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2018 DIGILAW 844 (JK)

Yashpal v. State of J&K

2018-10-26

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. In this petition filed under Section 561-A of the Code of Criminal Procedure, the petitioner inter alia seeks quashing of FIR No.199/2017 dated 24.10.2017 registered at Police Station, Katra under Section 376 RPC against the petitioner on the complaint of respondent No.2, who got the FIR registered in terms of Section 156(3) Cr.P.C. on the directions of learned Judicial Magistrate 1st Class (Sub-Judge), Katra by alleging that she was subjected to sexual assault on the pretext of promise to marry. 2. Brief facts of the case are that the petitioner and the respondent no.2 were studying in the same college at Udhampur, but were not closely known to each other. The respondent No.2, who was married to one Mohan Lal of Reasi, started living with her husband at Reasi and out of the said marriage one male child was born. The respondent No.2 because of her own misdeeds, left the matrimonial house and started living with her parents at Katra, which made her husband to file a petition under Section 9 of the H.M. Act before the court of District Judge, Reasi. It is further stated that respondent no.2 with ulterior motive in order to pressurize the petitioner for the reason best known to her and in order to extract some money and to defame the petitioner filed a complaint before the learned Judicial Magistrate 1st Class (Sub-Judge), Katra by alleging therein that the complainant/respondent no.2 while studying in Government College for Women, Udhampur used to travel daily from her home to Udhampur and the petitioner was also studying in the Government College (Boys) Udhampur and residing at the house of his uncle situated at Panthal, Katra. Petitioner started approaching the complainant in her bus and proposed her for friendship and in this manner both started talking casually with each other; the accused used to board in the complainants bus and this continued since 15.01.2014 because the marriage of the complainant was fixed on 20.01.2014 with one Mohan Lal. On 16.01.2018, the accused called the complainant on her mobile and asked her to come to his uncle house situated at Panthal, Katra. The complainant refused to meet with accused whereupon the accused threatened the complainant that in case the complainant did not meet him on 16.01.2014 the accused would disclose to her husband that he is having affair with the complainant. The complainant refused to meet with accused whereupon the accused threatened the complainant that in case the complainant did not meet him on 16.01.2014 the accused would disclose to her husband that he is having affair with the complainant. Therefore, the complainant feeling helpless and in order to save the dignity of her family as well as herself was forced to go to the house of uncle of the accused situated at Panthal, Katra where the accused had committed forcible sexual intercourse with complainant by threatening her that if the complainant will reveal the incident to any one, he will damage the reputation of complainant publically. It is further stated in the said complaint that the marriage of the complainant was solemnized with Mohan Lal on 20.01.2014 and even after marriage, he kept on calling the complainant, the matter came to the knowledge of complainant’s husband and due to this reason the complainant’s husband divorced the complainant on 13.12.2016. It is also stated that the accused again contacted the complainant after her divorce and gave assurance that he will marry her, again committed sexual intercourse with complainant on 15.01.2017 at Katra. Since the matter had come to the knowledge of complainant’s father, therefore, complainant asked the accused to fulfil his said promise of marriage but the accused refused to marry with the complainant and instead asked the complainant to take money and forget about marriage. Feeling aggrieved, the complainant lodged written report with SHO Police Station, Katra. It is further stated that the learned Magistrate on the basis of the aforesaid complaint directed the SHO Police Station Katra to register the FIR for the commission of offence under Section 376 RPC. 3. The petitioner has challenged the aforesaid impugned FIR on the following grounds : (i) That the impugned FIR is misuse of process of law and liable to be quashed. The respondent no.2 alleged in the complaint that she was subjected to sexual assault and was in love affair with the petitioner since 2014 having friendly relation and love affair constantly for 4 years. However, subsequently the petitioner allegedly refused to marriage with the respondent no.2. The respondent no.2 alleged in the complaint that she was subjected to sexual assault and was in love affair with the petitioner since 2014 having friendly relation and love affair constantly for 4 years. However, subsequently the petitioner allegedly refused to marriage with the respondent no.2. It is submitted that respondent No.2 who was already married to one Mohan Lal and living as husband and wife out of the said wedlock as male child was born she left the matrimonial house which made the husband to file a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights there were no relationship between the petitioner and the respondent no.2 as alleged in the complaint. The respondent No.2 being a mature lady as alleged though denies by the petitioner developed the relationship on the pretext of promise to marry and alleged in the complaint that she used to stay with the petitioner. On such