Vinod Singh Saini And Others vs U. T. Of J&K And Another
2023 Latest Caselaw 295 j&K

                                                                                 65


     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                            CRM (M) No. 783/2021


Vinod Singh Saini and others                     .....Appellant(s)/Petitioner(s)

q
                     Through: Mr. Manpreet Singh Saini, Advocate
                vs
U. T. of J&K and another                                   ..... Respondent(s)
                     Through: Mr. Pawan Dev Singh, Dy.AG for No. 1
                              None for No. 2




Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                  ORDER

1. The petitioners have challenged the challan emanating from FIR bearing

No. 29/2018 for offences under Sections 366, 376, 342, 506 and 34 RPC

registered with Police Station, Arnia, Jammu pending before the Fast

Track Court, Jammu.

2. As per the prosecution case, on 09.05.2018, petitioner No. 4 had entered

into a wedlock with respondent No. 2, the complainant. However,

petitioner No. 1was compelling petitioner No. 4 (hereinafter to be referred

as the prosecutrix) to enter into wedlock with him and in this connection,

petitioner No. 2 who happens to be the brother of petitioner No. 1 used to

approach the prosecutrix time and again. The said petitioner told the

prosecutrix to proceed to Mumbai to meet petitioner No. 1 or else he

would finish off his life. Accordingly, on 12.05.2018, the prosecutrix

while she had gone to market along with her husband in Arnia,

accused/petitioner Nos. 2 and 3 made the prosecutrix to board a

motorcycle forcibly and she was taken to Jammu Airport. Thereafter, the

prosecutrix was made to board the aeroplane and was taken to Mumbai to

petitioner No. 1-Vinod Singh Saini. At Mumbai, petitioner No. 1 took the

prosecutrix to a guest house and committed rape upon her in a room. She

was locked inside the room for the night and on the second day, the

prosecutrix was sent back to Jammu in an aeroplane. When she reached

Jammu, she met mother of the petitioner No. 1 who took her to Police

Station, Women Cell, Jammu. Thus, according to the prosecution,

offences under Sections 366, 376, 342, 506 and 34 stand established

against petitioners No. 1 to 3.

3. During the pendency of the challan, it seems that the prosecutrix and

accused/petitioner No. 1 have entered into a compromise whereby the

prosecutrix has agreed to withdraw the criminal prosecution against the

accused i.e. petitioners No. 1 to 3.

4. It has been contended in the petition that parents of the prosecutrix

forcibly and against her consent and wish solemnized her marriage with

respondent No. 2 while she was interested in entering into wedlock with

petitioner No. 1. It has been submitted that the prosecutrix on 16.05.2018

out of her own will and volition left her matrimonial house as she did not

live with respondent No. 2. It has further been stated that the prosecutrix

went to meet some of her friends and when she came back, she was

pressurized by respondent No. 2 to make a false statement regarding rape

and kidnapping against petitioner Nos. 1 to 3. It has been submitted that

the prosecutrix dissolved her marriage with respondent No. 2 and

thereafter, she has entered into a wedlock with petitioner No. 1 and out of

the said wedlock, a girl child is stated to have been born on 30.01.2021.

5. In the deed of compromise also, the aforesaid assertions have been

reiterated and in support of the deed of compromise, the petitioners have

made their statements before the Registrar Judicial of this Court.

6. On the basis of the aforesaid facts, the petitioners have sought quashment

of the impugned challan on the ground that continuance of proceedings

against the accused in the facts and circumstances of the case would be an

abuse of process of law.

7. I have heard learned counsel for the parties and perused the record.

8. So far as facts relating to the compromise arrived at between the

accused/petitioners 1 to 3 and the prosecutrix/petitioner No. 4 are

concerned, the same are not in dispute. In the backdrop of these facts,

question arises as to whether this Court has power to quash the

proceedings, particularly when one of the offences alleged to have been

committed by the petitioners 1 to 3, is a heinous offence of rape

punishable under Section 376 RPC. Before answering this question, legal

position in this regard needs to be noticed.

9. In Gian Singh v State of Punjab, (2012) 10 SCC 303, while determining

the issue as to whether High Court in exercise of its powers under Section

482 Cr.P.C. can quash criminal proceedings against an offender who has

settled his dispute with the victim of the crime even though the crime is

not compoundable under Section 320 Cr.P.C. observed as under:

"57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different

from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.

