Delhi High Court
Jitender vs State & Anr. on 29 November, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Crl. M.C. No. 2287/2012
+ Date of Decision: 29th November, 2012
# JITENDER ....Petitioner
! Through: Mr. O.P. Wadhwa& Ms. Ritu
Gupta, Advocates
Versus
$ STATE & ANR. ...Respondents
Through: Mr. M.N. Dudeja, APP for State with
W/ASI Ms.Darshna, PS Mianwali
Nagar
Mr.RajatGulati, Advocate for R-2
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
ORDER
P.K.BHASIN, J:
This petition has been filed by the petitioner-accused under
Section 482 of the Code of Criminal Procedure, 1973 for quashing
of the FIR no. 94/2012 dated 26th April, 2012 registered against
him at Mianwali Nagar Police Stationat the instance of respondent
no. 2 under Sections 376/506 of the Indian Penal Code, 1860.
2. During investigation the respondent no. 2/ complainant,
however, had made a statement on 30/04/2012under Section 164
of the Criminal Procedure Code before the Magistrate exonerating
the petitioner against whom she had in her FIR alleged that he had
raped her. However, the police charge-sheeted the petitioner.
3. The petitioner has now filed this petition for quashing of the
FIR as well as the charge sheet filed in the Court on the ground
that the complainant/respondent no. 2 having herself repudiated
the fact that rape was committed on her by the petitioner before the
Magistrate in her statement under Section 164 of Cr.P.C. no useful
purpose would be served by continuing his prosecution.
4. An affidavit dated 10th July, 2012 was filed by the
complainant/respondent no.2 in this matter that she had rightly
stated in her statement under Section 164 of Cr.P.C. that she was
not raped by the petitioner and so the FIR could be quashed. She
appeared in Court also on 30.08.2012 and had reiterated the same
thing and had also stated that matter had been compromised also.
5. The learned counsel for the petitioner while arguing before
this Court for quashing of the FIR and charge-sheet relied upon an
order dated 22.02.2010 of the Hon'ble Supreme Court in SLP
(Crl.) No. 2900/2009 (arising from the judgment and the order
dated 16.01.2009 in 113/2009 of the Delhi High Court) in which
case also quashing of FIR under Section 376 IPC was sought in
view of some settlement between the accused and the prosecutrix.
The Apex Court passed the following order:
"An affidavit has also been filed by respondent no.2, inter alia,
stating that since the matter has been compromised with the petitioner and
for the purpose of rehabilitation, she has decided that the alleged offence of
rape, giving rise to FIR No. 111 of 2007, registered at Police Station
Aadarsh Nagar, be treated as consented and may not be treated as an
offence punishable under Section 376 of the Indian Penal Code.
Deponent/respondent No. 2 is present in Court and has been identified by
her counsel. She affirms the contents of the affidavit.
In the light of the said affidavit and having regard to the peculiar
facts and circumstances of the case, when both the parties are now trying
to rehabilitate themselves, we feel that no useful purpose would be served
in keeping the said FIR alive.
Accordingly, without going into the merits of the FIR it is quashed.
The amount deposited by the petitioner in this Court shall be disbursed to
respondent no.2 by means of a demand draft in her favour. The amount of
Rs. 4 lakhs stated to have been deposited in the high Court shall also be
paid to the said respondent
The special leave petition stands disposed of in the above terms"
6. However, in my view the petitioner cannot derive any benefit
from the said order of the Apex Court since it was passed in "the
peculiar facts and circumstances of the case." The Apex Court in
its detailed judgment dated 24/09/2012 in "Gian Singh v. State of
Punjab", (2012) 9 SCALE 25 clearly laid down that FIRs
involving heinous offences like rape, murder etc. cannot be
quashed by the High Court in exercise of its inherent powers under
Section 482 Cr.P.C. even if the victim and the offender have
arrived at some settlement as these offences are not private in
nature and have a serious impact on the society. And as far as the
statement of the prosecutrix under Section 164 Cr.P.C. is
concerned I am of the view that the criminal proceedings cannot be
quashed even if the prosecutrix has exonerated the petitioner in
that statement. Effect of that statement can be considered only by
the trial Court if the prosecutrix supports the prosecution case after
entering the witness box and the accused confronts her with her
statement under Section 164 Cr.P.C. This Court simply by taking
note of that statement cannot quash the trial of the petitioner in
which prosecution evidence is being recorded and prosecutrix is
yet to be examined.
7. Accordingly, this petition is dismissed.
P.K. BHASIN, J
NOVEMBER 29, 2012
