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Rohit Kumar vs The State ( Govt. Of Nct Of Delhi ) & … on 21 December, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.12.2018

+ CRL.M.C. 3033/2018
ROHIT KUMAR ….. Petitioner
versus

THE STATE ( GOVT OF NCT OF DELHI ) ANR….. Respondents
Advocates who appeared in this case:
For the Petitioner : Mr.Nusrat Hossain, Adv.
with petitioner in person

For the Respondent : Ms. Neelam Sharma, APP
SI Manisha Sharma, PS Aman Vihar.

CORAM:-
HON’BLE MR. JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J.

1. Petitioner seeks quashing of FIR 58/2016 under Section
376/354D/366 IPC, Police Station Aman Vihar.

2. The allegations in the FIR are that the prosecutrix/respondent
No.2 became friends with the petitioner. Their friendship continued
for 4 – 5 months where after the petitioner is alleged to have proposed
and express his love for her.

3. It is alleged that on false promise of marriage, the petitioner
made physical relationship with her on 15.11.2015 and thereafter also

CRL.M.C. 3033/2018 Page 1 of 8
they continued to make physical relationship. Petitioner is thereafter
alleged to have refused to marry her consequent to which the subject
FIR was registered.

4. As per the statement under section 164 CrPC, the version of
complainant/Respondent No.2 is that the Petitioner used to follow her
when she used to go for her computer class and forcefully tried talking
to her. He expressed his love for her and his desire to marry her. The
friendship between the parties grew and every time they met he
insisted to have sexual relations with her on the pretext of marrying
her. However, the Petitioner one day informed the complainant that
he did not want to talk to her and doesn’t want to marry her.
Respondent No.2 consumed excessive pills and was taken to the
hospital by the Petitioner after which he turned off his phone and was
not traceable by the Respondent No.2. The parents of Respondent
No.2 went to the house of the Petitioner for giving a proposal of
marriage however it was declined.

5. Petitioner was thereafter arrested on 11.01.2016. Petitioner was
released on bail on 27.09.2016. Subsequently, respondent No.2 and
petitioner got married on 14.10.2016. Parties have been living
together since then.

6. Respondent No. 2 has filed her affidavit in support of the
petition and had also appeared in person before the court on
04.10.2018 and stated that she had married the petitioner without

CRL.M.C. 3033/2018 Page 2 of 8
coercion and free will and is residing with him.

7. Petitioner has sought quashing of the subject FIR based on the
settlement.

8. Reliance is placed on the Judgment of the Supreme Court of
India in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675
wherein the Supreme court observed that:

“19. This Court considered the issue involved herein at
length in Uday v. State of Karnataka [Uday v. State of
Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775 : AIR
2003 SC 1639] , Deelip Singh v. State of Bihar [Deelip
Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC
(Cri) 253 : AIR 2005 SC 203] , Yedla Srinivasa
Rao v. State of A.P. [(2006) 11 SCC 615 : (2007) 1 SCC
(Cri) 557] and Pradeep Kumar v. State of
Bihar [Pradeep Kumar v. State of Bihar, (2007) 7 SCC
413 : (2007) 3 SCC (Cri) 407 : AIR 2007 SC 3059] and
came to the conclusion that in the event that the
accused’s promise is not false and has not been made
with the sole intention to seduce the prosecutrix to
indulge in sexual acts, such an act(s) would not amount
to rape. Thus, the same would only hold that where the
prosecutrix, under a misconception of fact to the extent
that the accused is likely to marry her, submits to the lust
of the accused, such a fraudulent act cannot be said to be
consensual, so far as the offence of the accused is
concerned.”

***** ***** ****

CRL.M.C. 3033/2018 Page 3 of 8
“21. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. Consent
is an act of reason, accompanied by deliberation, the
mind weighing, as in a balance, the good and evil on
each side. There is a clear distinction between rape and
consensual sex and in a case like this, the court must very
carefully examine whether the accused had actually
wanted to marry the victim, or had mala fide motives,
and had made a false promise to this effect only to satisfy
his lust, as the latter falls within the ambit of cheating or
deception. There is a distinction between the mere breach
of a promise, and not fulfilling a false promise. Thus, the
court must examine whether there was made, at an early
stage a false promise of marriage by the accused; and
whether the consent involved was given after wholly
understanding the nature and consequences of sexual
indulgence. There may be a case where the prosecutrix
agrees to have sexual intercourse on account of her love
and passion for the accused, and not solely on account of
misrepresentation made to her by the accused, or where
an accused on account of circumstances which he could
not have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to do
so. Such cases must be treated differently. An accused
can be convicted for rape only if the court reaches a
conclusion that the intention of the accused was mala
fide, and that he had clandestine motives.”

