DELHI HIGH COURT
Swarana Kanta Sharma, J.
Maksood Ahmad – Petitioner
versus
State of NCT of Delhi and Anr. – Respondents
W.P. (Crl) 336 of 2023
Decided on 19.1.2024

IMPORTANT POINTS
(1) FIRs registered for commission of serious offences, including offence of rape, should not be quashed on the basis of settlement or compromise arrived at between victim and accused.
(2) Marriage – Religious Conversion – Conversions, many a times, are only for the purpose of facilitating inter-faith marriages – Prospective convert must also be informed about his/her right to reconvert to his/her own original religion and consequences of same.

Headnote:

(A) Indian Penal Code, 1860 – Section 376 – Constitution of India – Articles 226 and 227 read with Section 482 of Criminal Procedure Code, 1973 – Rape – FIRs registered for commission of serious offences, including offence of rape, should not be quashed on the basis of settlement or compromise arrived at between victim and accused – However, it is not an absolute rule that FIR registered for offence under Section 376 of IPC cannot be quashed on the basis of compromise in any case – In cases where victim and accused had been in relationship for a long period of time and FIR was registered owing to some misunderstanding, but if they had later got married to each other and had been living happily with each other, such FIRs can be quashed in larger interest and for ensuring justice – However, parties cannot seek quashing as a matter of right. (Paras 18 and 19)

(B) Criminal Procedure Code, 1973 – Sections 164 and 164-A – Indian Penal Code, 1860 – Section 376 – Statement of victim in rape cases – Statements recorded under Section 164 of Cr.P.C. before Magistrate, of a victim of sexual offence, has to be made voluntarily by person giving such statement – It is crucial that concerned Magistrate must record his satisfaction that person making such a statement is not temporarily or permanently disabled, either physically or mentally – In case Magistrate forms an opinion that victim of sexual assault who is making such statement is either temporarily or permanently disabled, physically or mentally, Magistrate shall take assistance of an interpreter or a special educator in recording statement and such proceedings will be video-graphed – Magistrate recording statement under Section 164 of Cr.P.C. is entrusted with a very crucial duty of writing incident of sexual assault of victim within four walls of chamber of Magistrate, to ensure that security so felt to disclose without fear or pressure real facts, incident or happening will give right direction to a case under Section 376 of IPC – Recording of statement under Section 164 Cr.P.C. in a case of sexual assault is a critical responsibility of a Magistrate as statements so recorded also becomes part of edifice of building of a case – Preliminary examination of victim is to ascertain her competence, intelligence and being under no pressure as well as her capacity to understand a vernacular language – Role of Courts while recording such statements becomes paramount and same must be done with a deep sense of sensitivity towards victim and professionalism towards criminal adjudicatory process. (Paras 29, 30, 31, 32 and 33)

(C) Administration of Justice – Importance of transparency in legal proceedings – An individual is required to approach Court with honesty and disclosure of true facts – Courts rely on information presented before it for the purpose of making informed legal decisions by application of law, and deliberate suppression or misrepresentation of material facts definitely comes in way of dispensation of fair and just decisions – Doctrine that those seeking equity must do equity and must come with clean hands, is not merely a procedural formality but a vital ethical obligation that litigants must fulfill – Duty to approach Court with clean hands extends beyond legal realm; it is a moral obligation that ensures sanctity of justice-seeking process – Principle of clean hands ensures that Court’s time and resources are dedicated to resolving disputes based on a complete and accurate understanding of facts. (Paras 56 to 59)

(D) Marriage – Religious Conversion – Conversions, many a times, are only for the purpose of facilitating inter-faith marriages – Conversion to another religion which is uninformed may not prepare a convert with consequences that they will now not be able to follow their form of religion in case the religion they are converting to, does not permit so. This becomes more critical in case their reverting back to their religion may ensue legal, matrimonial, succession and custody related consequences – Foremost requirement in process of religious conversion for the purpose of marriage revolves around ensuring informed consent and comprehensive understanding on part of individual undergoing conversion – It is crucial that person willingly embraces decision to convert, fully cognizant of multifaceted implications embedded in such a significant life choice – To achieve this, it becomes paramount to furnish and inform the individual with exhaustive information concerning religious doctrines, customs, and practices associated with chosen faith, which includes explanation of tenets, rituals, and societal expectations inherent in religious conversion, to ensure that consent to such conversion is an informed consent, given after fully understanding consequences of such action – Language used should be simple and clear which directly communicates religious and legal implications of conversion – Prospective convert must also be informed about his/her right to reconvert to his/her own original religion and consequences of same. (Paras 77, 81, 82, 85 and 98)

(E) Criminal Procedure Code, 1973 – Indian Penal Code, 1860 – Section 376 – Rape – Defence plea of consensual live-in sexual relationship – Quashing petition – Accused and prosecutrix have compromised the matter and have married each other – Acts and investigation revealed story of love, lies, law, and litigation as it transpired that in year 2012 itself, petitioner herein and prosecutrix, who were already married to different partners, had married each other – Petitioner as per his personal law could marry for a second time but he could not have married prosecutrix/respondent no. 2, who was a Hindu, as her husband was alive and she was not divorced – Proceedings and investigations further reveal that both parties herein did not approach police, religious or judicial authorities with clean hands – Need for conversion arose after registration of FIR as accused could not have married prosecutrix under Special Marriage Act, 1954 without his divorce from his first wife and divorce of prosecutrix from her husband – Prosecutrix, being governed by law of monogamy, whether as a Hindu or after conversion to Islam, could not have married accused without being divorced from her first husband, for which she has no document and rather there is a document to the contrary – There should not be an expectation that as a matter of right, subsequent marriage between prosecutrix and accused is sufficient ground for quashing FIR of every case registered under Section 376 of IPC – Misconduct of prosecutrix is writ large, as she had lied at every stage and misguided police as well as Courts – Quashing petition dismissed. (Paras 67, 68, 70, 73, 111, 112, 115 & 117)

Result: Petition dismissed.