a circumstances, no offence under Section 376 RPC can be said to made out. Even if it is assumed without admitting this fact that there was friendly relationship between petitioner and respondent No.2 even then from the allegations levelled in the complaint be taken as it, no offence under Section 376 RPC is made out. The Hon’ble Supreme Court in case titled Tilak Raj vs State of Himachal Pradesh, reported in 2016 (4) SCC 140 has held that the evidence as a whole including the FIR and testimony of the prosecutrix clearly indicates that the story of prosecutrix clearly indicates that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. The complainant in order to trap the petitioner by maligning his image has implicated in a false and frivolous case. Therefore, the FIR is liable to be quashed. (ii) That the FIR is otherwise liable to be quashed on the ground that there is no allegations against the petitioner that there was forcible act on the part of the petitioner which constitute an offence within the meaning of Section 376 RPC. The respondent No.2 alleged the incident of 16.01.2014 but did not report the matter to anybody which amounts to consent. The respondent No.2 alleged the incident of 16.01.2014 but did not report the matter to anybody which amounts to consent. “It has been time and again held by the Hon’ble Supreme Court in number of cases that the allegations of sexual assault in the co plaint must be specific against the accused persons and in fact discloses the commission of offence which prima facie discloses that a case under Section 376 RPC is being established.” Therefore, the proceedings are unwarranted and liable to be quashed. (iii) That the FIR is otherwise liable to be quashed on the ground that the present complaint has been filed against the petitioner in order to pressurise to solemnize the marriage. As already submitted the respondent No.2 who is already married to one Mohan Lal and having matrimonial disputes and the same is pending subjudice before the court of Principal District Judge, Reasi. The respondent No.2 being married lady is having matrimonial dispute with her husband who filed petition under Section 9 of the H.M.Act before the court of Principal District Judge, Reasi by alleging therein that the respondent No.2 wilfully and without any reasonable cause left the matrimonial house and has refused to perform the conjugal rights and matrimonial obligations towards her husband. Thus, the respondent No.2 in order to pressurize the petitioner to marry with her filed the complaint. Therefore, no offence can be said to have been committed by the petitioner. As such, the impugned FIR is liable to be quashed. 4. Heard learned counsel for the parties and perused the case file. 5. This Court vide order dated 20.11.2017, while entertaining the petition, issued notices to the respondents and stayed the investigation in the case FIR No.199/2017 registered at Police Station, Katra. 6. Learned State counsel has filed objections on behalf of respondent No.1, wherein it is stated that the present petition raises disputed question of facts, which this Court while exercising its extra ordinary jurisdiction under Section 561-A Cr.P.C. may not take into consideration. On this count, the petition deserves to be dismissed. It is further stated that the present petition is not maintainable as the same has been filed by suppressing the real facts of the case, as such, petition deserves to be dismissed. It is also stated that the petitioner has no legal right to seek the indulgence of this Court for quashing the impugned FIR. It is further stated that the present petition is not maintainable as the same has been filed by suppressing the real facts of the case, as such, petition deserves to be dismissed. It is also stated that the petitioner has no legal right to seek the indulgence of this Court for quashing the impugned FIR. It is further contended that the present petition is not maintainable and deserves to be dismissed as it is made clear by a catena of judgments of the Hon’ble Apex Court that if the FIR does not disclose the commission of cognizable offence, the court would be justified in quashing the investigation and in case commission of offence is disclosed the court will not interfere in the investigation. While dealing with a challenge to legality or validity of charge, Court has to be very reluctant and cautions, as framing of the charge is a much advanced stage in proceeding under the code and similarly, parameters of inherent powers of High Court are will settled and well defined by now in catena of judgments of the Apex Court that “while framing of charge, purpose is limited to find out whether a prima facie case is made out or not and the court is not required to undertake an elaborate enquiry by shifting and weighing the material to arrive at a conclusion that it will not lead to conviction as held in guide line of Sanjan Kumar’s case.” It is further stated that the petitioner has committed an offence which is against the humanity and all the tenement of universal declaration of human rights and also breached the Article 21 and Article 51 which give right to live in human dignity as the rape itself violates such fundamental rights of the women. 7. During the course of arguments, learned counsel for the petitioner has relied upon the judgments of Hon’ble the Supreme Court in case titled Tilak Raj vs State of Himachal Pradesh reported in 2016 AIR (SC) 406, in case titled Rajak Mohammad vs State of Himachal Pradesh, decided on August 23, 2018. 8. 