The Bombay High Court has recently quashed an FIR of rape while observing that the complainant (woman) got married to the accused and was residing with him as husband and wife.
The applicant, Swapnil Digambar Patil, has approached the High Court seeking quashing of the FIR lodged at Wadala TT Police Station on January 20, 2020 for commission of offence punishable under Section 376, 354 of IPC.
The counsel for the applicant submitted that after getting bail, the marriage between the applicant and the complainant was solemnized on March 11, 2020.
Apart from the statements made in the affidavit by the complainant, when a query was put by the Division Bench of Justices Prasanna B. Varale and Anil S. Kilor to the complainant, who was present in the Court, she reiterated before the Court that the affidavit is filed of her free will and she is not willing to lead any evidence whether oral or documentary in case the matter proceeds on the lodgment of report.
The complainant in her affidavit clearly mentioned,
“….in view of performing marriage with the applicant, therefore now I am willing to settle all my complaint with the applicant, therefore I am willing to withdraw my criminal complaint which is pending in terms of criminal FIR.”
While considering the application, the Court observed that it is true that the offence under Section 376 of IPC is of serious nature and is an offence against the society. Consequently, such an offence cannot be quashed by consent.
The Court referred to Paragraph 28 of Narinder Singh vs. State of Punjab [2014 AIR SCW 2065], wherein the Apex Court has held as under :
“28. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/Charge-sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, of the opinion sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.” that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury.”
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Therefore, the High Court held that the decision of the Apex Court, thus, makes it clear that the Court cannot decline to quash the FIR merely because the FIR incorporates a particular provision which is a serious offence or an offence against the society.
“The Court has to endeavor to find out whether the FIR indeed discloses ingredients of such offence and that the Court can accept the settlement and quash the FIR if the Court is of the opinion that such an offence is unnecessarily incorporated in the charge-sheet.”
In the instant case, the Bench noted that the complainant is a 25-year-old woman. She was friendly with the applicant. Though she had stated that the applicant had compelled her to enter into such a relationship under the pretext of marriage, she had not lodged any complaint but had accompanied the petitioner to several places from June 2019 to January 2020 and had continued to have physical relationship with the applicant without there being any misconception of fact, force, pressure or coercion.
“The FIR therefore reveals that the relationship between the applicant and Complainant was consensual. Hence, the offence under Section 376 is not made out.”
“Consequently, no fruitful purpose will be served by continuing with the prosecution. Apart from this, now the Complainant and Applicant have got married and residing together as husband and wife,”
-the Court said while quashing the FIR.