Neeraj Kumar vs Ut Of J&K & Anr
2023 Latest Caselaw 277 j&K

                                                                   Sr.No. 2

            HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU

                                                  CRM(M) No. 122/2020
                                                  CrlM No. 299/2020

                                                  Reserved on: 21.12.2022
                                                  Pronounced on: 17.02.2023

Neeraj Kumar                                                       ....Petitioner(s)

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

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


         Through :-            Mr. Pawan Dev Singh, Dy AG for R-1
                               Mr. Sumant Sudan, Advocate for R-2
                               (Respondent No.2 in person present)
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                   ORDER

17.02.2023

1. By invoking the inherent powers jurisdiction under Section 482 of the Code of Criminal Procedure (hereinafter referred as to the „Code‟), petitionerby instant petition seeks quashment of FIR No. 266/2017 dated 16.11.2017registered against him in Police Station R.S.Pura, District Jammu for the commission of offence punishable under section 376 RPC, on the complaint of respondent No.2.

2. It is averred, thatthe petitioner at the time of alleged incident wasemployed in Merchant Navy and got to know respondent No.2 around year 2016 through Facebook just before completion of his Merchant Navy course and later both exchanged Whatsapp numbers over which respondent No.2 used to insist him to marry her, petitioner came to Jammu around June 2017 and got in touch with respondent No.2 and left around second weekof November and through his family members came to know about this false and frivolous FIR which was lodged by respondent No.1 on the false narrative of respondent No.2, that respondent No.2 also hide the fact of her being engaged when she used to communicate with petitioner and compulsively asked him to marry her despite of being 2CRM(M) No. 122/2019

engaged at that time but due to unknown reasons her previous engagement got broken so afterthat respondent No.2 and her family asked the petitioner to marry her.It is moreso averred, that the petitioner‟s family was not in favour of their marriage and as a result respondent No.2 and her family started using coercive methods and criminal intimidation by threatening petitioner‟s family of giving false statements to police to force them into solemnization of marriage between petitioner and respondent No.2 whereasrespondent No.2 also reiterated same false narrative in her statement given u/s 164-A of Cr.PC,during investigation medical examination was also conducted and the concerned medical report dated 18.11.2017 doesn‟t support the allegation of rape,the medical report filed alongwith the investigation negates this whole theory and any narrative given by respondent No.2. It is averred, that due to nature of the petitioner‟s employment he never came back to Jammu and now the Final Report has been filed by the police in Court on 29.12.2019 which is unnecessary harassment to petitioner and his family on the false report filed by respondent No.2, respondent No.2 is now married from past one and half years and enjoying her marital bless but this frivolous FIR is causing unnecessary harassment to the petitioner.

3. Vide order of this Court dated 20.12.2022 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, learned counsels for the parties 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 20.12.2022, the Registrar Judicial has recorded the statements of the parties, the same are placed on record which read as under:-

Statement of Neeraj Kumar (petitioner); Age; 31; S/o Lt. Sh. Rattan Lal R/o W.No.12, R. S. Pura, District Jammu on oath today i.e20.12.2022;

"Stated, that I have amicably resolved all disputes and issues with Monika Choudhary (respondent No.2) out of court. Further, I have not committed any offence as alleged in impugned FIR and same is also substantiated with the objections filed by the respondent No.2. I pray before the Hon‟ble Court to quash FIR No. 266/2017 dated 16.11.2017 lodged by Monika Choudhary 3CRM(M) No. 122/2019

(respondent no.2) against me at Police Station, R. S. Pura, Jammu for commission of offence under Section 376 RPC."

Statement of Monika Choudhary (respondent No.2); Age; 28; D/o Surinder Kumar; R/o W.No.13, R. S. Pura, District Jammu on oath today i.e20.12.2022;

"Stated, that I have amicably resolved all disputes and issues with Neeraj Kumar (petitioner) out of court. Further, I am married now and having a child also. So keeping in view my future life, I do not want to pursue FIR No. 266/2017 dated 16.11.2017 lodged by me against the petitioner at Police Station, R. S. Pura, Jammu for commission of offence under section 376 RPC."

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 case of Narender Singh versus State of Punjab, 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 4CRM(M) No. 122/2019

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 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."

5CRM(M) No. 122/2019

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.

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

6CRM(M) No. 122/2019

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, so there would be no chance of conviction of accused in near future in case trial is held and concluded.

7. In view of the above, this petition stands allowed. Consequently, FIR No. 266/2017 dated 16.11.2017 registered with Police Station R.S.Pura District Jammu for the commission of offence punishable under section 376 RPC against the petitioner on the complaint of respondent No.2,alongwith all consequential proceedings pending in the Court of learned Judicial Magistrate 1st Class, R. S. Pura for committal proceeding, in view of compromise arrived at between the parties, is quashed.

8. Disposed of accordingly along with all connected CM(s).

9. Copy of this order be sent to SHO Police Station, R.S.Pura, District Jammu for compliance.

(Mohan Lal) Judge

Jammu:

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