Jammu & Kashmir High Court
Jasmit Singh vs State Of J&K And Others on 3 November, 2021
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
Reserved on 20.10.2021
Pronounced on 03.11.2021
CRM(M) No. 249/2019 (O&M)
Jasmit Singh .....Appellant/Petitioner(s)
Through :- Mr. Vishal Sharma, Advocate
v/s
State of J&K and others .....Respondent(s)
Through :- Mr. Aseem Sawhney, AAG for Nos. 1
and 2
Mr. Ayushman Kotwal, Advocate for
No. 3
CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The present petition has been filed by the petitioner for quashing of FIR bearing No. 0051 dated 06.04.2019 for commission of offence under section 376 RPC registered with Police Station, R. S. Pura at the instance of respondent No. 3.
2. It is stated that the respondent No. 3 who is resident of a nearby village of the petitioner, was known to the petitioner. The petitioner went to the Cyprus Europe in the year, 2008 and came back to India in the year, 2013. The respondent No. 3 got married with one Manjeet Singh of Gurdaspur in the year, 2015 and settled in her matrimonial home after marriage. It is further stated that after some years of marriage, she came back to her village and coincidently met the petitioner at Talli Sahib Gurudwara in the year, 2016 and told the petitioner that she was having a marital dispute with her husband as well as her in-laws and she had 2 CRM(M) No. 249/2019 been residing with her parents now. The respondent No. 3 has also filed a petition under the Domestic Violence Act against her husband as well as in-laws.
3. It is further stated that thereafter the respondent No. 3 started becoming friendly with the petitioner while visiting the Gurudwara and started calling the petitioner on mobile. It was in the year, 2018, the respondent No. 3 started emotional blackmailing the petitioner by telling him that she was depressed and did not want to live but the petitioner took it lightly however, the respondent No. 3 started asking the petitioner to marry her which the petitioner refused as the respondent No. 3 was already married and her marriage was subsisting. Even otherwise the petitioner never had any such feelings towards her. It is further stated that the respondent No. 3 started requesting the petitioner for some monetary help to contest the litigation with the husband as well as her in-laws and the petitioner gave a sum of Rs. 10,000/- to the respondent No. 3.
4. The petitioner claims to have suffered shocked of his life when in the first week of March, 2019, the respondent No. 3 threatened the petitioner to pay Rs. 5 lacs to her otherwise she would file a case of rape against the petitioner. On 4th or 5th of March, the petitioner got a call from a mobile bearing No 8716897851 and the person calling the petitioner identified himself as Advocate Harpreet Singh who told the petitioner that the respondent No. 3 was going to file a complaint against the petitioner for raping her on the promise of marriage and in case the petitioner paid a sum of Rs. 5 lacs, then the matter could be 3 CRM(M) No. 249/2019 settled. The petitioner refused to pay anything and on 10.03.2019 he was called by the Police from Police Station, R. S. Pura and as the petitioner went to the Police Station, he was detained and taken in custody and on enquiry, the Police told him that the respondent No. 3 had filed a complaint against the petitioner under section 376 RPC and in case the petitioner wanted to compromise with the respondent No. 3, he would be released from custody.
5. It is further stated that as the petitioner was left with no option but to compromise, otherwise he would have been falsely implicated in the false case under section 376 RPC ruining the life of the petitioner, he agreed to give Rs. 1.50 lacs to the respondent No. 3 under duress and after the family of the petitioner paid her the said amount, the respondent No. 3 gave the statement to the Police that she did not want to press her complaint against the petitioner whereupon the petitioner was released from the custody on 13.03.2019.
6. It is further averred that to the surprise of the petitioner, the respondent No. 3 again started blackmailing the petitioner demanding Rs. 3.5 lacs more from the petitioner but as the petitioner was not having that amount, he refused to pay the same. Thereafter, the respondent No. 3 came to the petitioner and told him that she had lodged the FIR against the petitioner under section 376 RPC in the Police Station, R. S. Pura and in case the petitioner failed to pay her Rs. 5 lacs, he would be arrested by the Police but since the Police was aware about the entire matter, so no action was taken by the Police against the petitioner on the basis of false and frivolous complaint of respondent No. 3. The 4 CRM(M) No. 249/2019 petitioner enquired and found that the respondent No. 3 again filed a false and fabricated complaint before the JMIC R. S. Pura and on the directions of the JMIC R. S. Pura under section 156(3) Cr.P.C, the Police registered the FIR bearing No. 0051 under section 376 RPC against the petitioner on 06.04.2019 (supra).
