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2022 DIGILAW 92 (JK)

Kapil Dhar v. State of J&K

2022-03-09

SANJAY DHAR

body2022
JUDGMENT : Sanjay Dhar, J.-Petitioner has challenged FIR No.277/2015 for offences under Section 376/420 RPC and the challan emanating there from, which is stated to be pending before the Court of 3rd Additional Sessions Judge, Jammu. 2. According to the petitioner he has entered into wedlock with complainant/prosecutrix vide marriage agreement dated 12.01.2015 against the wishes of his parents on account of the fact that complainant belongs to a different caste. The petitioner claims that he had offered the complainant to live with her in a separate residence but she insisted upon living with him only in the parental house. The petitioner further claims that his wife, the prosecutrix, filed a report with Police Station, Women Cell, Jammu, wherein she complained that the petitioner is not ready to rehabilitate her but thereafter the complainant/prosecutrix lodged a complaint before Judicial Magistrate, 1st Class, City Judge, Jammu, alleging therein that petitioner has committed sexual intercourse with her on the false promise of marriage. The FIR came to be registered pursuant to the orders of the learned Magistrate and after investigation, the impugned challan came to be filed before the trial court. 3. Petitioner has challenged the impugned FIR and the challan emanating there from primarily on the ground that that the offence under Section 376/420 RPC is not made out against the petitioner as he happens to be the husband of complainant/prosecutrix. According to the petitioner, continuance of criminal proceedings against him in these circumstances amounts to abuse of process of law. 4. No reply has been filed by the official respondents. During pendency of the proceedings, the complainant/prosecutrix was made a party to the petition. However, she could not be served and according to the service report, her mother informed that she has, of her own accord, entered into wedlock with some unknown person and her whereabouts are not known. 5. I have heard learned counsel for the parties and perused the material on record including the trial court record. 6. As per the allegations made in the charge sheet, which is based upon the complaint made by the prosecutrix before the Judicial Magistrate 1st Class (City Judge), Jammu, the petitioner came in contact with the prosecutrix in the year 2011 and offered to marry her. Initially, the complainant refused the offer but when the petitioner expressed his love for the complainant, she agreed to his request. Initially, the complainant refused the offer but when the petitioner expressed his love for the complainant, she agreed to his request. According to the complainant, on the basis of this promise of marriage, the petitioner indulged in sexual intercourse with her several times. She goes on to allege that in October, 2012, the petitioner filmed her nude photographs and threatened that if she would not marry him, he would circulate these nude photographs. In the month of March, 2014, the petitioner approached the complainant again and held out assurance about their marriage. He also introduced the complainant with his parents and continued to enjoy sex with her till November, 2014. The complainant further submits that she asked the parents of the petitioner to transfer their property in favour of the petitioner who started demanding dowry in the shape of cash and kind. The petitioner and the complainant executed a marriage agreement on 12th January, 2015 and the petitioner assured the complainant that they will solemnize marriage as per Hindu rites and customs in Arya Samaj Mandir after two months but when the marriage was not solemnized, the complainant approached Police Post, Chinore, for registration of the FIR but the parents of petitioner again assured her that the marriage ceremony would take place. 7. According to the complainant, on 04.09.2015, the petitioner along with his parents and the complainant along with her parents went to the Court Complex, Jammu, for executing agreement for solemnization of marriage but the agreement that was in possession of the complainant was snatched away by the petitioner and he as well as his parents used abusive language against her. This compelled the complainant to file a complaint before Judicial Magistrate 1st Class, Jammu, which resulted in registration of the impugned FIR. After investigation of the case, the allegations made in the complaint were substantiated by material on record and, accordingly, offences under Section 376 and 420 RPC were found established against the petitioner. 8. A perusal of the statements of the material witnesses to the charge sheet, particularly the statement of the prosecutrix recorded under Section 164-A Cr. P. C, reveal certain facts which have an important bearing on the fate of this case. In her statement recorded under Section 164-A Cr. 8. A perusal of the statements of the material witnesses to the charge sheet, particularly the statement of the prosecutrix recorded under Section 164-A Cr. P. C, reveal certain facts which have an important bearing on the fate of this case. In her statement recorded under Section 164-A Cr. P. C, the prosecutrix has on the one hand reiterated the averments made by her in the complaint which has become basis of the impugned FIR but at the same time she has narrated that on 12.01.2015, she solemnized marriage with the petitioner in Court. She further stated that after this incident, the petitioner assured her that they will solemnize marriage in Arya Samaj Mandir but instead of taking her to Arya Samaj Mandir, the petitioner took her to Aap Shamboo Mandir at Roop Nagar, where he applied vermilion on her “Maang” and they also took photographs during this ceremony. She further stated that she narrated to the police of Police Post, Chinor, that they have entered into wedlock. According to the prosecutrix, the petitioner did not take her to his house and told her that he would take her to his house only after celebrating the marriage in a big way. She further stated that after this marriage ceremony, the petitioner would proclaim himself as her husband and would demand physical relations with her. The prosecutrix also stated that after the marriage, the petitioner started behaving in an overbearing manner with her and he also started ignoring her. She claims that the petitioner threatened to divorce her. The prosecutrix further stated that her marriage with the petitioner came to the notice of her parents when he threatened to divorce her and she narrated this incident to them. The prosecutrix has also stated that after getting fed up with the attitude of the petitioner, she made a complaint before Police Station, Women Cell, Jammu. According to the prosecutrix, a compromise was arrived at and a compromise deed was drafted in which it was written that the petitioner has solemnized marriage with her but the said agreement was snatched by sister of the petitioner and was torn apart which prompted her to lodge the impugned FIR. 9. What comes to the fore from the foregoing statement of the prosecutrix is that she admits that she has entered into wedlock with the petitioner, who has also admitted this fact in the petition. 