The power to quash an FIR should be exercised sparingly and with circumspection, especially when the investigation is pending and charge-sheet is yet to be filed. It should be done only in the rarest of rare cases, and a prima facie case must exist against the accused.

JUDGMENT

Swarana Kanta Sharma, J. -

Crl. M.A. 15261/2022 (exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

W.P. CRL. 1762/2022 & CRL. M.A. 15262/2022

3. The present petition has been filed by the petitioner seeking quashing of FIR No. 378/2022 (Impugned FIR) registered under Sections 376/377/323/34 of the Indian Penal Code, 1860 (IPC), at P.S. Begumpur, on merits.

4. The Impugned FIR was registered on a complaint made by respondent no. 2 wherein it is alleged that petitioner no. 1 (husband of respondent no. 2) was addicted to drugs and on a specific day, petitioner no. 1 came with his friends and asked respondent no. 2 to make physical relations with his friends. Thereafter, petitioner no. 1 left the house, around 3 years ago and visited home sometimes. It is also alleged in the FIR that in the absence of petitioner no.1, petitioner no. 4 forcefully established physical relations and even had unnatural sexual intercourse with her. When respondent no. 2 resisted petitioner no. 4, she was badly beaten and threatened. It is also stated that when respondent no. 2 informed her mother-in-law about the aforementioned incidents, the mother-in-law, along with her brother-in-law, also threatened respondent no. 2 with dire consequences. Thus, the FIR was registered on the basis of complaint filed by the complainant alleging offence of rape under Section 376 IPC, unnatural sexual intercourse under Section 377 IPC and hurt under Section 323 IPC against the accused persons where specific allegations were made against each accused.

5. Learned counsel for the petitioner submits that charge-sheet has not been filed in the above-noted FIR. It is submitted that the present case pertains to a matrimonial dispute with regard to the amount of maintenance to be paid by petitioner no.1 to respondent no. 2 and the same has been given the colour of a criminal offence to exert pressure on the petitioners. It is further submitted that the allegations levelled against the father-in-law and husband of the respondent no. 2 are not tenable since petitioner no. 1has been residing separately for the last 8 years and has not been in a marital relationship with respondent no. 2 for the last 15 years. It is also submitted that the sister of respondent no. 2 has been harassing petitioner no. 1.

6. It is argued on behalf of the petitioners that the allegation of wrongful confinement is untrue as the CCTV footage is contradictory to the allegations levelled by respondent no. 2 in the FIR and that in the said dispute, except petitioner no.1, all other petitioners are on bail. The learned counsel for the petitioners also brought to the notice of the court that the notice for joining investigation was served at the wrong address i.e., at the residence of the complainant and not at the address where petitioner no. 1 was residing. In order to buttress the claims, the learned counsel for the petitioners has relied on the following judgments:

a) State of Haryana vs. Bhajan Lal & Ors. [(1992) SUPP (1) SCC 335]

b) Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors. [(1998) 5 SCC 749]

c) G. Sagar Suri & Anr. Vs. State of U.P. [(2000) 2 SCC 636]

d) Indian Oil Corporation [(2006) 6 SCC 736]

Through the above-mentioned judgments, the learned counsel for the petitioner contends that the power of the High Courts under Article 226 and Section 438 Cr.P.C. can be used to quash an FIR whenever a High Court is of the view that the allegations levelled by the complainant are without merit and there is no possibility of the alleged offence having been committed, it should not wait for the Magistrate to discharge the petitioner in order to prevent the criminal justice system from being used as a tool for arm twisting.

7. Learned APP for the State on the other hand vehemently opposes the submissions made by learned counsel for the petitioner. It is submitted that petitioner no.1 is an absconder against whom non-bailable warrants have been issued and tw