Full Text
HIGH COURT OF DELHI
Date of order: 2nd December, 2024
10406/2023, CRL.M.A. 13643/2023 CAPT. RETD JAGADISH RATH .....Petitioner
Through: Mr. V.K Singh, Mrs. Prachi Singh, Mr. Sourav Kumar and Ms. Yakshi Rawal, Advocates
Through: Mr. Yudhvir Singh Chauhan, APP for the State.
Mr. Anil Kumar Yadav and Mr. Afsar Bano, Advocates for R-2
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter as the “Code”) [now under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023] has been filed on behalf of the petitioner seeking quashing of the FIR bearing no. 092/2021, dated 20th February, 2021, registered against the petitioner at Police Station – Dwarka North, Delhi under Sections 376/377 of the Indian Penal Code, 1860 (hereinafter as the “IPC”).
2. The brief facts of the case which led to the filing of the instant petition are as follows: a. The petitioner herein is a retired Captain from Indian Navy and is currently working as a Vice President of Electronic Lab (I) Private Limited. b. The petitioner got separated from his wife in the year 2005 and has one son born out of their wedlock. The respondent no.2/prosecutrix herein is a well-educated woman with a post-graduate degree in law and has been divorced twice. c. In August, 2014, a party for singles was organised in the name of Civil Services Officers Mess, where the petitioner and the prosecutrix met each other and got acquainted. Over a course of time, a friendship developed between the two and they started meeting each other frequently. d. However, on 13th December, 2017, the prosecutrix got registered an FIR bearing no. 579/2017 against the petitioner at Police Station – Vasant Kunj (North) under Sections 376/506 of the IPC. e. Subsequently, a petition bearing CRL. M.C. 1588/2020 was filed by the petitioner seeking quashing of the FIR bearing no. 579/2017 on the ground of settlement. The Co-ordinate Bench of this Court vide order dated 24th September, 2020, quashed the said FIR on the ground of settlement/compromise between the parties. f. Thereafter, the relationship between the petitioner and prosecutrix rekindled and they again started to meet each other frequently. Shortly after that, the prosecutrix registered the impugned FIR against the petitioner for committing the offence of rape on the pretext of false promise of marriage. g. A complaint under Section 156(3) of the Code alongwith Section 200 of the Code was filed by the prosecutrix and a case regarding the same is pending before the learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi. h. The petitioner filed an application seeking anticipatory bail before the learned ASJ-04, South West District, Dwaraka Courts, Delhi and vide order 27th February, 2021, the petitioner was granted the relief of anticipatory bail. i. The police has also filed a chargesheet under Section 173 of the Code and the charges have been framed against the petitioner vide order dated 9th February, 2023 by the Court concerned. j. Aggrieved by the same, the petitioner filed the instant petition seeking quashing of the impugned FIR.
3. Learned counsel appearing on behalf of the petitioner submitted that the instant FIR was lodged based on false and frivolous allegations made by the prosecutrix as the petitioner and prosecutrix were involved in consensual intercourse for a period of more than six years.
4. It is submitted that the prosecutrix falsely alleged that the petitioner has committed rape under Section 376 of the IPC, however, the criteria laid under the Section 375 of the IPC is not satisfied and the same is a misuse of the process of law by the prosecutrix.
5. It is submitted that the prosecutrix has apprised the petitioner of her second divorce and time and again told him that their relationship is not serious and hence, no promise of marriage was given by the petitioner.
6. It is submitted that the petitioner and prosecutrix had a relationship established for satisfying their sexual desires and no promise of marriage was made by the petitioner to the prosecutrix.
7. It is submitted that the petitioner and prosecutrix had entered into sexual relationship with each other‟s consent earlier as well, only with an intent to satisfy each other‟s needs. However, the prosecutrix, with mala fide intentions, registered the FIR bearing no. 579/2017 against him when the petitioner wanted to end the relationship with her.
8. It is submitted that the prosecutrix clearly had an intent of extorting money from the petitioner by filing the FIR bearing no. 579/2017, however, after several rounds of negotiation, the matter was settled between the parties and the said FIR was quashed by the Co-ordinate Bench of this Court vide order dated 24th September, 2020. However, after the order was passed by this Court, the prosecutrix constantly contacted the petitioner and again started their relationship.
9. It is submitted that the prosecutrix filed the impugned FIR only with the intent to torture the petitioner and registered a case against him based on false allegations. Moreover, prima facie, this case indicates that the case is unfounded.
10. In view of the foregoing submissions, it is prayed that the instant petition may be allowed and the impugned FIR may be quashed.