61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. : (i) to secure the ends of justice, or

(ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

10. In Ananda D. V. v State (Criminal Appeal No. 394-395 of 2021, dated

of decision 12.04.2021), the Supreme Court while hearing an appeal

against a judgment passed by the High Court of Delhi, rejecting a

quashing petition in respect of an FIR for an offence of rape, observed as

under:

"Considering the nature of allegations in the FIR and the realization of the fact that due to miscommunication FIR came to be registered at the relevant point of time which issues/misunderstanding have now been fully resolved and the parties are happily married since 11.10.2014, the basis of FIR does not survive. Rather registering such FIR was an ill-advised move on the part of the private respondent, is the stand now taken before us. It is seen that the appellant and private respondent are literate and well-informed persons and have jointly opted for quashing of the stated FIR. Taking overall view of the matter, therefore, in the interest of justice, we accede to the joint request of quashing of FIR in the peculiar facts of the present case.

Hence, these appeals must succeed. The impugned judgment and order is set aside. Instead, the Writ Petition filed by the appellant for quashing is allowed, as a result of which, all steps taken on the basis of impugned FIR be treated as effaced from the record in law."

11. A Single Bench of the Delhi High Court in Ashish v State (2021) 1 HCC

(Del)163, while considering a petition for quashing of FIR under Sections

376 and 506 IPC on the ground that the parties had entered into a

compromise and had entered into a wedlock observed as under:

"7. In a somewhat similar circumstances, a Bench of Punjab and Haryana High Court in Pankaj v. UT of Chandigarh [Pankaj v. UT of Chandigarh 2020 SCC OnLine P&H 4007] , while quashing the proceedings for the offences under Section 376IPC, has observed as under:

"5. In normal circumstances, the court would not entertain a matter when the non-compoundable offences are heinous in nature and against the public. In the instant case, the offence, complained of is under Section 376IPC, which is an offence of grave nature. In the eyes of law, the offence of rape is serious and non-compoundable and the courts should not in ordinary circumstances interfere and quash the FIR that has been registered. However, there are always exceptions to the normal rules and certain categories of cases, which deserve consideration specially when it is a case of love affair between teenagers and due to fear of the society and pressure from the community one party alleges rape, cases where the accused and the victim are well known to each other and allegation of rape is levelled only because the accused refused to marry, as well as the age, educational maturity and

the mental capacity, consequences of the same ought to be kept in mind when inclined to interfere."

8. Although, as per the directions of the Supreme Court in Parbatbhai Aahir v. State of Gujarat [ParbatbhaiAahir v. State of Gujarat (2017) 9 SCC 641 : AIR 2017 SC 4843] , the FIR should not be quashed in case of rape as it is a heinous offence, but when complainant prosecutrix herself takes the initiative and states that she made the complaint due to some misunderstanding and now wants to give quietus to the misunderstanding which arose between her and the petitioner, in my considered opinion, in such cases, there will be no purpose in continuing with the trial. Ultimately, if such direction is issued, the result will be of acquittal in favour of the accused, but substantial public time shall be wasted. A similar view was taken by this Court in Danish Ali v. State [Danish Ali v. State2019 SCC OnLine Del 11712] .

9. Taking into account the aforesaid facts and the fact that the petitioner and prosecutrix have already married on 25-9-2020, therefore, this Court is inclined to quash the present FIR as no useful purpose would be served in prosecuting petitioner any further."

12. Again Delhi High Court in the case of Vikas Kumar vs State 2021 SCC

Online Delhi, 2749, while dealing with a quashing petition relating to an

FIR for offences under Sections 328, 376 and 506 IPC and after discussing

the judgment of the Supreme Court in Gian Singh (supra) observed as

under:

"8. A perusal of the above mentioned judgments show that wherein the allegation of rape has been made, it cannot be quashed only because the prosecutrix and the accused have entered into a compromise and the victim's family and the offender have settled the dispute because these offences are not private in nature and has a serious impact on the society.

