Deep Sharma vs Union Territory Of J&K And Another
2023 Latest Caselaw 1105 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                         ...
                                CRM(M) No.385/2023
                               CrlM No.703/2023

                                        Reserved on: 24.05.2023
                                        Pronounced on: 29.05.2023.

Deep Sharma                                       ....... Petitioner(s)

                         Through: Mr. Rajesh Bhushan, Advocate.


Versus

Union Territory of J&K and another          .........Respondent(s)

                         Through: Mr. P.D.Singh, Dy. AG for R-1
                                  Mr. Sahil Anand, Advocate for R-2

CORAM: HON'BLE MR JUSTICE M A CHOWDHARY, JUDGE

                            JUDGMENT

1. In this petition filed under Section 482 of the Code of Criminal

Procedure, the petitioner seeks quashing of FIR No.0111/2023

registered at Police Station, Akhnoor, Jammu for the commission of

offences punishable under Section 376 IPC on the basis of a complaint

moved by respondent No.2 alleging therein that she has been

repeatedly raped by the petitioner herein on the pretext of a false

promise to marry her.

2. Briefly stated, the facts of the case are that on 10.04.2023

respondent no.2 herein lodged a written complaint at Police Station

Akhnoor alleging therein that she was having love affair with Deep

Sharma, petitioner herein and she has been repeatedly raped by him for

the past two years on the pretext of a false promise to marry; it is

further stated in the impugned FIR that the respondent no.2, after being

reneged of the promise to marry by the petitioner and also having come

to know from someone that Deep Sharma, the petitioner going to

marry someone else, went to the house of petitioner at Mandiwala and

narrated the whole matter to his parents; and she was told by his

mother to leave her son by taking some money.

3. Respondent no.2 filed a written complaint at Police Station

Akhnoor on 10.04.2023 alleging that one Deep Sharma, under the

promise to marry her, had been subjecting her to sexual intercourse for

the last two years and on his refusal to marry her now, the sexual

intercourse is found to be on a false promise which amounts to rape.

On receipt of the written complaint, a case came to be registered vide

FIR No.0111/2023 U/S 376 IPC.

4. It is pleaded in the petition that petitioner and respondent no.2

were in a long love affair; that in view of preoccupation of petitioner

with his job in Indian Army he could not give time to respondent no.2

and because of some misunderstanding, the respondent no.2 lodged the

complaint which culminated into registration of a case vide FIR

No.0111/2023 at Police Station Akhnoor, Jammu, for commission of

offence punishable U/S 376 IPC. It is averred in the petition that the

petitioner and respondent no.2 entered into matrimonial relationship on

24.04.2023 with the blessings of parents of both the parties; that they

have also sworn affidavits in support of the marriage agreement with

regard to their free will and consent and on the same day the marriage

was performed in the Arya Samaj Mandir, Janipur, Jammu as per

Hindu religious rites and ceremonies; that petitioner and respondent

no.2 have also entered into a compromise wherein respondent no.2 has

clearly stated that she does not want to pursue any FIR which was

lodged only because of the misunderstanding which has arisen for the

reason that the petitioner was not able to pick up the calls of the

respondent no.2; and that the petitioner and respondent no.2 are

happily married couple and want to live their life in peace and

harmony and it will be too harsh for the petitioner and respondent no.2

to continue the relationship of marriage, in case the FIR is not quashed

as the respondent no.2 has solemnized the marriage with the petitioner

and she does not want to prosecute the said FIR. It is prayed in the

petition that the impugned FIR be quashed so that the petitioner and

respondent no.2 can consummate their matrimonial life happily.

5. This Court while issuing notice to the respondents on

01.05.2023 stayed the investigation in the case. Pursuant to notices,

respondent no.1 did not file any response, whereas respondent no.2

who is complainant, filed reply, while admitting all the assertions made

in the petition, conceded the submissions made and prayed that the

impugned FIR be quashed as she is no more interested to prosecute her

case.

6. It is stated that the parties i.e. petitioner and respondent No.2

have entered into a compromise, wherein, inter alia, it has been

resolved and agreed that the respondent no. 2 is not interested to

prosecute the petition as parties have solemnized marriage and now

they want to live their life in peace and harmony; and that the

respondent no.2 out of her own free will and volition does not want to

prosecute the case registered vide impugned FIR. A copy of the

compromise deed dated 27.04.2023 executed and attested on

28.04.2023 has also been placed on record. On 15th May, 2023, the

parties were directed to record their statements before the Registrar

Judicial, in compliance whereof, petitioner as well as respondent No.2

recorded their statements before the Registrar Judicial on 19.05.2023.