11. Per Contra, learned APP for the State vehemently opposed the instant petition submitting to the effect that the charges levelled against the petitioner are grievous in nature and hence, the impugned FIR cannot be quashed.
12. Thereafter, the learned counsel for the respondent no.2/prosecutrix submitted that the charges levelled against the petitioner are very serious in nature and no concession from this Court must be given to the petitioner.
13. It is submitted that on the pretext of marriage, the prosecutrix entered into a sexual relationship with the petitioner, however the petitioner expressed that he has no intent to marriage, thereby compromising the veracity of the prosecutrix‟s consent.
14. It is submitted that the petitioner maliciously gained the trust of the petitioner by giving her false promises of marriage. Moreover, after the settlement was arrived at between the parties earlier, the petitioner was the first one to contact the prosecutrix and by giving false promise of marriage, the petitioner persuaded the prosecutrix and they started their relationship again.
15. It is submitted that the petitioner has obtained obscene photographs of prosecutrix to threaten her to establish physical relationship with her. Therefore, since the instant matter contains serious allegations against the petitioner, the instant FIR may not be quashed.
16. Heard learned counsel for the parties and perused the record.
17. From the foregoing submissions, the limited question for adjudication before this Court is whether this Court can exercise inherent powers under Section 482 of the Code (Section 528 of the BNSS) for quashing of the impugned FIR in view of the peculiar facts and circumstances of the case.
18. Before adverting to the merits of the instant case, it is pertinent for this Court to firstly delve into the scope of exercise of inherent powers under Section 482 of the Code (Section 528 of the BNSS) in quashing of an FIR.
19. At this juncture, it is pertinent to understand the scope of interference of this Court under Section 482 of the Code i.e., Section 528 of the BNSS, wherein, this Court is bestowed with inherent jurisdiction to exercise its powers to either “prevent any abuse of process of law” or “secure the ends of justice”. However, the said terminologies are devoid of any specific definition due to its wide ambit and therefore, the determination as to whether the case falls within the scope of the aforesaid terms lies with the Court and must be examined based on the established principles of law. Moreover, under this provision, the Court must exercise its powers sparingly, cautiously and in exigent cases only.
20. Pertinently, with respect to the quashing of an FIR, the Courts may quash the FIR or subsequent proceedings emanating therefrom by exercising Section 482 of the Code for securing the ends of justice and avoid abuse of process of law. However, due to the wide ambit of powers vested under Section 482 of the Code, it is apposite to note the parameters which are considered for quashing of the FIR or consequent proceedings arising therefrom. The said parameters have been laid down by the Hon‟ble Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, wherein, the Hon‟ble Supreme Court observed as follows:
without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
21. It is pertinent to note that the aforesaid parameters laid down by the Hon‟ble Supreme Court are not exhaustive in nature, however, the relevancy of the same is encapsulated in most of the situations.
22. Therefore, keeping the aforesaid parameters in mind, and adverting to the merits of the case, it is the contention of the prosecutrix that the offence under Section 376 of the IPC is made out as the consent for the sexual act was given on the pretext of promise of marriage. However, the petitioner contended that the ingredients laid down under Section 375 and 90 of the IPC are not satisfied and hence, no offence of rape, as alleged by the prosecutrix, was committed.
23. Therefore, in light of the same, it is pertinent to peruse Section 375 of the IPC, which is as follows: “Section 375 – Rape: A man is said to commit “rape” if he— a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under eighteen years of age.
7. When she is unable to communicate consent. Explanations
1. For the purposes of this section, “vagina” shall also include labia majora.
2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act; Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exceptions
1. A medical procedure or intervention shall not constitute rape.
2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
24. Upon bare perusal of the aforesaid provision, it is evident that the primary ingredient for the satisfaction and application of the said provision is “consent”. In other words, the commission of any sexual act in the absence of consent amounts to the offence of rape. Moreover, the framework of the IPC did not deal with what amounts to “consent”, however, what does not amount to “consent” has been stated in Section 90 of the IPC. The relevant provision is as follows:
25. At this stage, it is pertinent to look into the contention of the petitioner, wherein, it has been argued that both the parties were in consensual relationship for more than six years. However, it is the contention of the prosecutrix that the relationship was based on the promise of marriage given by the petitioner and hence, she entered into sexual relationship with the petitioner.
26. „Consent‟ as a concept is very subjective and sensitive, especially in the cases of sexual offences. However, the interpretation of consent in prolonged relationships and otherwise are different due to the special relationship between the parties in the former case as it is difficult to identify at what point the consent was not given by the victim.
