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2018 DIGILAW 825 (JK)

Rekha Devi v. State of J&K

2018-10-23

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. These are the two petitions arising out of a common FIR No. 36 of 2016 dated 12.03.2016, one filed by Rekha Devi who is the victim in said FIR and another by Devi Dayal and Ravi Kumar, therefore, both the petitions are disposed of by a common order. 2. Through CRMC No. 360 of 2018, filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioner seeks quashment of FIR No. 36/2016 dated 12.03.2016 registered at Police Station, R.S. Pura for commission of offences under Sections 452, 376, 341, 504 and 506 RPC on the following grounds:- “1. Because the petitioner is an illiterate lady and is not aware of the intricacies of law and its implications. Moreover, due to confusion, mental stress and instability created by the influence exerted on the petitioner by the instigation of the local people of the area, the petitioner over exaggerated the entire episode of threatening and confinement by the respondent no. 2 and attributed such an offence on respondent no. 2 from which he cannot find any escape and thus, the inclusion of offence defined under Section 376 RPC came to be included in FIR No. 36/2016 whereas the respondent no. 2 did not commit any rape with her. 2. Because the complaint was drafted in English and the petitioner could not understand it simplications moreover, she was not aware of the contents of the application as well as the FIR and it was only after some days that the petitioner was explained by one of her close relative regarding the contents of the FIR and then and then only she realized the in-deliberate fault on her part and decided to file the present petition in order to uphold the majesty of law. 3. That the petitioner after the incident has solemnized another marriage and is leading a peaceful happy married life and the registration/investigation in the FIR being carried out by the concerned police is day in and day out is causing lot of humiliation and embarrassment which has caused mental agony to her in consequence whereof her entire family is suffering and loosing public face, which has left the petitioner with no option but to approach the Hon’ble Court for seeking quashment of the said FIR so that she could lead a peaceful happy married life in future times to come..” 3. Para 4 of the petition is relevant, same reads as under:- “4. That the above FIR was registered against the respondent No. 2 on the complaint of the petitioner. It is submitted that the petitioner is an illiterate lady and is not aware of the intricacies of law and its implications. Moreover, due to the confusion, mental stress and instability created by the influence exerted on the petitioner by the instigation of the local people of the area, the petitioner over exaggerated the entire episode of threatening and confinement by the respondent No. 2 and attributed an offence to the respondent No. 2 which was never committed by him with the petitioner. It is submitted that commission of offence of rape by the respondent No. 2 with the petitioner ought to not too have been included in the FIR impugned in this petition. Factor remains that respondent No. 2 did not commit an offence of rape on her. She was not aware of the contents of the application as well as the FIR and it was only after some days that the petitioner was explained by one of her relative regarding the contents of the FIR then and then only she realized the in-deliberate fault on her part and decide to file then the present petition in order to seek the quashment of the FIR impugned in the petition. 4. On 17.10.2018, this Court directed the Registrar Judicial of this Court to record the statement of the parties in order to authenticate the execution of the compromise deed. The parties appeared before the Registrar Judicial of this Court and their statements have been recorded. 5. Learned counsel for the petitioner states that as the parties have entered into a compromise, so the impugned FIR is required to be quashed. 6. On the other hand, Mr. C.M. Koul, learned Sr. AAG states that offence under Section 376 RPC cannot be quashed on the ground of compromise. In support of his contention, he relies upon a judgment dated 06.05.2017 passed by a Coordinate Bench of this Court in 561-A No. 34/29017 titled Ashiq Hussain vs. State of J&K and ors. 7. I have considered the rival contentions. State counsel has argued that offence under section 376 RPC cannot be quashed on the ground of compromise. 8. The Apex court in Gian Singh. 7. I have considered the rival contentions. State counsel has argued that offence under section 376 RPC cannot be quashed on the ground of compromise. 8. The Apex court in Gian Singh. v State of Punjab and ors (2011) 10 SCC 705 has held as under;- 57. The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above questions is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding. 9. In Shimbhu and Another v. State of Haryana (2014) 13 SCC 318 , three-Judge Bench has ruled thus:- “Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC.” 10. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC.” 10. In view of above law, I am not inclined to allow this petition, as FIR under section 376 RPC cannot be quashed on the ground of compromise. 11. Both the petitions are, accordingly, dismissed along with connected IAs. Registry to place a copy of this order on the record of CRMC No. 176/2016.