Ajay Singh vs Ut Of J&K & Anr
2023 Latest Caselaw 275 j&K

                                                                                  Sr.No. 4

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                     AT JAMMU

                                                      CRM(M) No. 1058/2022
                                                      CrlM No. 2204/2022

                                                      Reserved on: 21.12.2022
                                                      Pronounced on: 17.02.2023

Ajay Singh                                                               ....Petitioner (s)

                      Through :- Ms. Richa Gupta, Advocate
                                 (Petitioner in person present)
           V/s

UT of J&K & Anr.                                                       ....Respondent(s)



           Through :-              Ms. Mandeep Reen, Advocate for R-2
                                   (Respondent No.2 in person present)
      Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                     O R D E R

17. 02. 2022

1. By invoking the inherent powers jurisdiction under Section 482 of the Code of Criminal Procedure (hereinafter referred as to the „Code‟), petitioner by instant petition seeks quashment of FIR No. 0015/2022 dated 11.03.2022 registered against him in Police Station Pir Mitha Jammu for commission of offences punishable under section 376 IPC on the complaint of respondent No.2.

2. It is averred, that the petitioner belongs to a much respected family having deep roots in the society and is working as a constable (No. 20004797W) in the Indian Army at present posted in 13 RR Kishtwar and has never indulged in any criminal activities in his life, that in March 2022 respondent No.2 lodged a complaint before the Rajasthan Rajya Mahila Aayog which was forwarded by the Chairperson of the Mahila Aayog to Police Station Pir Mitha, Jammu and on the basis of said complaint the FIR in question was lodged, that in the year 2021 petitioner and respondent No.2 developed

friendship over internet (Instagram application) for over a period of four to five months, respondent No.2 voluntarily came to Jammu to meet the petitioner on 09.11.2021 and booked a room in her own name in the Hotel Green Garden located in Prem Nagar Jammu, the petitioner and respondent No.2 developed love and affection for each other and they stayed together for some time on the intervening night of 10.11.2021 and 11.11.2021 and developed some physical intimacy with each other, respondent No.2 under the wrong impression that the love affection between the parties would culminate in marriage proposed marriage to the petitioner and when the latter expressed his inability to marry the respondent there was discord, fights and bad language between the parties. It is moreso averred, that due to the refusal by the petitioner to marry respondent No.2, the latter out of heartburn lodged a complaint before the Chairperson of the Mahila Aayog which culminated into the impugned FIR, thereafter, the petitioner and respondent No.2 compromised with each other regarding the incident and have also executed a compromise deed, the same was duly registered before Notary Jammu Municipality, wherein, it was agreed that the respondent No.2 herein would withdraw/drop all the charges against the petitioner and would not pursue the case against him any further.

3. Vide order of this Court dated 21.12.2022 learned counsel for the petitioner as well as respondent No.2 stated that the parties have amicably settled the disputes/issues at their own level. Therefore, on the submission of learned counsel for the parties, the learned counsels were directed to get recorded the statements of the parties before the Registrar Judicial of this Court. Petitioner has supported the averments of the petition by an affidavit.

4. Pursuant to the order dated 21.12.2022, Registrar Judicial has recorded the statements of the parties, the same are placed on record, which read as under:-

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Statement of Ajay Singh (petitioner); Age; 25; S/o Mahasu Ram R/o Village Tika Karoon, Post Office Dhunera, District Pathankot, Punjab on oath today i.e 21.12.2022;

"Stated, that I have amicably resolved all disputes and issues with Anju Baniwal (respondent No.2). A compromise deed dated 14.12.2022, duly attested and registered on 14.12.2022 by Notary Jammu Municipality has also been executed between us in this regard. Further, I have not committed offence alleged in impugned FIR. In view of our compromise, I pray before the Hon‟ble Court to quash FIR No. 0015/2022 dated 11.03.2022 lodged at Police Station Pir Mitha, Jammu for commission of offence under Section 376 IPC."

Statement of Anju Baniwal (respondent No.2); Age; 20; D/o ManrupBaniwal; R/o Satya Bihar Colony, Distruct Jaipur, Rajasthan, A/p Ward No.01, Nosera, Bikaner, Rajasthan on oath today i.e 21.12.2022;

"Stated, that I have amicably resolved all disputes and issues with Ajay Singh (petitioner). A compromise deed dated 14.12.2022, duly attested and registered on 14.12.2022 by Notary Jammu Municipality has also been executed between us in this regard. Further, I have no grievance against Ajay Singh (petitioner) and I do not want to pursue the matter further. In view of our compromise, I have no objection in case Hon‟ble Court quashes FIR No. 0015/2022 dated 11.03.2022 lodged in Police Station, Pir Mitha, Jammu for commission of offence under Section 376 IPC."

