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2024 DIGILAW 99 (JK)

Rakesh Kumar v. UT of J&K

2024-03-05

SANJAY DHAR

body2024
JUDGMENT : Sanjay Dhar, J. 1. The petitioner has challenged FIR No. 6/2022 for offences under section 376 and 420 IPC registered with Police Station, Women Cell, Kathua. 2. It appears that the impugned FIR has been registered on the basis of the complaint made by Respondent No. 2 in which she had alleged that in the year 2017, she was asked by the petitioner to have a relationship with him and accordingly, they started meeting each other in the college. It was further alleged that after a few meetings, the petitioner agreed to enter into wedlock with the Complainant/Respondent No. 2 and on 09.07.2018, a document came to be executed by the parties in the court at Hiranagar. It was further alleged in the complaint that one day, she was taken by the petitioner to a house on the pretext of taking her to Jasrota Mata Mandir at Rajbagh where her consent to have sexual intercourse was obtained by the petitioner on the promise of marriage. According to the complainant, thereafter the petitioner had sexual intercourse with her on a number of occasions by representing himself as her legally wedded husband. In October, 2019, when the complainant asked the petitioner to take her to matrimonial home, he refused to do so and told her that the agreement executed by them has no legal force as it was mere an agreement to marry. Thus, according to the complainant, her consent to sexual intercourse with the petitioner was obtained under misconception of fact, as such, the petitioner has committed the offences punishable under section 376/420 IPC. 3. On the basis of the aforesaid complaint, the impugned FIR came to be registered. During the investigation of the impugned FIR, it seems that the parties have entered into a settlement. In fact the petitioner has entered into wedlock with Respondent No. 2. In this regard, the petitioner has placed on record a copy of the marriage agreement and a copy of the marriage certificate issued by Arya Samaj. 4. Respondent No. 2/complainant in her objections to the petition has submitted that the impugned FIR was lodged by her when there was a dispute going on between her and the petitioner, as a result of which, in the heat of moment, she lodged the said FIR. 4. Respondent No. 2/complainant in her objections to the petition has submitted that the impugned FIR was lodged by her when there was a dispute going on between her and the petitioner, as a result of which, in the heat of moment, she lodged the said FIR. It has also been submitted that the relationship between the petitioner and her is smooth and they have solemnized the marriage and that they are living happily together. 5. Pursuant to order dated 15.02.2024 passed by this Court, statements of the petitioner and Respondent No. 2 have been recorded by the Registrar Judicial. In their statements recorded by learned Registrar Judicial, both the petitioner as well as Respondent No. 2 have submitted that they have entered into wedlock and that they have been blessed with a female child. They have also stated that they are living happily together. 6. Heard and considered. 7. As per the impugned FIR, the petitioner is alleged to be involved in commission of offences under section 376/420 IPC. Both these offences are non-compoundable in nature. The question arises as to whether in the present facts and circumstances of the case, the offences should be allowed to be compounded and whether the proceedings deserve to be quashed. 8. In the above context, it would apt to refer to the legal position enunciated by the Supreme Court in some of the cases. 9. The Supreme Court in the case of Parbatbhai Aahir & Ors. v. State of Gujarat & Anr. Criminal Appeal No. 1723 of 2017, after discussing various precedents on the subject summarized, the following broad principles in relation to Section 482 for quashing FIR: “(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court. (ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under section 482 is attracted even if the offence is non compoundable. (iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power. (iv) While the inherent power of the High Court has a wide ambit and plentitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court. (v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. (vi) In the exercise of the power under section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim has settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. (vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned. (viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavor may in appropriate situations fall for quashing where parties have settled the dispute. (ix) In such a case, the High Court may quash the criminal proceedings if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice. (ix) In such a case, the High Court may quash the criminal proceedings if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice. (x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanor. The consequences of the act complained of upon the financial or economic system will weigh in the balance.” 10. Again, the Supreme Court has, in the case titled, Kapil Gupta v. State of NCT of Delhi, 2022 SCC Online SC 1030 observed as under: “13. It can thus be seen that this Court has clearly held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Court has also to take into consideration as to whether the settlement between the parties is going to result into harmony between them which may improve their mutual relationship. 14. The Court has further held that it is also relevant to consider as to what is stage of the proceedings. It has been observed that if an application is made at a belated stage wherein the evidence has been led and the matter is at the stage of arguments or judgment, the Court should be slow to exercise the power to quash the proceedings. However, if such an application is made at an initial stage before commencement of trial, the said factor will weigh with the court in exercising its power. xxxxxxxxxxxxxxxxxxx 17. However, if such an application is made at an initial stage before commencement of trial, the said factor will weigh with the court in exercising its power. xxxxxxxxxxxxxxxxxxx 17. In that view of the matter, we find that though in a heinous or serious crime like rape, the Court should not normally exercise the powers of quashing the proceedings, in the peculiar facts and circumstances of the present case and in order to give succour to Respondent No. 2 so that she is saved from further agony of facing two criminal trials, one as a victim and one as an accused, we find that this is a fit case wherein the extraordinary powers of this Court be exercised to quash the criminal proceedings.” 11. Let us now analyse the facts of the instant case in the light of the law discussed hereinbefore. In the present case, the parties have settled their dispute and in fact they have entered into a wedlock, where after they have been blessed with a female child. The petitioner and Respondent No. 2 have clearly stated that they are presently married and are living happily together. The fact that the petitioner has entered into wedlock with Respondent No. 2 shows that his promise to marry Respondent No. 2 was neither false nor to satisfy his sexual urge but the same was genuine. The subsequent events that have taken place go on to show that offences under section 376/420 IPC are not established against the petitioner. 12. In the above circumstances, when there is no possibility of securing conviction against the petitioner or even presenting the challan against him, it would be a futile exercise to allow the criminal proceedings to proceed on the basis of the impugned FIR. Even otherwise, continuance of the criminal proceedings against the petitioner is going to serve nobody's interest and it may lead to frittering away the fruits of compromise that has been arrived at between the petitioner and Respondent No. 2. The continuance of criminal proceedings against the petitioner would amount to abuse of process of law as he is now happily living a married life with the complainant and both are blessed with a child. 13. For the foregoing reasons, this is a fit case where this Court should exercise its powers under section 482 Cr.P.C. to quash the impugned FIR and the proceedings emanating there from. 13. For the foregoing reasons, this is a fit case where this Court should exercise its powers under section 482 Cr.P.C. to quash the impugned FIR and the proceedings emanating there from. Accordingly, the petition is allowed and the impugned FIR and the proceedings emanating there-from are quashed. 14. Disposed of.