Joginder Singh vs State Of Jammu & Kashmir And Anr

In the instant petition filed under Section 561-A Cr.P.C. read with all enabling provisions including Section 439 CrPC, the petitioner inter alia seeks quashment of FIR No.28/2010, registered at Police Station Thathri, Doda under Section 376 RPC, on the basis of a complaint filed by respondent No.2 against the petitioner in the court of learned CJM, Doda on the following grounds:

i) That a perusal of the allegations made in the complaint/FIR even if are taken at their face value and accepted in their entirety do not even prima facie constitute any offence or make out a case against the petitioner.

ii) That the allegations made in the complaint/FIR are so absurd and inheritably improbable on the basis of which no prudent person can reach a just conclusion that there are sufficient grounds for proceeding against the petitioner.

iii) That the criminal proceedings initiated against the petitioner are manifestly attended with mala fide and maliciously instituted with an ulterior motive for wreaking vengeance on the petitioner to pressurize him to marry to respondent No. 2.

vi) That the petitioner is serving in the Indian Army for the last about 6 years and has an unblemished service career throughout his tenure of service and always received appreciations from his superior officers but the complainant (respondent No.2) including her father have succeeded in falsely implicating the petitioner and the police concerned is out and out to arrest the petitioner despite the fact that he neither committed any offence nor he has any knowledge about the commission of the same.

v) That the continuance of an investigation on the basis of FIR No.28/2010 against the petitioner is sheer abuse of process of law and the Hon'ble High Court in exercise of its inherent jurisdiction can prevent the same, hence this petition.

vi) That there are legal, valid and all justifiable reasons to quash the FIR in the petition and charges leveled against the petitioners are liable to be quashed.

During pendency of this petition, one more petition bearing CRMC No.662/2016 was filed by the petitioner No.1/victim & petitioner No2./husband for quashing of charge sheet arising out of FIR No.28/2010 on the following grounds:

i) That a perusal of the allegations made in the Challan and the entire evidence collected by the investigating Agency, even if are taken at their face value and accepted in their entirety do not, prima facie, constitute any offence or make out a case against the petitioner No.2.

ii) That the petitioner No.2 is an Army personnel and at the time of alleged occurrence was posted at Samba. Thereafter, he was transferred to Gurez, Ladakh, where he remained posted for long time and was unable to contact petitioner No.1. It was the inaccessibility of petitioner No.2 amongst other reasons relating to financial troubles faced by him and his family in making arrangements and service exigencies that there was some delay in solemnization of marriage between the petitioners. Under no circumstances any ill-will can be attributed to petitioner No.2 and his intentions towards keeping his promise to marry by the petitioner No.1, thus, the impugned Challan deserves to be quashed out rightly.

iii) That a bare perusal medical opinion rendered by Dr. Madhu Chib reveals that petitioner No.I was never subjected to any kind of sexual violence by petitioner no.2 and her medical examination immediately after the alleged occurrence on 25/12/2009 also corroborates nothing incriminating against the petitioner No.2. Thus, the presentation of the challan impugned in the petition is result of connivance between the respondent and the family members of petitioner No.1, which deserves to be quashed out rightly.

iv) That it is not understandable as to how the petitioner no.2 who is an innocent person despite the fact that he has not committed any offence is surprisingly charged for alleged offences when there is nothing on record to connect the petitioner even prima-facie to the commission of alleged offences.

v) That the allegations made in the impugned challan against the petitioner no.2 are patently absurd and inheritably improbable on the basis of which no prudent person can reach a just conclusion that there are sufficient grounds for proceeding against him.

vi) That the criminal proceedings initiated against the petitioner No.2 are manifestly attended with mala-fide and maliciously instituted with an ulterior motive to malign his reputation and falsely drag him in the field of litigation.