7. During the course of arguments, learned counsel for the petitioner has relied upon the judgments of Hon’ble the Supreme Court in case titled Tilak Raj vs State of Himachal Pradesh reported in 2016 AIR (SC) 406, in case titled Rajak Mohammad vs State of Himachal Pradesh, decided on August 23, 2018. 8. On the other hand, learned counsel for the respondents have also relied upon the judgments of our own High Court in case titled Rajinder Singh vs State reported in (2013) 4 JKJ 209 ; Labhu Ram Sehgal vs State of J&K and others reported in (2013) 3 JKJ 631 and Farooq Ahmed vs State of J&K and others, reported in 2017 Legal Eagle 275. 9. I have considered the rival contentions and law on the subject. The law with regard to quashing of FIR is now well settled. FIR can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex-facie all merited prosecution is throttled at the threshold without allowing the material in support of it. 10. This court while exercising the power under section 561-A Cr.P.C., Court does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is a discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made put or not. This is prerogative of trial court where challan is produced. Where accused has opportunity to advance submission before trial court that material on record does not call for framing of charge then High court shall not exercise power under section 561-A Cr.P.C. 11. In present case, accusation against petitioner is that the complainant/respondent no.2 while studying in Government College for Women, Udhampur used to travel daily from her home to Udhampur and the petitioner was also studying in the Government College (Boys) Udhampur. In present case, accusation against petitioner is that the complainant/respondent no.2 while studying in Government College for Women, Udhampur used to travel daily from her home to Udhampur and the petitioner was also studying in the Government College (Boys) Udhampur. Petitioner started approaching the complainant in her bus and proposed her for friendship and in this manner both started talking casually with each other; the accused used to board in the complainants bus. Since the marriage of the complainant was fixed on 20.01.2014 with one Mohan Lal, on 16.01.2018 the accused called the complainant on her mobile and asked her to come to his uncle house situated at Panthal, Katra. The complainant refused to meet with accused whereupon the accused threatened the complainant that in case the complainant did not meet him on 16.01.2014 the accused would disclose to her husband that he is having affair with the complainant. Therefore, the complainant feeling helpless and in order to save the dignity of her family as well as herself was forced to go to the house of uncle of the accused situated at Panthal, Katra where the accused had committed forcible sexual intercourse with complainant by threatening her that if the complainant will reveal the incident to any one, he will damage the reputation of complainant publically. That the marriage of the complainant was solemnized with Mohan Lal on 20.01.2014 and even after marriage, he kept on calling the complainant, the matter came to the knowledge of complainant’s husband and due to this reason the complainant’s husband divorced the complainant on 13.12.2016. That the accused again contacted the complainant after her divorce and gave assurance that he will marry her, again committed sexual intercourse with complainant on 15.01.2017 at Katra. Since the matter had come to the knowledge of complainant’s father, therefore, complainant asked the accused to fulfil his said promise of marriage but the accused refused to marry with the complainant and instead asked the complainant to take money and forget about marriage. 12. Feeling aggrieved, the complainant lodged written report with JMIC (Sub Judge) Katra. That the learned Magistrate on the basis of the aforesaid complaint directed the SHO Police Station Katra to register the FIR for the commission of offence under Section 376 RPC. 13. The statement of prosecutrix under section 164-A Cr.P.C. has already been recorded, so investigation would have been completed. That the learned Magistrate on the basis of the aforesaid complaint directed the SHO Police Station Katra to register the FIR for the commission of offence under Section 376 RPC. 13. The statement of prosecutrix under section 164-A Cr.P.C. has already been recorded, so investigation would have been completed. In the statement, prosecutrix has stated against the petitioner with regard to commission of alleged crime. But due to stay order passed by this court, the challan could not be produced. Now, whether on the basis of statement of victim, alleged offence is made out or not against the petitioner, is not within the domain of this court while deciding the petition u/s 561-A Cr.P.C. 14. All the pleas taken in the petition and that argued may be relevant for discharge of accused, but not for quashing the FIR, because all the pleas are pertaining to appreciation of facts. It is not case of petitioner that there is an express legal bar engrafted in any of the provisions of the Code for investigating the matter. 15. As already held, this court cannot appreciate the facts in this petition as to whether case under section 376 RPC is made out or not. I have gone through the law cited by counsel for petitioner. These are not applicable in present set of circumstances, because these laws have been evolved in different set of facts. 16. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated. However, petitioner is at liberty to take all pleas of facts or law before trial Court at the time of framing of charge.