner refuses to marry thereafter victim lady filed a case u/s 376 I.P.C,petitioner is in jail custody and aplied for bail in the meantime applied for the compromised petition which was accepted with the consent of victim lady.Lower court observed all the above fact and asked for the marriage arrangenent to the jail authority if possible.Now the bail application is being filed in the High Court what ground should i take to dissolve the whole proceding and in the meantime for the release of petitioner on bail? any case law or suggestion on this issue. Please enlighten me on this case law.
Regard
Apurva,Advo.
P.H.C
bhagwant
(Expert) 03 December 2008
Sec.376 is not compoundable offence,
As prosecutrix is major (seems as she has conceived two sons ) her consent is material, therefore by recording evidence accused can be discharged by court, (prosecution can take cognizance u/s.191 IPC if complainant turn hostile, or 211 ). It cannot be finalised before issuing chargesheet in court. It will be better for u to get filled chargesheet as early as possible and than matter to be heard and disposed accordingly.
rupareliya
(Expert) 09 December 2008
if u able to estabish that ur client and the wictim living togeher as husband and wife than it may possible one citetion is here
2001 (0) GLHEL-SC 21612
SUPREME COURT OF INDIA
(FROM HIGH COURT OF BIHAR)
Hon'ble Judges:D.P.Mohapatra and Shivaraj V.Patil JJ.
Pritpal Singh Versus State Of Bihar
Criminal Appeal No. 592 of 2001 ; SPECIAL LEAVE PETITION (CRIMINAL) No. 3994 of 2000 ; *J.Date :-
APRIL 27, 2001
CODE OF CRIMINAL PROCEDURE, 1973 Section - 439
Equivalent Citation(s):
2001 (8) Supreme 604 : 2001 GLHEL_SC 21612 JUDGEMENT :- D.P.MOHAPATRA, J.
1 Heard learned counsel for the petitioner. None appears for the respondents despite service of notice. Leave granted.
2 The accused in the complaint case no. c-373/98 pending in the Court of Chief Judicial Magistrate, Daltonganj, Bihar, has filed this petition assailing the order passed by the Patna High Court on 28.09.2000 in Cri. Misc. No. 3065/2000. In that case the appellant had challenged the order of the Magistrate cancelling the bail granted to him.
3 The dispute raised in the case relates to eviction of the appellant who is the tenant from the premises of which the respondent is the owner. Previously, there was a compromise between the parties in which it was agreed inter alia that the appellant will pay certain amount to the respondent and vacate the premises by the time stipulated. On the allegation that the appellant has failed to comply with the terms of the compromise by not vacating the premises in question within the time stipulated, the petition for cancellation of bail was filed. It is stated by learned counsel for the appellant that neither any averment was made in the petition about mis-use of liberty granted to the appellant nor any difficulty was alleged to have been faced by the prosecution in the case on the ground of the appellant being at large.
4 The Magistrate cancelled the bail granted to the appellant solely on the ground that the terms of the compromise had not been complied with. To say the least, the ground on which the petition for cancellation of bail was made and was granted is wholly untenable. It is our view that the order if allowed to stand will result in abuse of the process of court. The High Court clearly erred in maintaining the order. Therefore, the order passed by the Magistrate cancelling the bail and the order of the High Court confirming the said order are set aside. The bail order is restored. The appeal is allowed.