(underlining supplied)

9. Thus in terms of the law as laid down by the Supreme Court of
India in Deepak Gulati (supra) the court has to examine whether at an

CRL.M.C. 3033/2018 Page 4 of 8
early stage a false promise of marriage was made by the accused; and
whether the consent involved was given after wholly understanding
the nature and consequences of sexual indulgence. The court drew a
distinction between a case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the accused, and
not solely on account of misrepresentation made to her by the
accused, or where an accused on account of circumstances which he
could not have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to do so. Such
cases must be treated differently.

10. The Supreme Court held that an accused can be convicted for
rape only if the court reaches a conclusion that the intention of the
accused was mala fide, and that he had clandestine motives.

11. In my view, the ‘Court’ referred to by the Supreme Court
would be the Trial Court, which can form an opinion based on the
evidence led before it as to whether the intention of the accused was
bonafide or malafide.

12. The Supreme Court in Gian Singh Vs State of Punjab and
Another, (2012)10 SCC 303 held:

“61. The position that emerges from the above
discussion can be summarised thus: the power of the
High Court in quashing a criminal proceeding or FIR or
complaint in exercise of its inherent jurisdiction is
distinct and different from the power given to a criminal

CRL.M.C. 3033/2018 Page 5 of 8
court for compounding the offences under Section 320 of
the Code. Inherent power is of wide plenitude with no
statutory limitation but it has to be exercised in accord
with the guideline engrafted in such power viz.: (i) to
secure the ends of justice, or (ii) to prevent abuse of the
process of any court. In what cases power to quash the
criminal proceeding or complaint or FIR may be
exercised where the offender and the victim have settled
their dispute would depend on the facts and
circumstances of each case and no category can be
prescribed. However, before exercise of such power, the
High Court must have due regard to the nature and
gravity of the crime. Heinous and serious offences of
mental depravity or offences like murder, rape, dacoity,
etc. cannot be fittingly quashed even though the victim or
victim’s family and the offender have settled the dispute.
Such offences are not private in nature and have a
serious impact on society. Similarly, any compromise
between the victim and the offender in relation to the
offences under special statutes like the Prevention of
Corruption Act or the offences committed by public
servants while working in that capacity, etc.; cannot
provide for any basis for quashing criminal proceedings
involving such offences. But the criminal cases having
overwhelmingly and predominatingly civil flavour stand
on a different footing for the purposes of quashing,
particularly the offences arising from commercial,
financial, mercantile, civil, partnership or such like
transactions or the offences arising out of matrimony
relating to dowry, etc. or the family disputes where the
wrong is basically private or personal in nature and the
parties have resolved their entire dispute. In this
category of cases, the High Court may quash the
criminal proceedings if in its view, because of the
compromise between the offender and the victim, the
possibility of conviction is remote and bleak and
continuation of the criminal case would put the accused

CRL.M.C. 3033/2018 Page 6 of 8
to great oppression and prejudice and extreme injustice
would be caused to him by not quashing the criminal
case despite full and complete settlement and
compromise with the victim. In other words, the High
Court must consider whether it would be unfair or
contrary to the interest of justice to continue with the
criminal proceeding or continuation of the criminal
proceeding would tantamount to abuse of process of law
despite settlement and compromise between the victim
and the wrongdoer and whether to secure the ends of
justice, it is appropriate that the criminal case is put to
an end and if the answer to the above question(s) is in the
affirmative, the High Court shall be well within its
jurisdiction to quash the criminal proceeding.”

13. In terms of Gian Singh (supra) cases of Heinous and serious
offences of mental depravity or offences like murder, rape, dacoity,
etc. cannot be fittingly quashed even though the victim or victim’s
family and the offender have settled the dispute as such offences are
not private in nature and have a serious impact on society.

14. Since parties have married each other and are living together as
Husband and wife since 14.10.2016 and the prosecutrix has also given
an affidavit supporting the quashing, court may have sympathy for the
parties as declining to quash the FIR may have the effect of disrupting
their marital relationship, however as the allegation against the
petitioner is of having committed the offence of Rape under Section
376 IPC, in view of the judgment of the Supreme Court in Gian Singh
(Supra), the present case does not qualify for quashing of the FIR.

CRL.M.C. 3033/2018 Page 7 of 8

15. In view of the above, the Petition is dismissed.

16. It is clarified that it would be open to the Trial Court to
consider, based on the evidence before it, as to whether the facts of
the case are covered by the judgment of the Supreme Court in Deepak
Gulati (supra) i.e. as to whether the promise of the petitioner was
bonafide or malafide, without being influenced by anything stated in
this Judgment.

17. Order Dasti under the Signatures of Court Master.

SANJEEV SACHDEVA, J
DECEMBER 21, 2018
HJ

CRL.M.C. 3033/2018 Page 8 of 8

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