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2022 DIGILAW 14 (JK)

Parshotam Singh v. State of J&K

2022-01-31

RAJNESH OSWAL

body2022
JUDGEMENT/ORDER : 1. The petitioner has filed the present petition for quashing the FIR No. 68 of 2017, dated 01.06.2017 registered with the Police Station, Nawabad for commission of offence under section 376 RPC. 2. It is stated that the complainant made a written complaint to the Senior Superintendent of Police, Jammu on 01.06.2017 stating therein that the petitioner deceived the complainant as after having enjoyed sex with her, the petitioner refused to solemnize marriage with her. In the complaint, it was stated that the parents of the petitioner and the complainant settled an arranged marriage between the petitioner and the complainant and the final date was yet to be fixed for solemnization of the marriage. Whenever the petitioner came to his village Kaintha, as the petitioner had been serving in Indian Army, the complainant and the petitioner used to meet each other and on 28th of May 2017, the complainant with her own free will and consent accompanied the petitioner to Jammu and it was further stated that the petitioner used the complainant for the sexual purpose and thereafter refused to marry. The petitioner has impugned the FIR on the following grounds: (a) That as per the allegations, no offence under section 376 RPC is made out and in the whole complaint, it is nowhere mentioned that the petitioner raped the complainant. Even if the allegations in the FIR are taken at their face value and accepted in their entirety, the same do not prima facie constitute the offence of rape. (b) That it is admitted case of the complainant that the marriage between the petitioner and the complainant was settled by the parents of the petitioner and the complainant and after settling the marriage, the petitioner indulged in sexual relationship with the complainant and thereafter refused to marry. As per law laid down by Apex court in Deepak Gulati versus State of Haryana that where the accused committed sexual intercourse with the prosecutrix on the promise to marry and after eloping with the complainant, the accused cannot be said to have committed an offence of rape, if he doesn't solemnize the marriage subsequently. (c) The FIR has been registered by the complainant with mala fide intention and with ulterior motive for wrecking the vengeance upon the petitioner as there is a dispute of land between the father of the petitioner and his real brother, Sukhdev Singh. (c) The FIR has been registered by the complainant with mala fide intention and with ulterior motive for wrecking the vengeance upon the petitioner as there is a dispute of land between the father of the petitioner and his real brother, Sukhdev Singh. The complainant is the daughter of maternal uncle of the wife of Sukhdev Singh. The present complaint has been filed at the instance of said lady and her husband Sukhdev Singh, who are not interested in giving the ancestral property of the father of the petitioner to him. 3. The respondent Nos. 1 & 2 have filed their response, in which it is stated that the complainant submitted an application on 01.06.2017 and pursuant to the said application, FIR No. 68/2017 under section 376 RPC was registered and during the course of the investigation, the statement of the prosecutrix was also recorded under section 164-A Cr.P.C. The petitioner was arrest ed and was subsequently granted bail on 21.06.2017. It is further stated that as per the statements of the prosecutrix recorded under section 164-A Cr.P.C. and other witnesses, offence under section 376 RPC stands proved against the petitioner. 4. During the pendency of this petition, an application was also filed by the petitioner for arraying the prosecutrix as well as her father as party to the present petition. In the said application, it was also stated by the petitioner that the marriage between the petitioner and the prosecutrix stands solemnized on 01.07.2017 in Arya Samaj Mandir, Janipur Jammu and in support of the said assertion, the petitioner has placed on record the marriage certificate issued by the Arya Samaj Mandir Janipur Colony Jammu. Vide order dated 13.08.2021, the prosecutrix was arrayed as party-respondent No. 3 to the present petition. The respondent No. 3 i.e. the prosecutrix has filed a response in which she has stated that the marriage between her and the petitioner has been solemnized on 1st of July 2017 and further that she has no objection in the event impugned FIR is quashed. 5. Mr. Gandhi, learned counsel appearing for the petitioner vehemently argued that notwithstanding the solemnization of the marriage between the petitioner and respondent No. 3, even no offence under section 376 RPC is made out against the petitioner from the mere perusal of the FIR. 5. Mr. Gandhi, learned counsel appearing for the petitioner vehemently argued that notwithstanding the solemnization of the marriage between the petitioner and respondent No. 3, even no offence under section 376 RPC is made out against the petitioner from the mere perusal of the FIR. He further argued that the continuance of the investigation shall be nothing but an abuse of process of law. 6. Per contra, Mr. Aseem Sawhney learned AAG, submitted that mere solemnisation of the marriage between the petitioner and respondent No. 3 would not mean that no offence was committed by the petitioner. 