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2024 DIGILAW 221 (PNJ)

Deepak Kumar v. State of Haryana

2024-01-23

MANISHA BATRA

body2024
JUDGMENT Mrs. Manisha Batra, J. (Oral) The instant petition has been filed under Section 482 of Cr.P.C. by the petitioner seeking quashing of FIR No. 165 dated 20.09.2021, registered under Sections 376, 379A and 506 of the IPC at Police Station Raipur Rani, Panchkula along with the all the subsequent proceedings arising therefrom, on the basis of the compromise (Annexure P-2) arrived at between the parties. 2. Brief facts of the case relevant for the purpose of disposal of this petition are that the aforementioned FIR was registered on the basis of a written complaint submitted by respondent No. 2/complainant 'K' (name withheld) alleging therein that she was a divorced woman and had a four years' old daughter. She had been in relationship with the petitioner for the last one year and two months. The petitioner was known to these facts. She alleged that the petitioner had been making physical relations with her for the last one year on the pretext of performing marriage with her. On 20.09.2021, the petitioner threatened her to commit suicide if she compelled him to perform marriage with her and would also implicate her in a false case. The petitioner had also snatched her mobile phone but the complainant had taken the same back. She prayed for taking legal action against the petitioner. During investigation, the petitioner was arrested and subsequently, he was released on bail. The trial is going on. 3. Learned counsel for the petitioner has submitted that both the parties are major. They had physical relations with each other with their consent. They have now got married on 13.11.2021 and are residing together. They are leading a happy and peaceful life. No useful purpose would be served by keeping the criminal proceedings pending against the petitioner as chances of his conviction are remote and bleak as the complainant herself has turned hostile during trial. It is, therefore, urged that the petition deserves to be allowed. 4. Learned counsel for respondent No. 2/complainant has admitted to the factum of compromise entered into between the parties and has submitted that respondent No.2/complainant had got married with the petitioner on 13.11.2021 and now they are residing together happily as husband and wife. The complainant has no objection if the FIR is quashed. Copy of marriage certificate showing that they had performed marriage on 13.11.2021 has been placed on record as Annexure P-3. 5. The complainant has no objection if the FIR is quashed. Copy of marriage certificate showing that they had performed marriage on 13.11.2021 has been placed on record as Annexure P-3. 5. Learned State counsel has opposed the prayer of the petitioner by arguing that the petitioner is accused of committing offence punishable under Section 376 of the IPC, which is quite serious in nature and falls within the category of heinous crime. The compromise between the parties is not permissible in law. While stressing that the petition is misconceived, he has urged that the same is liable to be dismissed. 6. It will also be relevant to mention here that vide order dated 17.11.2023 passed by this Court, the parties were directed to appear before the learned trial Court on 18.12.2023 for recording their statements with regard to the compromise/settlement. The trial Court was directed to submit its report. A report has been submitted by the trial Court as per which the statements of the respondent No.2/complainant, the present petitioner and the Investigating Officer had been recorded on 03.01.2024. It is also reported that the trial Court was satisfied that the compromise between the parties was genuine and without any undue influence. 7. There are catena of judgments of Hon'ble Supreme Court whereby, parameters governing the exercise of jurisdiction of Section 482 of the Code of Criminal Procedure are well settled. In a celebrated judgment cited as State of Haryana v. Bhajan Lal, 1992 SUPP (1) SCC 335, the Hon'ble Supreme Court has discussed different categories of cases wherein, the power under Section 482 Cr.P.C. could be exercised either to prevent abuse of process of law or otherwise to secure the ends of justice, while observing that it might not be possible to lay down any precise, clearly defined, sufficiently channelized, inflexible guidelines or rigid formulae and to give an exhaustive list or myriad kind of cases where such powers should be exercised. The following principles have been culled out:- "102 (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code; (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 8. Reference can also be made to Narinder Singh and Ors. Reference can also be made to Narinder Singh and Ors. v. State of Punjab and another, (2014) 6 SCC 466 , wherein the Hon'ble Supreme Court had observed that while exercising power under Section 482 of Cr.P.C., the High Court has to examine as to whether the possibility of conviction of accused is remote and bleak and continuation of criminal case would put him into great oppression and prejudice and injustice would be caused to him by not quashing criminal case. 9. In view of the above discussed position of law qua exercise