9. What comes to the fore from the foregoing statement of the prosecutrix is that she admits that she has entered into wedlock with the petitioner, who has also admitted this fact in the petition. On the record of the challan there is a copy of the complaint filed by the prosecutrix before Police Station, Women Cell, Gandhi Nagar, Jammu, in which the prosecutrix has clearly stated that she has entered into wedlock with the petitioner on 12th January, 2015. She has complained to the police that her husband i.e. petitioner herein is not taking her to his home and is avoiding her. She requested the police that she may be taken to her matrimonial house so that she resides with her husband over there. Thus, there is sufficient material on record to suggest that the prosecutrix and the petitioner have entered into wedlock. 10. In the face of aforesaid overwhelming material on record to suggest that there is a relationship of husband and wife between the petitioner and the prosecutrix, the question arises as to whether offence under Section 376 RPC is made out against the petitioner or, in other words, is it a case of giving consent for having sexual intercourse on the basis of a false promise of marriage. 11. A situation of false promise of marriage would arise only if a person induces or obtains the consent of a girl for having sex with her by extending a promise to marry which he knows is false/dishonest from the very inception. In the instant case there is overwhelming material on record to show that the petitioner and the prosecutrix have entered into wedlock. It appears that the said wedlock has not been given recognition or blessings by the parents of the petitioner but that does not make the marriage between the petitioner and the prosecutrix as non-existent when both of them are, admittedly, major persons. The only grouse of the prosecutrix, as it appears from the contents of the complaint made to the Women’s Police Station as well as her statement recorded under Section 164-A Cr. P. C, is that the petitioner is not mustering courage to take her to his parental house as his wife. So, she has been claiming her rights and privileges as a wife right from the beginning starting with the filing of a complaint before Police Station, Women Cell, Jammu. P. C, is that the petitioner is not mustering courage to take her to his parental house as his wife. So, she has been claiming her rights and privileges as a wife right from the beginning starting with the filing of a complaint before Police Station, Women Cell, Jammu. It seems that for enforcing her aforesaid rights and privileges as wife of the petitioner, the prosecutrix has resorted to filing of a complaint alleging commission of sexual intercourse by the petitioner upon her on the false promise of marriage. Commission of sexual intercourse by a person with his own wife who is aged more than 18 years does not come within the definition of “Rape” as contained in Section 375 of the RPC. Thus, allegations made in the complaint are belied by the own stand taken by the prosecutrix in her statement recorded under Section 164-A Cr. P. C and her earlier complaint lodged with the police. The investigating agency without taking these material aspects into consideration has filed the challan against the petitioner for the offences which are not disclosed at all against him. 12. In a recent case titled Shafiya Khan @ Shakuntala Prajapati vs. State of U. P. & anr. (Criminal Appeal No.200 of 2022 decided on February 10, 2022) the Supreme Court has, after noticing the principles laid down in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others, AIR 2021 SC 1918 , observed that when the material collected in support of the allegations made in a complaint or FIR do not support the said allegations, continuance of criminal proceedings would be a clear abuse of process of law. Paras 19 and 20 of the judgment are relevant to the context and the same are reproduced as under: “19. Paras 19 and 20 of the judgment are relevant to the context and the same are reproduced as under: “19. Although it is true that it was not open for the Court to embark upon any enquiry as to the reliability or genuineness of the allegations made in the FIR, but at least there has to be some factual supporting material for what has been alleged in the FIR which is completely missing in the present case and documentary evidence on record clearly supports that her Nikah Nama was duly registered and issued by competent authority and even the charge sheet filed against her does not prima facie discloses how the marriage certificate was forged. 20. In the given circumstances and going through the complaint on the basis of which FIR was registered and other material placed on record, we are of the considered view that no offence of any kind as has been alleged in the FIR, has been made out against the appellant and if we allow the criminal proceedings to continue, it will be nothing but a clear abuse of the process of law and will be a mental trauma to the appellant which has been completely overlooked by the High Court while dismissing the petition filed at her instance under Section 482 Cr.PC.” 13. From the foregoing enunciation of law on the subject, it is clear that it is not only the allegations made in the complaint but it is also the material that has been assembled by the investigating agency in support of those allegations which is required to be analysed by the Court while deciding as to whether proceedings in a particular case deserve to be quashed. It is true that High Court in exercise of its jurisdiction under Section 482 Cr.P.C would not embark upon an enquiry as to the veracity of the allegations made in the FIR or complaint but then when full-fledged investigation has taken place and the material collected during investigation of the case do not support the allegations made in the complaint/FIR, the Court would be well within its jurisdiction to quash the criminal proceedings. As already noticed, in the instant case the material annexed to the charge sheet does not support the allegations made in the FIR, as such, the proceedings deserve to be quashed. 14. For the foregoing reasons, the petition is allowed. As already noticed, in the instant case the material annexed to the charge sheet does not support the allegations made in the FIR, as such, the proceedings deserve to be quashed. 14. For the foregoing reasons, the petition is allowed. The impugned FIR and the proceedings emanating there from are quashed. 15. Copy of this order be sent to learned trial court for information.