5. Hon‟ble Supreme Court of India in a case titled "Kapil Gupta vs State of NCT of Delhi &Anr.", decided on 10.08.2022 in Criminal Appeal No. 1217 of 2022 and SLP(Crl.) No. 5806 of 2022, while quashing FIR in rape case u/ss 376 IPC and observing that as compromise has occurred between the parties, charges are yet to be framed, and if trial is permitted to go, it will end in nothing else than an acquittal, in paras 12, 13, 14, 15, 16, 17 & 18 held as under:-

12. No doubt that the learned ASG is right in relying on various judgments of this Court which reiterate the legal position that in heinous and serious offences like murder or rape, the Court should not quash the proceedings. It will be relevant to refer to paragraph 29.5 to 29.7 of the judgment of this Court in the

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case of Narender Singh versus State of Punjab1, which read thus:

"29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6 Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision.

It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor.

On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7 While deciding whether to exercise its power under Section 482 of the Code

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or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the chargesheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."

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

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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.

15. The facts and circumstances as stated hereinabove are peculiar in the present case. Respondent No.2 is a young lady of 23 years. She feels that gong through trial is one case, where she is a complainant and in the other case, wherein she is the accused would robe the prime of her youth. She feels that if she is made to face the trial rather than getting any relief, she would be faced with agony of undergoing the trial.

16. In both the cases, though the charge sheets have been filed, the charges are yet to be framed and as such, the trial has not yet commenced. It is further to be noted that since the respondent No.2 herself is not supporting the prosecution case, even if the criminal trial is permitted to go ahead, it will end in nothing else than an acquittal. If the request of the parties is denied, it will be amounting to only adding one more criminal case to the already overburdened criminal courts.

17. In that view of the matte, 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 succor 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

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a fit case wherein the extraordinary powers of this Court be exercised to quash the criminal proceedings.

18. In that view of the matter, the appeal is allowed and proceedings in the criminal cases arising out of following FIRs are quashed and set aside: 1. FIR No.569/2020 registered at Police Station, Mehrauli, New Delhi (Rape) 2. FIR No.824/2020, registered at Police Station, Mehrauli, New Delhi (Extortion).

6. Ratio of the judgment of Kapil Gupta‟s case (supra) makes the legal proposition abundantly clear, that the High Court has inherent powers under Section 482 of Cr.P.C to quash the proceedings to meet the ends of justice subject to the parameters that, if the parties have settled their disputes amicably by a compromise even in a heinous and serious offence of rape, if the application/petition is made at an earliest stage even though charge sheet has been filed but charges are yet to be framed and trial has not commenced, and even if the criminal trial is permitted to go ahead it will end in nothing else than an acquittal. Ratio of the judgment (supra) squarely applies to the facts of the case in hand. Bare perusal of the statements of petitioner and respondent No.2 placed on record demonstrate that the parties have entered into a compromise whereby they have settled their disputes/issues. This Court has been informed that the charge sheet has not been filed yet in the competent court and the investigation of the case is in the domain of the investigating officer. Petitioner-Ajay Singh and respondent No. 02 Anju Baniwal are in the prime of their age as 25 years and 20 years respectively. The parties have made petition before this Court at an initial stage, as the trial has not commenced yet and the charge sheet has not yet been filed by the I.O. If the parties are made to face the trial, rather than getting any relief, the parties would be faced with agony of undergoing the trial, and even the trial would end nothing else than an acquittal, which will only add one more criminal case to the already overburdened criminal courts.

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7. In view of the above, this petition stands allowed.

Consequently, FIR No. 0015/2022 dated 11.03.2022 registered with Police Station Pir Mitha Jammu for the commission of offence punishable under section 376 IPC against the petitioner on the complaint of respondent No.2 alongwith all consequential proceedings arising there from, in view of compromise arrived at between the parties, stand quashed.

8. Disposed of accordingly alongwith all connected CM(s).

9. Copy of this order be sent to SHO Police Station, Pir Mitha, Jammu for information and compliance.

(Mohan Lal) Judge

Jammu:

17.02.2023 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

CRM(M) No. 1058/2022