7. The petitioner has impugned the FIR (supra) on the following grounds:
(a) that the FIR impugned is fallacious as even in the application filed by the respondent No. 3 under section 156(3) Cr.P.C, the respondent No. 3 had clearly mentioned that she had earlier filed a complaint with the Police and with her application under section 156(3) Cr.P.C, enclosed the copy of the said complaint (Annexure-III to the present petition) and even if the JMIC R. S. Pura had directed to investigate the matter, the allegations contained in the application under section 156(3) Cr.P.C. would not constitute the FIR and rather it was the first complaint lodged by the respondent No. 3 with the Police, that would constitute FIR but the Police has registered the FIR impugned on the totally contradictory facts as alleged in the earlier complaint filed by the respondent No. 3 before the Police and in the subsequent application under section 156(3) Cr.P.C.
(b) That the application under section 156(3) Cr.P.C. is only in the nature of the grievance before the Magistrate that despite filing a complaint before the SHO of concerned Police Station, the SHO has failed to register the FIR and even if the Magistrate directs the registration of FIR, it would be only the complaint filed before the 5 CRM(M) No. 249/2019 SHO which shall constitute the FIR in true spirit of the provisions of section 154 Cr.P.C, but the SHO Police Station R. S. Pura, respondent No. 2 herein has treated the totally improvised and contradictory allegations contained in the application under section 156(3) Cr.P.C. as the FIR which is illegal.
(c) That the complaint filed by the respondent No. 3 before the respondent No. 2 on 09.03.2019 specifically contained the allegation that the petitioner had sexual intercourse with the respondent No. 3 under the false promise of marriage while in the subsequent application under section 156(3) CrPC, she projected an entirely different and contradictory story.
(d) That the respondent No. 3 was already married since 2015 and there was no question of any promise of marriage with the respondent No. 3 and the allegations are leveled in the FIR only to blackmail and extract money from the petitioner, as such is an abuse of process of law.
8. The petitioner has placed on record the certified copy of the FIR, certified copy of the application filed by the respondent No. 3 against her husband and in-laws, the copy of the application filed by the respondent No. 3 with the Police Station on 09.03.2019 and the statement made by the respondent No. 3 with regard to the withdrawal of her complaint.
9. Response has been filed by the respondent Nos. 1 and 2 in which it is stated that the FIR in question was registered on the basis of directions 6 CRM(M) No. 249/2019 of the learned JMIC R. S. Pura and the statement of the victim has been recorded under section 164-A Cr.P.C.
10. The respondent No. 3 has also filed the response in which it is stated that the petitioner and the complainant (respondent No. 3) incidentally became Face book friends in the year, 2012-13 and started chatting with and meeting each other and once the petitioner took the complainant to his house at Chak Mohd. Yar under the pretext of introducing her to his parents but no family member of the petitioner was present in the house at that time. The petitioner served a cold drink to the complainant that rendered her unconscious. On regaining her consciousness, she found herself as well as the petitioner nude. After the above incident, the petitioner started harassing and threatening the respondent No. 3 that he had clicked her nude photographs and prepared her nude videos and would circulate them in case she lodged any report against him or disclosed the incident to anyone. It is further stated in the response that in the meantime, the respondent No. 3 got married in the year, 2015 and started living a peaceful life with her husband Manjeet Singh in Gurdaspur and because of continuous threats of the petitioner, there was breakdown in her matrimonial life within less than a year of her marriage. The respondent No. 3 was compelled to lodge the report against the petitioner at Police Station, R. S. Pura on 09.03.2019. The Police, however, hushed up the matter by obtaining her signatures on a pre-written statement, which was recorded in Urdu on 13.03.2019 as the respondent No. 3 was never aware about the contents of the same. The 7 CRM(M) No. 249/2019 respondent No. 3, thereafter, was constrained to file the application under section 156(3) Cr.P.C.
11. Mr. Vishal Sharma, learned counsel for the petitioner has vehemently argued that the bare perusal of the application on the basis of which the respondent No. 3 moved an application under section 156(3) Cr.P.C. before the concerned Magistrate, would reveal that the only allegation was that the petitioner after having physical relations refused to marry her and even in an application filed under section 156(3) Cr.P.C. vague allegations have been leveled. He further stated that that the present FIR has been lodged by the respondent No. 3 only to blackmail the petitioner and to force him to cough up more money.
12. Per contra, Mr. Ayushman Kotwal, learned counsel appearing for the respondent No. 3-prosecutrix has vehemently argued that the FIR cannot be quashed and further that even the statement of the prosecutrix has been recorded under section 164-A Cr.P.C. the perusal of which would reveal that offence under section 376 RPC is made out against the petitioner. Mr Aseem Sawhney, learned AAG also argued on the similar lines.