27. Therefore, in order to examine whether there exists a consensual relationship between both the parties i.e., the petitioner and the prosecutrix, it is imperative to look into two factors which will determine the same – firstly, whether the relationship was based on the promise of marriage given by the petitioner and secondly, whether the parties were involved in a relationship for a prolonged period of time.
28. Coming to the first issue, it is a settled principle of law that if the relationship is founded solely on the pretext of marriage, due which the victim gives her consent for sexual intercourse, then the same would amount to the offence of rape if such promise is not adhered by the perpetrator. However, if no such promise of marriage is given then consent given by the victim cannot be construed as her dissent. This distinguishing factor in the promise of marriage has been laid by the Hon‟ble Supreme Court in the case of Mahesh Damu Khare vs The State Of Maharashtra, 2024 INSC 897. The relevant paragraphs of the same are as follows –
29. However, it is pertinent to understand that the breach of promise of marriage is not a sole indication for the sexual act to be termed as rape. Rape and consensual sex are two distinguished concepts and the same has been dealt in detail by the Hon‟ble Supreme Court in the case of Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, wherein, it was observed as under:
30. Now adverting to the facts of the instant case.
31. This Court has perused the contents of the WhatsApp Chats between the petitioner and prosecutrix, wherein, it is observed that both the parties are involved with each other for the purpose of satisfying their respective needs and desires. The contents of the chats, which cannot be reproduced herewith due to the privacy of parties indicate that no promise of marriage was made or even implied on behalf of the petitioner and hence, the relationship is not based on the promise of marriage, as alleged by the prosecutrix.
32. Moreover, the contents of the Status Report also show that the prosecutrix visited the petitioner for a few times and during the course of the investigation, the CDR of the prosecutrix‟s as well as the petitioner‟s phone were analysed and the same does not match the details as mentioned and alleged in the complaint.
33. Now, while addressing the second issue, it is apposite to note that the parties herein were in a prolonged relationship for a period of more than six years. In the case of Shivashankar @ Shiva vs. State of Karnataka and Anr., Criminal Appeal no. 504 of 2018, the Hon‟ble Supreme Court observed that when the parties are in a prolonged period of relationship, it is difficult to identify the point of time when the dissent for the sexual intercourse was given.
34. In the instant case, the parties herein were in a relationship for more than six years which is an admitted fact and upon perusal of the record, it cannot be determined whether the prosecutrix was coerced or uncomfortable to indulge in the sexual relationship with the petitioner at any given point of time. In fact, the WhatsApp chats between the parties indicate that the intention of their relationship was causal in nature and the parties, especially the petitioner, never expressed the intention to marry.
35. It is further noted that prior to the registration of the impugned FIR, the prosecutrix had lodged an FIR bearing no. 579/2017 based on the same allegations for the offence punishable under Section 376 of the IPC. However, after quashing of the said FIR vide order dated 24th September, 2020 by the Co-ordinate bench of this Court, the parties rekindled their relationship and after passage of only few months, the impugned FIR was registered on 20th February, 2021. Therefore, the conduct of the prosecutrix in the frequent filing of the FIRs indicate that no prima facie case is made out against the petitioner as they were in a consensual relationship and the allegations levelled by the prosecutrix are baseless, misconceived and are not substantiated with any material evidence.
36. At this juncture, it is pertinent to understand that the objective behind promulgation of the provisions concerning sexual offences, which is to ensure the safety and security of women who have unfortunately been subjected to heinous crimes and put in vulnerable situations especially due to the concerning state of society towards women. However, the said provisions, if misused, would defeat the objective and purpose of the sam. Moreover, the recurring pattern of breaking a relationship and reconciling with each other do not give meaning to the provisions which are promulgated for the benefit of women.
37. Therefore, considering the aforementioned facts and circumstances, along with the material on record, and the law laid down by the Hon‟ble Supreme Court, this Court is of the considered view that there is no prima facie case established against the petitioner. Further, the allegations are not supported by evidence and there is no substance in the complaint filed by the prosecutrix, therefore, it is apparent on the face of the record that the impugned FIR is concocted and false. Hence, this is a fit case to exercise powers of this Court under Section 482 of the Code/Section 528 of the BNSS to quash the impugned FIR and all the consequential proceedings emanating therefrom.
38. Therefore, the FIR bearing no. 092/2021, dated 20th February, 2021, registered against the petitioner at Police Station – Dwarka North, Delhi under Sections 376/377 of the IPC along with all consequential proceedings emanating therefrom are quashed.
39. Accordingly, the instant petition is allowed and stands disposed of, along with the pending applications, if any.
40. This order will be uploaded on website forthwith.