The High Court quashed an FIR under Section 376 IPC in a criminal Misc No. petition. Finding no offence made out due to implied consent and relying on a compromise, the court exercised its inherent powers to prevent abuse of process.
FIR No.44 dated 18.10.2009 and all subsequent proceedings are quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl.Misc.No.M 13236 of 2010 # 1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANAT AT CHANDIGARH .
Crl. Misc.No.M 13236 of 2010
Date of Decision:-25.08.2010
. Harvinder Singh
...... Petitioner .
Versus
. State of Punjab & Anr
. ...... Respondents
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH.
Present:Mr. R.K. Kapila, Advocate for the Petitioner.
Mr. Gaurav Garg Dhuriwala, AAG Punjab.
Mr. G.P. Singh Ahluwalia, Advocate for Respondent No.2.
JASWANT SINGH, J.(ORAL)
Present petition under section 482 Code of Criminal Procedure is for quashing of FIR No.44 dated 18.10.2009 under section 376 of the Indian Penal Code, registered with Police Station Garhdiwal, District Hoshiarpur and the subsequent proceedings on the basis of compromise dated 13.4.2010(Annexure P-2) arrived at between the accused/petitioners and the complainant.
In the FIR complainant Smt. Shama Rani had made
Crl.Misc.No.M 13236 of 2010 # 2#
allegations against the accused-petitioner that in the year 1997 she was married to one Davinder, resident of Amritsar and had two kids from him. Around four years back she got divorce from him as he used to beat him and the kids are with Davinder. Thereafter she was married to one Mukesh Anand, resident of Pritam Nagar, Kartarpur, District Jalandhar and during that period she came into contact with petitioner/accused Harvinder Singh @ Lovely. She thereafter divorced her second husband as he was handicapped. It is alleged that petitioner Harvinder Singh @ Lovely used to say that he would marry the complainant and under this garb, he used to commit rape with her whenever she used to go to Lovely's house. He(petitioner) used to sexually abuse her and now he has refused to marry her.
Upon notice Mr. G.P. Singh Ahluwalia, Advocate has put in appearance on behalf of respondent no.2. Respondent no.2 is also present in the court, who has been identified by her counsel. She has filed an affidavit dated 25.08.2010 which is taken on record. In the affidavit she has stated that the dispute between the petitioner-accused and her has been amicably settled and she does not wish to prosecute the petitioner any further and has no objection if the aforementioned FIR is quashed. Her statement has also been recorded separately.
Learned State counsel on instructions from HC Parvinder Singh also submits that the challan in the present case is yet to be presented.
A bare reading of FIR, in my opinion reveals that no offence under Section 376 Indian Penal Code is made out. It cannot be
Crl.Misc.No.M 13236 of 2010 # 3#
believed that the complainant is so gullible that she could be induced into having sexual relations with Harvinder @ Lovely(petitioner) simply on the pretext of marriage. It cannot be disputed that the complainant is a woman with two kids and has undergone two divorces. It is also not disputed that she came into contact with petitioner Harvinder Singh during her second marriage with a handicapped person. It is further clear from the allegations that the complainant and the petitioner had sexual relations over a period of time. Thus it cannot be inferred that the complainant was not a consenting party.
Still further keeping in view the fact that complainant does not wish to pursue the matter any further no useful purpose would be served in continuing with the proceedings, accordingly the FIR is liable to be quashed.
A Full Bench of this Court in Kulwinder Singh and others v. State of Punjab and another , 2007(3) RCR (Criminal) 1052 has held that this Court, in appropriate cases, while exercising powers under Section 482 Cr.P.C., may quash an FIR disclosing the commission of noncompoundable offences. The relevant extracts read as under:-
“The only inevitable conclusion from the above discussion is that there is no statutory bar under the Cr.P.C., which can affect the inherent power of this Court under Section 482. Further, the same cannot be limited to matrimonial cases alone and the Court has the wide power to quash the proceedings even in non-compoundable offences notwithstanding the bar under Section 320 of the
Crl.Misc.No.M 13236 of 2010 # 4#
Cr.P.C., in order to prevent the abuse of law and to secure the ends of justice.”
Similar views were expressed by Hon'ble the Apex Court in Madan Mohan Abot v. State of Punjab 2008(4) SCC 582, the relevant extract of which is as under:-
“We need to emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilised in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.”
Keeping i n view the above settled legal position and taking into account the fact (i) that both the parties have desired to live in peace and harmony and carry on with their lives without any ill will or rancor by resolving their differences and entering into the aforesaid compromise;(ii) that from the allegations in the FIR no offence under Section 376 of IPC is made out as discussed hereinabove, it is evident that it is a fit case where there is no impediment in the way of the Court to exercise its inherent powers under Section 482 Cr.P.C., for quashing of the FIR in the interest of justice.
Accordingly, the present petition is allowed and FIR No.44 dated 18.10.2009 under section 376 of the Indian Penal Code, registered with Police Station Garhdiwal, District Hoshiarpur and all
Crl.Misc.No.M 13236 of 2010 # 5#
subsequent proceedings arising therefrom, are quashed.
( JASWANT SINGH ) JUDGE
25th August, 2010 Vinay.
3 issues framed by the court
Whether the FIR under Section 376 IPC is maintainable in view of the allegations and the compromise between the parties.
Whether the inherent powers under Section 482 Cr.P.C. are exercisable to quash proceedings in a non-compoundable offence where the complainant does not wish to pursue the matter.
Whether the allegations in the FIR disclose an offence under Section 376 IPC.
Colour shows how this judgement treated each authority
Kulwinder Singh and others v. State of Punjab and anotherRelied on¶26
Kulwinder Singh and others v. State of Punjab and another, 2007(3) RCR (Criminal) 1052
Madan Mohan Abot v. State of PunjabRelied on¶30
Madan Mohan Abot v. State of Punjab, 2008(4) SCC 582 · Who else cites this
2 provisions across 2 enactments
Harvinder Singh
State of Punjab
Jaswant Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