of inherent powers of the High Court for quashing criminal proceedings, this Court has to consider the question as to whether the quashing of FIR in this case can be allowed. The petitioner has been charge sheeted in this case for commission of offence punishable under Section 376 of IPC along with other sections of IPC on the allegations that he committed rape with the complainant on the pretext of and by making promise to marry her. The offence of 'rape' is defined under Section 375 of IPC setting out certain circumstances. Relevant for the purpose of this case, is the second circumstance that a male subjecting a female to sexual intercourse without her consent, commits offence of rape. As per Explanation-2 of Section 375, 'consent' means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or non verbal communication, communicates willingness to participate in the specific sexual act. It will also be relevant to refer to Section 90 of IPC, as per which a 'consent' given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception, is not consent. 10. It is well settled proposition of law that the 'consent' with respect to Section 375 of IPC, involves an active understanding of the circumstances, actions and consequences of the proposed act. The consent of a women with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. 10. It is well settled proposition of law that the 'consent' with respect to Section 375 of IPC, involves an active understanding of the circumstances, actions and consequences of the proposed act. The consent of a women with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. The Hon'ble Supreme Court had observed in Pramod Suryabhan Pawar v. State of Maharashtra, 2019 (9) SCC 608 that in the context of a promise to marry, there was a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of promise which is made in good faith but subsequently not fulfilled. It was held that where the promise to marry was false and the intention of maker at the time of making the promise itself was to deceive the women to convince her to engage in sexual relations and not to abide by the promise, there was "misconception of fact" that vitiated the woman's "consent". 11. It was also observed in the above cited case that breach of promise, could not be held to be a false promise. On the other hand, to hold a promise of marriage to be false promise, it must be proved to be given in bad faith with no intention of being adhered to at the time, it was given and further that the false promise itself must be of immediate relevance, or bear a direct nexus to the women's decision to engage in the sexual act. 12. In view of the above discussed position of law, it is to be seen whether an offence punishable under Section 376 of IPC has been made out even on assuming all the allegations as set out in the FIR to be correct. In my considered opinion, the answer should be in the negative. The petitioner and the respondent No.2 are major. It has not been indicated from the circumstances of the case that the promise given by the petitioner to marry the respondent No.2 at the very inception of relationship of the parties was false and on the basis of the same, she was induced into sexual relationship. As such, their relationship can be considered to be purely of consensual nature. It has not been indicated from the circumstances of the case that the promise given by the petitioner to marry the respondent No.2 at the very inception of relationship of the parties was false and on the basis of the same, she was induced into sexual relationship. As such, their relationship can be considered to be purely of consensual nature. The facts as they stand and are not in dispute clearly indicate that the ingredients of offence under Section 376 of IPC are not prima facie established and allegations on the face of the record cannot be taken to be true. 13. In similar circumstances, as discussed above, the Hon'ble Supreme Court had allowed quashing of chargesheet and the order taking cognizance thereunder in Shambhu Kharwar v. State of Uttar Pradesh and Anr., 2022 (4) RCR (criminal) 493, wherein the appellant had allegedly given a promise to the respondent to marry, had observed that even as per the allegations in the FIR and the charge sheet, ingredients of offence under Section 375 of IPC were absent and relationship of parties was purely of consensual nature and had allowed quashing of charge sheet and cognizance order. 14. Reference can also be made to Ananda D.V. v. State and another. 