Nirmal Kumar vs State Of Uttarakhand And Others
2021 Latest Caselaw 1271 UK

      HIGH COURT OF UTTARAKHAND AT NAINITAL

               Criminal Writ Petition No. 559 of 2021

Nirmal Kumar                                             ...... Petitioner

                                   Vs.

State of Uttarakhand and others                        ..... Respondents


Mr. Mohd. Alauddin, Advocate for the petitioner.
Mr. S.S. Adhikari, Deputy Advocate General with Mr. Balwinder Singh, Brief
Holder for the State.
Mr. Mohd. Umar, Advocate for the respondent no.3.



                              JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The petitioner seeks quashing of the FIR No.93 of 2021, under Sections 323, 376, 506 IPC, Police Station Ranipur, District Haridwar on the basis of amicable settlement between the parties.

2. FIR in the instant case was lodged by the respondent no.3, the victim. According to it, the victim and the petitioner are cousin (victim is daughter of petitioner's mother's sister). Petitioner is married; father of the victim died long back. The petitioner used to visit the victim's house as they were relatives. The victim's mother always welcomed the petitioner in his house. On one occasion, in the absence of the mother of the victim, the petitioner established physical relation with victim and threatened her that, in case, she reveals it to anybody, he would defame her and kill her. Out of fear, the victim did not reveal it to anyone. Taking advantage of the situation, the petitioner continued establishing physical relations with the victim against her will; the petitioner also taken obscene nude photographs of the victim, he also made obscene videos. Subsequently, the victim revealed it to her mother, she could not bear it and died out of shock. According to FIR, the petitioner is blackmailing and continuously establishing physical relationship with her. The petitioner also took the victim once in a

hotel, there also he established physical relations with the victim and made videos. There are other averments in the FIR as well.

3. Learned counsel for the petitioner would submit that the petitioner and the victim were in love; the petitioner had promised to take divorce from his wife and thereafter to marry the victim; the victim had already lost her father and there is none in the family to look after her.

4. It is not a case that parties were in love and promised to marry each other. And one of the parties, subsequently declined to marry.

5. It is a writ petition under Article 226 of the Constitution of India. The Court cannot go beyond what is stated in the FIR. Any examination of the material is generally avoided at this stage. The contents of FIR are to be seen. FIR categorically records that the petitioner raped the victim. The petitioner is cousin of the victim.

6. During the course of hearing today, the Court posed a question to the learned counsel for the petitioner, as to whether, the law which governs both the parties, permits marriage between petitioner and the victim. To it, learned counsel for the petitioner would submit that the law does not permit marriage between both of them. As stated, FIR narrates a story of rape, blackmailing, making of obscene videos and taking obscene photographs.

7. It is true that even in non-compoundable cases, the Court may quash the proceedings based on an amicable settlement between the parties, but there is a limit to it also; in various case laws, the principles have been laid down, which may guide the Court in such matters. In the case of State of Madhya Pradesh Vs. Laxmi Narayan and others, (2019)5 SCC 688, the Hon'ble Supreme Court, in para 15, summarized the law and in para 15.2 observed, "such power is not to be exercised in those prosecutions which involved 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".

8. The instant case is a very heinous offence. Petitioner and the victim are cousins and according to learned counsel for the petitioner also, the law does not permit their marriage. The law cannot permit compounding of such offences even in writ petition under Article 226 of the Constitution of India. Therefore, this Court finds no reason to quash the proceedings on the basis of amicable settlement between the parties and accordingly, the petition deserves to be dismissed.

9. The writ petition is dismissed.

(Ravindra Maithani, J.) 01.04.2021 Sanjay