Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Raj) 1037

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Anoop Kumar Dhand, J.
Saurabh Malhotra – Appellant
Versus
State of Rajasthan Through PP & Ors. – Respondent
S.B. Criminal Miscellaneous (Petition) No. 9687/2022
Decided On : 06-01-2023

Advocates Appeared:
Mr. Vinod Kumar Vaishanaw, Advocate, for the Appellant; Mr. Yeshwant Kankhadia, PP, Mr. Amitabh Jatav, Advocate and Mr. Jitesh Kumawat, Advocate, for the Respondent.

The court emphasized that heinous and serious offences like rape cannot be quashed solely based on compromise, but in cases where the possibility of conviction is remote and bleak, and continuation of the criminal case would cause oppression and prejudice to the accused, the High Court may quash the proceedings.

Headnote:
Marriage - Indian Penal Code - Section 376 - Section 90 - The court discussed the sanctity of marriage and the invocation of Section 90 of the Indian Penal Code in the context of sexual consent sought on the promise of marriage. The court referred to various judgments including Gian Singh v. State of Punjab, Narinder Singh & Ors. v. State of Punjab & Anr., and State of M.P. v. Laxmi Narayan & Ors. to highlight the principles guiding the exercise of power under Section 482 of the Code of Criminal Procedure to quash criminal proceedings. The court emphasized that heinous and serious offences like rape cannot be quashed merely on the basis of compromise between the victim and the offender, but in cases where the possibility of conviction is remote and bleak, and continuation of the criminal case would cause oppression and prejudice to the accused, the High Court may quash the proceedings. The court also cited specific cases such as Bitu Yadav v. State (NCT of Delhi) & Anr., Swapnil Digambar Patil v. The State of Maharashtra & Anr., Appellants v. State & Anr., and Jatin Agarwal v. State of Telangana & Anr. to support its decision to quash the FIR in the present case.
Fact of the Case:

The petitioner was accused of seeking sexual relations on the promise of marriage, leading to a FIR under Section 376 IPC. However, the petitioner and the respondent got married after the registration of the FIR, and the prosecutrix affirmed the settlement and marriage in court. The prosecutrix expressed no objection to quashing the FIR.
Finding of the Court:

The court found that the continuation of the proceedings would cause immense harm to the prosecutrix, and while acknowledging that offences like rape cannot be quashed solely based on compromise, the court considered the welfare and future of the prosecutrix in exercising its power under Section 482 Cr.P.C. The court also emphasized that its decision should not be taken as a precedent for quashing offences of rape based on compromise.
Issues: The main issue was whether the court should exercise its power under Section 482 Cr.P.C. to quash the criminal proceedings arising from the FIR under Section 376 IPC, considering the subsequent marriage of the accused and the prosecutrix.
Ratio Decidendi: The court's decision was based on the principles outlined in various judgments, emphasizing that heinous and serious offences like rape cannot be quashed solely based on compromise, but in cases where the possibility of conviction is remote and bleak, and continuation of the criminal case would cause oppression and prejudice to the accused, the High Court may quash the proceedings.
Final Decision: The court quashed the FIR No. 88/2022 registered with Mahila Police Station, Sawai Madhopur for the offence under Section 376 IPC and the proceedings arising therefrom, considering the peculiar facts and circumstances of the case.

ORDER

1. Marriage is considered as sacred union between two individuals - transcending beyond physical, emotional and spiritual bonds. According to the ancient Hindu laws, marriage and its rituals are performed to pursue Dharma (duty), Artha (possessions), and Kama (physical desire). With such sanctity, marriage is more than a ritual and accordingly the present criminal jurisprudence invoke Section 90 of the Indian Penal Code (for short ’IPC’) when the consent of sexual intercourse was sought by the petitioner from the respondent no.2 on the promise of marriage.

2. The respondent no.2, who shall be referred as ’A’ lodged a FIR no. 88/2022 against the petitioner with Mahila Police Thana at Sawai Madhopur for the offence under Section 376 IPC alleging therein that she is 29 years of age and working in News Channel job Bharat 24 and she came in acquaintance with the petitioner in 2020 at Noida and they exchanged their mobile numbers and became friends. On 21.03.2021, the petitioner made a proposal to marry her and developed sexual relations with her and she became pregnant and he gave pills to her to abort the pregnancy. Thereafter they visited Leh Ladhak, Vrindavan, Dehradun, Mussoorie. Thereafter the petitioner refused to marry her.

3. However, the petitioner and the Respondent ’A’ have got married on 17/10/2022 and get their marriage registered before Marriage Registration Officer-V at Ghaziabad (UP).

4. The petitioner has filed instant petition for quashing of FIR on the ground that after registration of FIR, the parties were able to resolve their differences and eventually got married on 17/10/2022 and that they are living happy married life and both of them have submitted a copy of compromise executed between them on 14/11/2022 indicating therein that due to misunderstanding this FIR has been registered and now they have solemnized marriage and living a happy married life and the respondent ’A’ does not want to proceed against the petitioner.

5. Vide order dated 14.11.2022 the petitioner and the respondent ’A’ were directed to appear before the investigating officer for verification of facts mentioned in the compromise. In pursuance of the said directions the prosecutrix ’A’ appeared before the investing officer along with her husband (the petitioner) where her statements were recorded u/s 161 of Code of Criminal Procedure and videography of her statements was also done in a C.D. and she has stated that sexual relation between them were established with her consent and thereafter she has performed marriage with the petitioner but due to some misunderstanding, this FIR was lodged by her against the petitioner and now she does not want any action or proceedings against him. On the basis of such statements of the prosecutrix, the police proposed final report negative and submitted factual report dated 26.11.2022 before the record of this case.

6. The petitioner and the prosecutrix ’A’ appeared in person before this court on 02/01/2023 and they were duly identified by their respective counsels. The prosecutrix ’A’ stated before this court that due to misunderstanding the FIR has been lodged against the petitioner but now they have settled there disputes and they are living happy married life and she has no objection in any manner whatsoever, if the present petition is allowed and the FIR no. 88/2022 registered with Mahila Police Station, Sawai Madhopur is quashed.

7. The Public Prosecutor opposed the prayer made by the petitioner, while the counsel for the respondent no. 2 accepts the factum of compromise and marriage between the parties and he has no objection if the proceedings arising out of impugned FIR are quashed.

8. Heard and considered the submissions.

9. It is well settled that the power under Section 482 Cr.PC is to be distinguished from the powers which lies with the Court to compound the offences compoundable under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has the power to quash the pro