vii) That the family of petitioner No.1, after coming to know about the love affair between petitioners and discovering the factum of her pregnancy in the month of April, 2010, forced her to go to the concerned police to lodge an FIR against him. It is worthwhile to mention the petitioner No.1 never disclosed to anyone including her parents but on being medically examined she was shown to have in running pregnancy for four months it was in this background of the facts that she was made to go to the police and then Magistrate for initiating action against the petitioner No.2. Despite the fact that she had an intimate love affair with petitioner No.2 and was never agreeing to take any action against him, the respondent concocted a story to falsely implicate petitioner No.2 for the heinous offence of rape and thus, an F1R No. 28/2010 dated 28-04-2010 came to be registered by the respondent i.e., four months later in time after the date of alleged occurrence on 25/12/2009. It is relevant here to mention that the registration of the FIR was result of the indulgence shown by the learned trial court only. Thus, the Challan impugned in the petition deserves to be quashed out-rightly.

viii) That the petitioner no.1 is wife of petitioner no.2 and is living happily with him. The factum of pendency of criminal proceedings against the petitioner no.2, initiated by the family members of the petitioner no. 1 in active connivance with the respondent, are creating unnecessary strain and harassment to the petitioners, adversely affecting their smooth matrimonial life. Thus, the impugned challan has become a source of annoyance for the petitioners for which they seek kind indulgence of the Hon'ble Court to bring them to justice.

ix) That the petitioners are husband and wife and their marriage was result of an intimate love relationship for long period of time. The relationship between petitioner No.1 and 2 was out of consent and free will of petitioner no.1, she being in love with him and the same resulted into a peaceful consensual sexual relationship between them. The marriage of petitioner no.1 with petitioner no.2 further proves that her consent for sexual relations with him was not merely on the basis of thepromise of petitioner no.2 to get married with her, but it was out of her love and passion for him. Thus, in the light of these facts and settled legal position by the Hon'ble Division Bench of High Court of Bombay on consensual sexual relationship neither the ingredients of the offence punishable under Section 376 IPC are made out nor there exists anything incriminating on record connecting petitioner No.2 to the alleged heinous offence in the impugned challan.

Brief facts of the case are that way back in the year 2009 the petitioner no.1 and petitioner no.2 being major out of their own sweet will, developed an intimate love affair. Due to their intimate relationship they came close physically many a times including the particular date of 25th of December, 2009 and grew fond of each other and they used to meet often. Thus, there arises no question of any forceful relationship from either side of the petitioners. Consequently, they solemnized marriage on 17.08.2012 and became parents to a beautiful son baby Avinash Kumar. Family of petitioner no.1, after coming to know about the love affair between the petitioners and discovering the factum of her pregnancy in the month of April, 2010, forced her to go to the concerned police to lodge an FIR against him. It is worthwhile to mention that the petitioner No.1 never disclosed to anyone including her parents but on being medically examined she was shown to have in running pregnancy for four months and it was in this background of the facts that she was made to go to the police and then magistrate for initiating action against the petitioner No.2. Despite the fact that she had an intimate love affair with petitioner No.2 and was never agreeing to take any action against him, the respondent concocted a story to falsely implicate petitioner No.2 for the heinous offence of rape and thus, an FIR No. 28/2010 dated 28.04.2010 came to be registered by the respondent i.e four months later in time after the date of alleged occurrence on 25/12/2009. Notwithstanding the fact that the petitioner No.2 was not guilty of any offence, the statement of petitioner No.1 came to be recorded by the learned trial court and Challan arising out of FIR No.28/2010 dated 28/04/2010 also came to be presented before the competent Court of law on 05/10/2010 against her wishes. Despite the fact that the petitioner No.2 was not found involved in the commission of alleged offence, even then, a charge sheet (Challan No.88/2016) arising out of F.1.R No.28/2010 dated 28-04-2010 came to be presented against him before the competent court of law on 05/10/2010. It is submitted that the ultimate trial of the case would result in vacuum and continuance of criminal proceedings would be having adverse effect on the matrimonial relation of the petitioners with each other. Thus, the petitioners pray that the impugned challan may very kindly be quashed.

Heard learned counsel for the petitioners and perused the case file.

