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Yashpal vs State And Another on 26 October, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRMC No.680/2017 IA Nos. 1/2017 1/2018
Date of order:26.10.2018
Yashpal v State of JK anr.
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For the Petitioner(s) : Mr. G. S. Thakur, Advocate.
For the Respondent(s): Mr. Raman Sharma, Dy AG for R-1

Mr. Dhiraj Chowdhary, Advocate for R-2
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal

1. In this petition filed under Section 561-A of the Code of Criminal
Procedure, the petitioner inter alia seeks quashing of FIR
No.199/2017 dated 24.10.2017 registered at Police Station, Katra
under Section 376 RPC against the petitioner on the complaint of
respondent No.2, who got the FIR registered in terms of Section
156(3) Cr.P.C. on the directions of learned Judicial Magistrate 1st
Class (Sub-Judge), Katra by alleging that she was subjected to
sexual assault on the pretext of promise to marry.

2. Brief facts of the case are that the petitioner and the respondent
no.2 were studying in the same college at Udhampur, but were not
closely known to each other. The respondent No.2, who was

CRMC No.680/2018 Page 1 of 10
married to one Mohan Lal of Reasi, started living with her husband
at Reasi and out of the said marriage one male child was born. The
respondent No.2 because of her own misdeeds, left the matrimonial
house and started living with her parents at Katra, which made her
husband to file a petition under Section 9 of the H.M. Act before
the court of District Judge, Reasi. It is further stated that
respondent no.2 with ulterior motive in order to pressurize the
petitioner for the reason best known to her and in order to extract
some money and to defame the petitioner filed a complaint before
the learned Judicial Magistrate 1st Class (Sub-Judge), Katra by
alleging therein that the complainant/respondent no.2 while
studying in Government College for Women, Udhampur used to
travel daily from her home to Udhampur and the petitioner was
also studying in the Government College (Boys) Udhampur and
residing at the house of his uncle situated at Panthal, Katra.
Petitioner started approaching the complainant in her bus and
proposed her for friendship and in this manner both started talking
casually with each other; the accused used to board in the
complainants bus and this continued since 15.01.2014 because the
marriage of the complainant was fixed on 20.01.2014 with one
Mohan Lal. On 16.01.2018, the accused called the complainant on
her mobile and asked her to come to his uncle house situated at
Panthal, Katra. The complainant refused to meet with accused
whereupon the accused threatened the complainant that in case the
complainant did not meet him on 16.01.2014 the accused would
disclose to her husband that he is having affair with the

CRMC No.680/2018 Page 2 of 10
complainant. Therefore, the complainant feeling helpless and in
order to save the dignity of her family as well as herself was forced
to go to the house of uncle of the accused situated at Panthal, Katra
where the accused had committed forcible sexual intercourse with
complainant by threatening her that if the complainant will reveal
the incident to any one, he will damage the reputation of
complainant publically. It is further stated in the said complaint
that the marriage of the complainant was solemnized with Mohan
Lal on 20.01.2014 and even after marriage, he kept on calling the
complainant, the matter came to the knowledge of complainant’s
husband and due to this reason the complainant’s husband divorced
the complainant on 13.12.2016. It is also stated that the accused
again contacted the complainant after her divorce and gave
assurance that he will marry her, again committed sexual
intercourse with complainant on 15.01.2017 at Katra. Since the
matter had come to the knowledge of complainant’s father,
therefore, complainant asked the accused to fulfil his said promise
of marriage but the accused refused to marry with the complainant
and instead asked the complainant to take money and forget about
marriage. Feeling aggrieved, the complainant lodged written report
with SHO Police Station, Katra. It is further stated that the learned
Magistrate on the basis of the aforesaid complaint directed the
SHO Police Station Katra to register the FIR for the commission of
offence under Section 376 RPC.