9. In the present case, the allegation in the FIR is that the prosecutrix and the accused were working in the same place and have become friends. They fell in love and were living together for two years. The accused went to his native place and the FIR was lodged alleging rape. The prosecutrix has married the accused with whom she was living for two years. The prosecutrix in her affidavit has affirmed the statements made in the petition under Section 482 Cr.P.C. that the parties got married on 01.10.2020 according to Hindu Rites and Ceremonies. Their families have accepted the marriage and they have a child from the marriage. In the facts of the case, continuation of the proceedings would cause immense harm to the prosecutrix and the small child. This Court is aware that offences like rape cannot be quashed by exercising jurisdiction under Section 482 Cr.P.C. if a compromise has been reached, but, at the same time,

this Court cannot ignore and overlook the welfare of the small child and the future of the prosecutrix.

10. Similar views have been taken by the High Court of Kerala in Ashiq N.A. v. State of Kerala, 2019 SCC OnLine Ker 1731 and Freddy @ Antony Francis v. State of Kerala, [Crl.M.C. No. 723/2017] decided on 02.02.2017 and by the High Court of Uttarakhand in Akash Gupta v. State of Uttarakhand, [Criminal Misc. Application No. 502/2018) decided on 27.10.2018.

11. Mr. Raja Ram Sharma, learned counsel appearing for the petitioner has placed reliance on an order dated 07.09.2020 passed by this Court in Bitu Yadav @ Vikas Yadav v. State(NCT of Delhi), [CRL.M.C.1761/2020], wherein this Court has quashed the FIR where the prosecutrix and the accused were married. Paras 17, 18 and 19 of the said order, read as under:

"17. In view of the submissions made by the respondent No. 2 before this Court, the respondent No. 2 is liable to be prosecuted. However, keeping in view the fact that the petitioner and respondent No. 2 are married and living happy married life, I hereby refrain from taking any legal action against the respondent No. 2. A similar view was taken by this court in the case of Danish Ali v. State in Crl.M.C.1727/2019.

18. Taking into account the aforesaid facts and the fact that the petitioner and respondent No. 2 are in love affair since 2013 and they are married, this Court is inclined to quash FIR as no useful purpose would be served in prosecuting petitioner any further.

19. For the reasons afore-recorded, FIR No. 384/2020 dated 31.07.2020, for the offence punishable under Sections 376/506 IPC, registered at PS-Dwarka North, Delhi and consequent proceedings emanating therefrom are quashed."

(emphasis added)

12. The instant FIR is being quashed only keeping in view the facts and circumstances of this case and this order cannot be taken as a precedent on the power of High Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash an offence of rape on the ground that the victim and the accused have entered into a compromise."

13. A Single Bench of the High Court of Andhra Pradesh in Thedlapu

Manikanta v State of A. P, 2023 SCC Online AP 102 quashed a case

involving offence of rape on the ground that the parties were now married.

While doing so, the Court observed as under:

"The Hon'ble Supreme Court in Uday v. State of Karnataka (2003) 4 SCC 46, Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608, Sonu v. State of Uttar Pradesh 2021 SCC OnLine SC 181, Hitesh Verma v. State of Uttarakhand (2020) 10 SCC 710, Kapil Gupta v. State of NCT Delhi, in Criminal Appeal

No. 1217 of 2022 @ SLP (CRL.) No. 5806 of 2022 had held that even serious offences such as offences under Section 376 of I.P.C can be quashed on the basis of the compromise between the parties where the parties are bound by marriage or are close family members. The Hon'ble Supreme Court had taken a view that continuation of such cases between family members and between a wife and husband would not ensure to anybody's benefit and would only result in further straining of ties within the family."

14. Again Delhi High Court in Brijesh Singh v State(NCT of Delhi), 2022

SCC Online Delhi 4551, while allowing quashing of an FIR for offence

376 IPC observed as under:

"7. The parties have been blessed with two children who are 07 years and 05 years respectively. The prosecutrix has not stated anything against the present accused/petitioner either before the police or before the Magistrate. Though, ordinarily such FIRs should not be quashed, however, It was observed by the Hon'ble Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, that it is encouraged to quash the FIR in circumstances wherein a compromise has been achieved....

.

.

.

10. In the exceptional circumstances as such where the parties are living together since long and have now been blessed with two children who are minor and whose future depends on the outcome of the present FIR, this Court deems it appropriate to quash the present proceedings."

15. In Kapil Gupta vs State of NCT of Delhi and another, (Criminal

Appeal No. 1217 of 2022 decided on 10.08.2022), the Supreme Court

while considering an appeal against an order of High Court of Delhi

rejecting a quashing petition for proceedings under Section 376 IPC held

as follows:

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 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 charge-sheet 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 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.....