7. In her statement, respondent-complainant, has stated that she has

arrived at a compromise with the petitioner which was reduced into

writing in shape of a marriage agreement dated 24.04.2023; that

pursuant to the marriage agreement, she solemnized marriage with the

petitioner; and that formal compromise deed dated 27.04.2023 was

also executed between them; that in support of marriage agreement, an

affidavit has also been sworn by them; and that in view of marriage

and settlement of all misunderstandings, she has no objection in case

this court quashes FIR No.111/2023 dated 10.04.2023 registered at

Police Station, Akhnoor, District Jammu for commission of offence

punishable u/s 376 IPC and subsequent proceedings in the same. It has

also been stated by respondent No.2 in her statement that she does not

want to pursue the impugned FIR filed by her against the petitioner.

8. I have heard learned counsel for the parties and perused the

material on record.

9. So far as the facts alleged in petition pertaining to the

compromise arrived at between the parties in terms of compromise

deed dated 27.04.2023, are concerned, the same are not disputed.

However, learned counsel for the official respondent submits that the

offence under Section 376 IPC is non-compoundable. In the backdrop

of this position, the question arises as to whether this Court has power

to quash the proceedings, particularly when offence alleged to have

been committed is non-compoundable in nature. The Supreme Court in

the case of Gian Singh. v. State of Punjab & another, reported in

(2012) 10 SCC 303, while considering this aspect, has observed as

under:

"57. 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 F.I.R may be exercised where the offender and 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 serious impact on society.

Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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 pre-dominatingly civil flavour stand on 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.."

10. Similarly, the Supreme Court in the case titled Narinder Singh

& Ors. Vs. State of Punjab & anr, reported in (2014) 6 SCC 466,

has laid down guidelines for quashing of criminal proceedings. The

guidelines are reproduced as under:

"31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

(II) When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

(III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

(IV)   On     the    other,    those   criminal      cases   having
overwhelmingly       and      pre-dominantly      civil   character,

particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

(V) 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. (VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is 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 later 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.

(VII) 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."

11. From a perusal of the aforesaid observations of the Supreme

Court, it is clear that in the cases or disputes which have predominantly

civil flavour and where the wrong is basically private or personal in

nature and the parties have resolved their entire dispute, the High Court

is well within its jurisdiction to quash the criminal proceedings if it is

known that because of the compromise arrived at between the parties,

there is remote possibility of securing conviction of the accused. In

fact, in such cases, the Supreme Court has clearly observed that it

would amount to extreme injustice if despite settlement having been

arrived at by the parties, the criminal proceedings are allowed to

continue.

12. In the present case, the allegation in the FIR is that the

respondent no.2 and the petitioner were having love affair for the past

two years and wanted to marry each other; that due to some

misunderstandings arisen in view of petitioner not giving sufficient

time to the respondent no.2, she under confusion lodged complaint

against the petitioner which culminated into FIR which is impugned in

this petition; that it is alleged that the confusion which led to filing of

complaint is settled between the petitioner and respondent no.2 and

they are happily married now and as such she does not want to

prosecute the said FIR. The respondent no.2 in her affidavit has

affirmed the statements made in the petition under Section 482 Cr.P.C.

that the parties solemnized marriage on 24.04.2023 with the blessings

of parents of both the parties. In the facts of the case, continuation of

the proceedings would cause immense harm to the respondent no.2.

This Court is aware that offences like rape is a serious offence, but, at

the same time, this Court cannot ignore and overlook that this offence

is private in nature between accused and the complainant.

13. It is admitted that the parties to the dispute, i.e., petitioner and

respondent No.2 have entered into a matrimonial relationship and

executed a compromise deed, whereby the respondent No.2 as

complainant/victim has decided not to pursue prosecution in the

impugned FIR against the petitioner. Therefore, once the rival parties

have arrived at a settlement as regards the basis of the matrimonial

dispute, allowing the prosecutions to continue merely because the

offences alleged against the accused are non-compoundable in nature,

would amount to great injustice to both the parties and, in fact, it will

amount to frittering away the fruits of compromise that has been

arrived at between the parties. The continuance of

criminal proceedings against the petitioner, in these circumstances, will

be nothing but an abuse of process of law and would not serve the ends

of justice.

14. In view of the aforesaid discussion, this petition is allowed.

Accordingly, FIR No.0111/2023 registered at Police Station, Akhnoor,

Jammu for the commission of offence punishable under Section 376

IPC as well as further proceedings taken thereon are quashed.

15. Petition alongwith pending application(s) is disposed of.

(M A Chowdhary) Judge Jammu 29.05.2023 Raj Kumar Whether the order is reportable: Yes