CRMC No.680/2018 Page 3 of 10

3. The petitioner has challenged the aforesaid impugned FIR on the
following grounds:

i) That the impugned FIR is misuse of process of law and
liable to be quashed. The respondent no.2 alleged in the
complaint that she was subjected to sexual assault and was in
love affair with the petitioner since 2014 having friendly
relation and love affair constantly for 4 years. However,
subsequently the petitioner allegedly refused to marriage with
the respondent no.2. It is submitted that respondent No.2 who
was already married to one Mohan Lal and living as husband
and wife out of the said wedlock as male child was born she left
the matrimonial house which made the husband to file a
petition under section 9 of the Hindu Marriage Act for
restitution of conjugal rights there were no relationship
between the petitioner and the respondent no.2 as alleged in
the complaint. The respondent No.2 being a mature lady as
alleged though denies by the petitioner developed the
relationship on the pretext of promise to marry and alleged in
the complaint that she used to stay with the petitioner. On such
a circumstances, no offence under Section 376 RPC can be said
to made out. Even if it is assumed without admitting this fact
that there was friendly relationship between petitioner and
respondent No.2 even then from the allegations levelled in the
complaint be taken as it, no offence under Section 376 RPC is
made out. The Hon’ble Supreme Court in case titled Tilak Raj
vs State of Himachal Pradesh, reported in 2016(4) SCC 140 has
held that the evidence as a whole including the FIR and
testimony of the prosecutrix clearly indicates that the story of
prosecutrix clearly indicates that the story of prosecutrix
regarding sexual intercourse on false pretext of marrying her
is concocted and not believable. The complainant in order to
trap the petitioner by maligning his image has implicated in a
false and frivolous case. Therefore, the FIR is liable to be
quashed.

ii) That the FIR is otherwise liable to be quashed on the
ground that there is no allegations against the petitioner that
there was forcible act on the part of the petitioner which
constitute an offence within the meaning of Section 376 RPC.
The respondent No.2 alleged the incident of 16.01.2014 but did
not report the matter to anybody which amounts to consent. ”
It has been time and again held by the Hon’ble Supreme Court
in number of cases that the allegations of sexual assault in the

CRMC No.680/2018 Page 4 of 10
co plaint must be specific against the accused persons and in
fact discloses the commission of offence which prima facie
discloses that a case under Section 376 RPC is being
established.” Therefore, the proceedings are unwarranted and
liable to be quashed.

iii) That the FIR is otherwise liable to be quashed on the
ground that the present complaint has been filed against the
petitioner in order to pressurise to solemnize the marriage. As
already submitted the respondent No.2 who is already married
to one Mohan Lal and having matrimonial disputes and the
same is pending subjudice before the court of Principal District
Judge, Reasi. The respondent No.2 being married lady is
having matrimonial dispute with her husband who filed
petition under Section 9 of the H.M.Act before the court of
Principal District Judge, Reasi by alleging therein that the
respondent No.2 wilfully and without any reasonable cause left
the matrimonial house and has refused to perform the conjugal
rights and matrimonial obligations towards her husband.
Thus, the respondent No.2 in order to pressurize the petitioner
to marry with her filed the complaint. Therefore, no offence
can be said to have been committed by the petitioner. As such,
the impugned FIR is liable to be quashed.

4. Heard learned counsel for the parties and perused the case file.

5. This Court vide order dated 20.11.2017, while entertaining the
petition, issued notices to the respondents and stayed the
investigation in the case FIR No.199/2017 registered at Police
Station, Katra.

6. Learned State counsel has filed objections on behalf of respondent
No.1, wherein it is stated that the present petition raises disputed
question of facts, which this Court while exercising its extra
ordinary jurisdiction under Section 561-A Cr.P.C. may not take
into consideration. On this count, the petition deserves to be
dismissed. It is further stated that the present petition is not

CRMC No.680/2018 Page 5 of 10
maintainable as the same has been filed by suppressing the real
facts of the case, as such, petition deserves to be dismissed. It is
also stated that the petitioner has no legal right to seek the
indulgence of this Court for quashing the impugned FIR. It is
further contended that the present petition is not maintainable and
deserves to be dismissed as it is made clear by a catena of
judgments of the Hon’ble Apex Court that if the FIR does not
disclose the commission of cognizable offence, the court would be
justified in quashing the investigation and in case commission of
offence is disclosed the court will not interfere in the investigation.
While dealing with a challenge to legality or validity of charge,
Court has to be very reluctant and cautions, as framing of the
charge is a much advanced stage in proceeding under the code and
similarly, parameters of inherent powers of High Court are will
settled and well defined by now in catena of judgments of the Apex
Court that “while framing of charge, purpose is limited to find out
whether a prima facie case is made out or not and the court is not
required to undertake an elaborate enquiry by shifting and
weighing the material to arrive at a conclusion that it will not lead
to conviction as held in guide line of Sanjan Kumar’s case.” It is
further stated that the petitioner has committed an offence which is
against the humanity and all the tenement of universal declaration
of human rights and also breached the Article 21 and Article 51
which give right to live in human dignity as the rape itself violates
such fundamental rights of the women.

CRMC No.680/2018 Page 6 of 10

7. During the course of arguments, learned counsel for the petitioner
has relied upon the judgments of Hon’ble the Supreme Court in
case titled Tilak Raj vs State of Himachal Pradesh reported in
2016 AIR (SC) 406, in case titled Rajak Mohammad vs State of
Himachal Pradesh, decided on August 23, 2018.