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 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."

16. A contrary view has been taken by the Delhi High Court in the case of

Swantantra Kumar Jaysawal vs State, 2022 SCC Online Del 30 in

which the Court after relying upon the settled position enumerated in the

case, titled Gian Singh (supra) held that the settlement between the

complainant and the accused and their subsequent marriage does not

waive off the offence of rape.

17. From the foregoing analysis of law on the subject, it is clear that in

heinous and serious offences like murder, rape or attempt to murder, the

High Court should not normally exercise its power of quashing the

proceedings, more particularly when the compromise between the parties

has taken place after the conviction of the accused. Proceedings should not

be quashed even in a case where it appears to the court that the accused

has entered into wedlock with the prosecutrix just to avoid his prosecution

and conviction. However, situation may be different where because of the

opposition of the family members of the boy or the girl to their

relationship, becomes a cause of registration of an FIR and initiation of

criminal proceedings. Factors like solemnization of marriage between the

parties without there being any compromise between them and consequent

giving birth to a children as a result of wedlock would also weigh in

favour of permitting quashing of criminal proceedings in such cases. This

is especially true where it appears that the FIR has been filed either in the

context of promise to marry or under pressure from the family where the

family disapproves the relationship between the parties. The Court has

also to consider the material collected by the Investigating Agency as also

the allegations made in the FIR, to prima facie come to a conclusion as to

whether it is a case of kidnapping and rape or it is a case of elopement and

consensual sex between the parties.

18. That takes us to the facts that have emerged from the record in the instant

case. It appears that the prosecutrix never wanted to marry respondent No.

2 and she was in deep love with petitioner No. 1. Even in her statement

recorded under Section 164 Cr.P.C, she has stated that she boarded the

aeroplane at Jammu Airport and reached Mumbai to meet petitioner No. 1

though she has also stated that she was kidnapped by other accused while

she was in Arnia Bazaar along with her husband. The fact that proseuctrix

travelled all the way from Jammu to Mumbai and stayed with petitioner

No. 1 without there being a whisper in her statement that she had resisted

or tried to escape during her long journey to Mumbai, prima facie goes on

to show that she had left the company of her husband out of her own will

and volition. Not only that, after coming back to Jammu, she met mother

of petitioner No. 1, which is clear from her statement and she did not go to

her husband. All these factors go on to show that it was not a case of

kidnapping and rape but a case of elopement and consensual sex between

petitioner No. 1 and the prosecutrix.

19. Apart from the above, during the pendency of the prosecution, petitioner

No. 1 (main accused) and the prosecutrix have entered into a wedlock, out

of which, a baby girl is born. They are staying together as husband and

wife and this has prompted them to enter into a compromise so that

petitioner No. 1 is saved from the agony of criminal prosecution as they

intend to live a happy married life in company of each other.

20. In the peculiar facts and circumstances of the case as indicated

hereinabove, in case the prosecution against petitioner No. 1 and other

accused is allowed to continue, in-spite of the compromise having been

arrived at between the accused and the prosecutrix, it will amount to grave

injustice not only to the accused but also to the baby girl and the

prosecutrix. The continuance of criminal proceedings against petitioner

No. 1 is going to adversely affect the marital life of the prosecutrix and

deprive the innocent baby girl of her paternal love. Even otherwise there

are remote chances of earning a conviction of the accused out of the

impugned prosecution because the prosecutrix in all probability would

resile from the prosecution case in order to save her husband i.e petitioner

No. 1. The continuance of criminal proceedings in these circumstances

would be a futile exercise.

21. For the foregoing reasons, this is fit case where this Court should exercise

its jurisdiction under Section 482 of Cr.P.C. to bring to an end the criminal

prosecution initiated against petitioners No. 1 to 3, so as to secure the ends

of justice.

22. Accordingly, the petition is allowed and the challan emanating from FIR

bearing No. 29/2018 for offences under Sections 366, 376, 342, 506 and

34 RPC registered with Police Station, Arnia, Jammu as well as

proceedings initiated thereon pending before the Fast Track Court, Jammu

are quashed.

(SANJAY DHAR) JUDGE

Jammu 20.02.2023 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No