From the perusal of record, it is evident that Joginder Singh-petitioner in CRMC No.113/2010 filed a petition for quashing of FIR No.28 of 2010 u/s 376 RPC registered with police station Thathri on the basis of a complaint made by respondent no.2-prosecutrix. This court on 03.07.2010, directed the police not to arrest him; thereafter matter remained pending and no effective proceeding took place in the case.

It further appears that meanwhile challan was produced before Additional Session Judge, Doda, but this fact was not brought to the knowledge of this court; it further appears that petitioner/accused was charge sheeted on 23.05.2016 and even statement of victim was recorded during trial on 09.12.2011, whereas she has spoken against accused; even statements of father of victim, mother of victim, Doctor and I/O have been recorded. On 28.06.2016 victim filed an application under section 540 Cr.P.C for recalling her and re-examining her. On 08.07.2016 APP was directed to file objections to this application. But without waiting for decision in that application, victim and accused has filed joint petition bearing CRMC No.662/2016 for quashing the challan on the basis of grounds mentioned in the petition.

From the perusal of challan, it is evident that trial is almost complete and petitioners have sought the quashment of whole trial on the basis that petitioner No.2 is an Army personnel and at the time of alleged occurrence was posted at Samba. Thereafter, he was transferred to Gurez, Ladakh, where he remained posted for long time and was unable to contact petitioner No.1; that under no circumstances any ill-will can be attributed to petitioner No.2 and his intentions towards keeping his promise to marry petitioner No.1; that from a bare perusal of medical opinion rendered by Dr. Madhu Chib reveals that petitioner No.I was never subjected to any kind of sexual violence by petitioner no.2 and her medical examination immediately after the alleged occurrence on 25/12/2009 also corroborates nothing incriminating against the petitioner No.2; that petitioner no.2 who is an innocent person despite the fact that he has not committed any offence is surprisingly charged for alleged offence; that the petitioner no.1 is wife of petitioner no.2 and is living happily with him.

All these grounds are not tenable at this stage; because accused has never challenged the order of framing of charge; he allowed the trial to complete and when he found that victim has given statement against him, he has filed these petitions thereby averring that he has solemnized marriage with victim; but fact remains same that victim has already given statement against the accused. So now it is only the trial court, who is competent to complete the trial to its logical conclusion on the touchstones of cardinal principles of law on the subjects.

Counsel for petitioner has relied upon a judgment rendered in case titled Yogesh Handa v State of Punjab and another reported in 2013 (4) RCR (CRIMINAL) 472, wherein High Court has quashed the FIR under section 376 RPC on the basis of compromise. However, Apex court has ruled out quashing of rape charges on account of compromise.

In State of Madhya Pradesh v. Madanlal reported in 2015 (7) SCALE 261, the apex court has held as under:-

"15. Having stated the aforesaid, ordinarily we would have proceeded to record our formal conclusion, but, an extremely pertinent and pregnant one, another aspect in the context of this case warrants to be addressed. As it seems to us the learned Single Judge has been influenced by the compromise that has been entered into between the accused and the parents of the victim as the victim was a minor. The learned trial Judge had rejected the said application on the ground that the offence was not compoundable. In this context, it is profitable to reproduce a passage from Shimbhu and Another v. State of Haryana (2014) 13 SCC 318 wherein, a three-Judge Bench has ruled thus:-

"Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at [pic]between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC."

In case titled Narinder Singh Vs. State of Punjab reported in 2014 (6) SCC 468, it is held as under:-

"14. As to under what circumstances the criminal proceedings in a non- compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines:

"Where the High Court quashes a criminal proceeding having regard to the facts that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavor having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard- and-fast category can be prescribed."

Further, as already held, case is at mid trial stage and some witnesses are yet to be examined, so as held in Narinder Singh's case (supra), court should not quash the criminal proceedings at this stage. Relevant para of the aforesaid judgment reads as under:-

"29.7...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 ncan show benevolence in exercising its powers favorably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or Safter 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..."

In view of above discussion, these petitions are dismissed. File of trial court be sent back immediately for concluding the trial at the earliest.

This judgment is pronounced by me in terms of Rule 138(3) of The Jammu & Kashmir High Court Rules, 1999.