- Court
- High Court of Punjab and Haryana
- Decided
- 7 March 2024
- Bench
- Manisha Batra
- Case no.
- CRM-M 45428/2023
Judgment
MANISHA BATRA , J.(Oral)
¶1The instant petition has been filed under Section 482 of Cr.P.C. by the petitioners seeking quashing of FIR No.243 dated
03.08.2023 registered under Section 354-A, 376, 377 and 506 read with Section 34 of IPC at Police Station HSIDC Barhi, District Sonipat, Haryana, on the basis of compromise by way of affidavit dated
16.08.2023 (Annexure P-2).
¶2Brief facts of the case relevant for the purpose of disposal of this petition are that the aforementioned FIR was registered on the basis of written complaint filed by respondent No.2-complainant "K" (name withheld) alleging therein that the petitioner No.1-Ravi had brought her from Gurugram to Village Lalehri about three years back on the pretext of performing marriage with her and he had been subjecting her to acts of sexual intercourse and several times, he had even committed acts of carnal intercourse against the order of nature with her. She had become pregnant twice and every time, the petitioner had got her pregnancy aborted by giving some medicines to her. The petitioners No.2 to 6 who are family members of the petitioner No.1 also kept on giving inducement to the complainant that they would get her married with the petitioner No.1 at the appropriate time. She alleged that on 17.06.2023, the petitioner No.3 had tried to molest her and when she complained about this fact to petitioner No.1 then instead of taking any action against the petitioner No.3, he rather started assaulting her and extended threat to kill her. On 14.07.2023, he took the entire household articles from the room wherein the complainant was staying with the petitioner on the pretext that they were shifting elsewhere but did not come back to take her along with him and then informed her on phone that his matrimonial alliance was fixed elsewhere and that he was going to reside at Rajasthan with his parents. After registration of FIR, investigation proceedings were initiated. The trial is going on.
¶3The present petition has been filed by the petitioners submitting that a compromise has been arrived at between the complainant and themselves. Respondent No.2-complainant/prosecutrix has executed in the form of an affidavit, compromise with the petitioners thereby, agreeing to quash the FIR of this case. Prayer, therefore, has been made for allowing the petition.
¶4It will not be out of place to mention here that learned counsel for respondent No.2 has also affirmed the fact that a compromise has been arrived at between the complainant and the petitioners. She has submitted MANJU that the respondent No.2 has no objection, if the FIR is quashed.
¶5Status report has been filed by the respondent-State and the same is taken on record. Learned State counsel, on the other hand, has opposed the prayer made by the petitioners by arguing that there are serious allegations against the petitioners. The offence for which they have been booked falls within the category of heinous crime. The compromise between the parties is not permissible in law. By submitting that the petition is misconceived and cannot be allowed, she has urged that the same is liable to be dismissed.
¶6It will also be relevant to mention here that vide order dated
13.09.2023 passed by this Court, the parties were directed to appear before the learned trial Court on 29.09.2023 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 petitioners and the Investigating Officer had been recorded on 30.09.2023. It is also reported that the trial Court was satisfied that the compromise between the parties was genuine and without any undue influence.
¶7There 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 Vs. 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 MANJU 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 uncontroverted 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 MANJU 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."
¶8Reference can also be made to Narinder Singh and Ors. Vs. 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 petitioners have been booked and charge sheeted in this case for commission of offences punishable under Sections 354-A, 376, 377 and 506 read with Section 34 of IPC on the allegations that petitioner No.1 in connivance with petitioners No.2 to 6, committed rape upon the MANJU respondent No.2 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. The Hon'ble Supreme Court had observed in Pramod Suryabhan Pawar Vs. 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". MANJU 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.
¶12In view of the above discussed position of law, it is to be seen whether any offence of rape which is the main substantive offence in this case is 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 No.1 and respondent No.2 are major. It has not been indicated from the circumstances of the case that the promise given by the petitioner No.1 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 subject offences are not prima facie established and allegations on the face of the record cannot be taken to be true.
¶13In similar circumstances, as discussed above, the Hon'ble Supreme Court had allowed quashing of chargesheet and the order taking cognizance thereunder in Shambhu Kharwar Vs. 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 MANJU consensual nature and had allowed quashing of charge sheet and cognizance order.
¶14Reference can also be made to Ananda D.V. Vs. 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.
¶15It 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 MANJU 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 settle 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.
¶16On 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 Sections 354-A, 376, 377 and 506 read with Section 34 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 30.09.2023 confirming the factum of amicable settlement by stating that they have voluntarily arrived at a compromise, 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 MANJU case where continuance of the proceedings against the petitioner is likely to cause greater prejudice to the victim and oppression to 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 it 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. 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.243 dated 03.08.2023 registered under Section 354-A, 376, 377 and 506 read with Section 34 of IPC at Police Station HSIDC Barhi, District Sonipat, Haryana and the consequential proceedings arising therefrom, are ordered to be quashed and the petition stands allowed as against the petitioners. (MANISHA BATRA)
07.03.2024 JUDGE manju
Case details
Parties and counsel
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 07.03.2024 Ravi and others ... Petitioners Versus State of Haryana and another ... Respondents CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Present: Mr. Vikas Gulia, Advocate, for the petitioner. Ms. Nidhi Garg, AAG, Haryana. Ms. Rashi Shahrawat, Advocate, for respondent No.2. ***
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