8. On the other hand, learned counsel for the respondents have also
relied upon the judgments of our own High Court in case titled
Rajinder Singh vs State reported in (2013) 4 JKJ 209; Labhu
Ram Sehgal vs State of JK and others reported in (2013) 3
JKJ 631 and Farooq Ahmed vs State of JK and others,
reported in 2017 Legal Eagle 275.

9. I have considered the rival contentions and law on the subject.

The law with regard to quashing of FIR is now well settled. FIR
can only be quashed in order to prevent abuse of process of law or
to otherwise secure the ends of justice. The expression ends of
justice and to prevent abuse of process of any court are intended to
work out either when an innocent person is unjustifiable subjected
to an undeserving prosecution or if an ex-facie all merited
prosecution is throttled at the threshold without allowing the
material in support of it.

10. This court while exercising the power under section 561-A Cr.P.C.,
Court does not function as court of trial, appeal or revision.
Inherent jurisdiction has to be exercised sparingly, carefully and
with great caution. These powers cannot be used to stifle the

CRMC No.680/2018 Page 7 of 10
legitimate prosecution. This is a discretionary power vested in
High Court to do substantial justice. High Court cannot examine
the evidence as to whether charge for alleged offence is made put
or not. This is prerogative of trial court where challan is produced.
Where accused has opportunity to advance submission before trial
court that material on record does not call for framing of charge
then High court shall not exercise power under section 561-A
Cr.P.C.

11. In present case, accusation against petitioner is that the
complainant/respondent no.2 while studying in Government
College for Women, Udhampur used to travel daily from her home
to Udhampur and the petitioner was also studying in the
Government College (Boys) Udhampur. Petitioner started
approaching the complainant in her bus and proposed her for
friendship and in this manner both started talking casually with
each other; the accused used to board in the complainants bus.
Since the marriage of the complainant was fixed on 20.01.2014
with one Mohan Lal, on 16.01.2018 the accused called the
complainant on her mobile and asked her to come to his uncle
house situated at Panthal, Katra. The complainant refused to meet
with accused whereupon the accused threatened the complainant
that in case the complainant did not meet him on 16.01.2014 the
accused would disclose to her husband that he is having affair with
the complainant. Therefore, the complainant feeling helpless and in
order to save the dignity of her family as well as herself was forced

CRMC No.680/2018 Page 8 of 10
to go to the house of uncle of the accused situated at Panthal, Katra
where the accused had committed forcible sexual intercourse with
complainant by threatening her that if the complainant will reveal
the incident to any one, he will damage the reputation of
complainant publically. That the marriage of the complainant was
solemnized with Mohan Lal on 20.01.2014 and even after
marriage, he kept on calling the complainant, the matter came to
the knowledge of complainant’s husband and due to this reason the
complainant’s husband divorced the complainant on 13.12.2016.
That the accused again contacted the complainant after her divorce
and gave assurance that he will marry her, again committed sexual
intercourse with complainant on 15.01.2017 at Katra. Since the
matter had come to the knowledge of complainant’s father,
therefore, complainant asked the accused to fulfil his said promise
of marriage but the accused refused to marry with the complainant
and instead asked the complainant to take money and forget about
marriage.

12. Feeling aggrieved, the complainant lodged written report with
JMIC (Sub Judge) Katra. That the learned Magistrate on the basis
of the aforesaid complaint directed the SHO Police Station Katra to
register the FIR for the commission of offence under Section 376
RPC.

13. The statement of prosecutrix under section 164-A Cr.P.C has
already been recorded, so investigation would have been
completed. In the statement, prosecutrix has stated against the

CRMC No.680/2018 Page 9 of 10
petitioner with regard to commission of alleged crime. But due to
stay order passed by this court, the challan could not be produced.
Now, whether on the basis of statement of victim, alleged offence
is made out or not against the petitioner, is not within the domain
of this court while deciding the petition u/s 561-A Cr.P.C.

14. All the pleas taken in the petition and that argued may be relevant
for discharge of accused, but not for quashing the FIR, because all
the pleas are pertaining to appreciation of facts. It is not case of
petitioner that there is an express legal bar engrafted in any of the
provisions of the Code for investigating the matter.

15. As already held, this court cannot appreciate the facts in this
petition as to whether case under section 376 RPC is made out or
not. I have gone through the law cited by counsel for petitioner.
These are not applicable in present set of circumstances, because
these laws have been evolved in different set of facts.

16. In view of above discussion, this petition is dismissed. Interim
stay, if any, is vacated. However, petitioner is at liberty to take all
pleas of facts or law before trial Court at the time of framing of
charge.

( Sanjay Kumar Gupta )
Judge
Jammu,
26.10.2018
Vijay

CRMC No.680/2018 Page 10 of 10

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