2021 All SCR (Criminal) 1175, wherein the gravamen of the allegations in the FIR filed by the private respondent was that the appellant-accused had promised that he would marry her, which promise was not kept by him. The parties resolved their dispute after registration of FIR and had got married. The Apex Court took an overall view of the matter and allowed quashing of FIR and all the steps taken on the basis of impugned FIR were ordered to be treated as effaced from the record in law; to Kundan and another v. State and others, Crl. M.C. No.27 of 2022 decided on 21.02.2022 by High Court of Delhi, wherein an FIR registered under Sections 363, 366 and 376 of IPC read with Section 6 of POCSO Act, 2012 was quashed on the ground that the victim was got married with the accused and had delivered a male boy and to Vaibhav Bhalotia v. State of UT, Chandigarh and another, 2023 (2) RCR (Criminal) 381, wherein the victim of sexual assault had married the petitioner and they were happily residing together after solemnizing the marriage. A Coordinate Bench of this Court while considering the peculiar facts and circumstances held that it would be to secure the ends of justice in the light of amicable settlement having been effected between the parties and it will be for the welfare of the parties and would further tend to strengthen the healthy matrimonial relationship between them that the quashing of proceedings deserve to be allowed and had allowed the same. 15. It is also considered to be important to mention here that the inherent power given to High Court under Section 482 of Cr.P.C. is with the purpose and object of advancement of justice. The touchstone for exercising that power would be to secure the ends of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered in accordance with the law enacted by the Legislature. The concept of justice is elastic and imprescriptible. There can be no hard and fast line constricting the power of the High Court to do substantial justice. The restrictive construction of inherent powers under Section 482 of Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may instead lead to grave injustice. Nonetheless such powers of wide amplitude ought to be exercised carefully in the context of quashing proceedings, bearing in mind, the nature and effect of the offence on the consciousness of the society; the seriousness of the injury, if any; voluntary nature of compromise between the accused and the victim; and conduct of the accused persons, prior to and after the occurrence of the purported offence or other relevant considerations. Reference in this regard can be made to a recent judgment of High Court of Kerala pronounced on 16.11.2023 in Crl. MC No.7497 of 2023, Kahar and others v. State of Kerala and others, wherein it was observed that the viability of quashing a criminal proceeding on the ground that the accused and victim of sexual assault settles the dispute, resolves ultimately around the facts and circumstances of each case and no straitjacket formula can be formulated. MC No.7497 of 2023, Kahar and others v. State of Kerala and others, wherein it was observed that the viability of quashing a criminal proceeding on the ground that the accused and victim of sexual assault settles the dispute, resolves ultimately around the facts and circumstances of each case and no straitjacket formula can be formulated. It was further observed that where the High Court has such facts on record which clearly exhibit that the criminal prosecution involving non-compoundable sexual offences against women and children will result in greater injustice to the victim, its closure would only promote her well being, and the possibility of a conviction is remote, it can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach and very well decide to quash such proceeding upon a compromise between the accused and the victim after taking into account all relevant facts. 16. On considering the peculiar facts and circumstances of the case as noted above, while keeping in view the well established position of law coupled with the reasons aforementioned, to the effect that the ingredients of offence punishable under Section 376 of IPC are not prima facie established as per the allegations on the face of the record, that the parties have recorded statements before learned trial Court on 03.01.2024 confirming the factum of amicable settlement by stating that they have voluntarily arrived at a compromise, the fact that they have performed marriage and are residing happily together, in my considered opinion, not only the possibility of conviction is remote and bleak, even if the proceedings are ordered to be continued but also this is the case where continuance of the proceedings against the petitioner is likely to cause greater prejudice to both the victim as well as the petitioner. In this regard, I am also fortified by observations made by High Court of Madras in Crl.O.P. No.25882 of 2019 and Criminal M.P. No.13776 of 2019 titled as Sanjoy Bhattacharya v. State and another decided on 01.04.2021, which was a case of consensual sex between the parties who had settled the dispute between themselves. It was observed that continuation of criminal proceedings would put the accused to great oppression and prejudice and no purpose would be served in proceeding with the case against the petitioner. It was observed that continuation of criminal proceedings would put the accused to great oppression and prejudice and no purpose would be served in proceeding with the case against the petitioner. As such, it is a fit case for exercising inherent jurisdiction of this Court under Section 482 of the Code, so as to secure the ends of justice and the quashing of FIR would be for the welfare of the parties. Accordingly, FIR No.143 dated 01.11.2021 registered under Section FIR No. 165 dated 20.09.2021, registered under Sections 376, 379A and 506 of the IPC at Police Station Raipur Rani, Panchkula and the consequential proceedings arising therefrom, are ordered to be quashed and the petition stands allowed.