7. Mr. Vilakshan Singh, learned counsel appearing for the respondent No. 3 argued that he has instructions to make submissions before the Court with regard to no objection of the respondent No. 3 for quashing the FIR as the respondent No. 3 has solemnized their marriage with the petitioner. 8. Heard and perused the record including the CD file. 9. A perusal of the FIR reveals that the same was registered at the instance of the respondent No. 3. In a complaint the respondent No. 3 had stated that parents of petitioner and complainant had arranged their marriage and date was to be fixed. She used to meet petitioner who was serving in Indian Army and during leave, he used to come to his residence and subject her to molestation with the promise that process of their marriage was in progress and he had to marry her. She always surrendered with the hope that their marriage would be solemnized. On 28th of May, the petitioner called her and asked her to accompany him to Jammu where he had hired a room in Arman Hotel situated at Gumat. He enjoyed for night and in the morning stated that he was not willing to marry her. Long discussion took place and thereafter, the petitioner asked her to wait at bus stand. She kept on waiting for the petitioner till late in the evening and then she received a phone call from the petitioner who told that he was not willing and interested in solemnization of marriage with her. In this way, she had been deceived by the petitioner for satisfying his sexual lust. The statement of the prosecutrix was also recorded during the course of investigation and she has narrated the same story in a statement recorded under section 164-A Cr.P.C. 10. In this way, she had been deceived by the petitioner for satisfying his sexual lust. The statement of the prosecutrix was also recorded during the course of investigation and she has narrated the same story in a statement recorded under section 164-A Cr.P.C. 10. Now it is to be seen whether impugned FIR discloses commission of offence under section 376 RPC or not. From the perusal of the FIR as well as the statement of the prosecutrix, it is evident that the respective parents of the petitioner and prosecutrix had arranged their marriage and date was to be fixed. This is also admitted fact that the respondent No. 3 voluntarily accompanied the petitioner to Jammu and stayed with the petitioner in a hotel for a night. There is no allegation in the FIR that the petitioner had sexual relations with the respondent No. 3 against her wish or will and as such, prima facie it appears that the relations were made between the petitioner and the prosecutrix willfully. The only reason for which the FIR was got registered by the respondent No. 3 was that the petitioner after enjoying sex with the respondent No. 3 refused to solemnize the marriage with her. Even in the FIR impugned, there is no allegation that the petitioner had sex with the respondent No. 3 on the basis of promise to marry. 11. Otherwise also, law is well settled that when there is allegation that the sexual relationships were made on the basis of false promise of marriage, then it has to be established that promise of marriage was a false promise, given in bad faith and with no intention of being adhered to at the time it was given. In Pramod Suryabhan Pawar v. State of Maharashtra, reported in (2019) 9 SCC 608 , the Apex Court quashed the FIR by observing as under: “18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act. 19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows: 19.1 The complainant and the appellant knew each other since 1998 and were intimate since 2004. 19.2 The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant. 19.3 The appellant expressed his reservations about marrying the complainant on 31.01.2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015. 20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax. 21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 IPC has occurred”. 12. Further the Apex Court in Sonu @ Subhash Kumar vs. State of Uttar Pradesh & Anr., reported in 2021 (2) JKJ 337 [SC], has referred to following three important aspects while quashing the charge sheet: “i. The relationship between eh appellant and the second respondent was of a consensual nature; ii. The parties were in the relationship for about a period of one and half year; and iii. Subsequently, appellant had expressed disinclination to marry the second respondent which led to the registration of F.I.R.” 13. In view of what has been discussed above, the continuance of the investigation pursuant to the impugned FIR shall be nothing but an abuse of process of law, particularly when no prima facie offence under section 376 RPC is made out against the petitioner from the mere perusal of the allegations levelled in the said FIR, as such, the FIR impugned registered with Police Station, Nawabad is quashed. 14. CD file be returned back to Government Advocate. 15. Disposed of.