13. Heard and perused the record including the Case Diary.
14. From the record it is evident that on 09.03.2019, the respondent No. 3 lodged a report with SHO Police Station, R. S. Pura in which it was stated by her that 8 years ago, she came into contact with the petitioner and they both became friends. The petitioner promised to marry her and continued to rape her. He even made the respondent No. 3 pregnant twice but thereafter aborted with medicines. He continued to persuade 8 CRM(M) No. 249/2019 the respondent No. 3 that he would marry her and even clicked her nude photographs and now he was avoiding to marry her. It was further stated in the said application that on 08.03.2019 at around 11-12 AM, the petitioner met her near Petrol Pump, R. S. Pura and he was accompanied by two persons. He told the respondent No. 3 to have physical relations with them but she told him that he had to solemnize marriage with her and still he was indulging in such bad acts. Then the petitioner started abusing her and threatened to kill her, in the event, she lodged any report with the Police. In the application that was initially filed by the respondent No. 3, the only allegation is that the petitioner had a sexual relation with her on numerous occasions and promised to marry her.
15. The application filed by the respondent No. 3 under section 156(3) Cr.P.C is reproduced as under:
"Brief facts of the case is that on 06.04.2019 a complaint received at this police station through Dak duly forwarded by Hon'ble court of JMIC RS Pura for registration of FIR. The contents of the complaint is as, Before the learned court of Judicial Magistrate 1st Class RS Pura. Sukhwinder Kour age 24 years, D/o Sh. Paramjit Singh R/o Dhinday Kalan Tehsil RS Pura. Complainant Versus Jasmeet Singh alias Jassi S/o Gurmeet Singh R/o Chak Mohd Yaar Tehsil RS Pura accused. In the matter of:- Application under section 156(3) directing the SHO P/S R S Pura to lodge FIR against the above named accused persons under relevant provision of law. May it please your honour the complainant most respectfully submits as under- 1. That the complainant is resident of Dinday Kalan Tehsil RS Pura District Jammu. 2 That the above said accused person are known to the applicant through Facebook and due to this the applicant used to talk with them and also meet with 9 CRM(M) No. 249/2019 the applicant and the said Jasmeet Singh alias Jassi became a good friend of the applicant and the said Jasmeet Singh alias Jassi has taken the benefit of this and used to blackmail the applicant on the pretext that he has some photograph of her and if she will not merry him he will make the poster of her photo and circulate the same to the locality and started harassing and pressurizing the applicant to have the sexual relation with him and the applicant who is a student due to the fact that he will published my photos and also due to the fear of the parents, the applicant surrender before him and the said Jasmeet Singh alias Jassi made the sexual relation with the applicant by blackmail the applicant. 3. that the Jasmeet Singh alias Jassi has two times pregnant the applicant and when the applicant told the Jasmeet Singh alias Jassi about her pregnancy the accused has given her the medicine and also threaten that if she told anything about her relation and pregnancy to anyone he will kill the applicant and her family and forcibly given some medicine to the applicant and due to these medicine the pregnancy of the applicant terminated. 4 That the Jasineet Singh alias Jassi also threat the applicant of the dire consequences if she either told anything about these facts and circumstances. 5 That the accused has with mala fide intention blackmail the applicant and forcibly rape the applicant many time during the last so many years. 6 that the accused on 08/03/2019 the accused called the applicant to came near park situated at RS Para and when the applicant reached their the accused was already present their with his friend in a Mohindra Bolero car and has started pressurizing the applicant to have sex with his friend who were presented inside the Bolero Car and when the applicant resist him, he started pulling the applicant inside the said (SUV) and also touch her private parts of her body and also used the obscene language had threaten the applicant that she have to sex with his friend and if she will made the and if she will not obey this then he will circulates her picture to the Face Book and whatsapps and made the life to the applicant a hell and also 10 CRM(M) No. 249/2019 threat that he will kill her and also kill her family and the applicant being a girl came under the intimidation of the accused persons. That again Jasmeet Singh alias Jassi many a time forcibly commit the rape of the applicant and after committing the rape the said Jasmeet Singh alias Jassi threaten me that if the applicant told/ narrated the same to anyone then he will kill her and her family. 8 That the accused persons made the life of the applicant a hell and the applicant cannot bear all these inhuman act upon her and decided to tell all the story to her parents. 9 That the said Jasmeet Singh alias Jassi committed rape of the applicant by blackmailing and threatening the applicant. 10. That the applicant has filed a written complaint before the SHO P/S RS Pura on 09/03/2019 and the SHO has arrested the persons and later on the applicant was told by the SHO to sign some paper which are written in Urdu so that the case of the applicant is proceeded and the applicant has signed the same. After that the applicant got the knowledge that the said Jasmeet Singh alias Jassi had been released by the SHO when the applicant approached the SHO and asked the SHO for the reason of his release the SHO has delay delayed the matter and also not given any satisfactory answer to the applicant. Copy of the application given to the SHO is annexed herewith as Annexure A. 11 That in the meantime the applicant has moved an application before the SSP Jammu for redressed her grievance on 25/03/2019 and accordingly the SSP Jammu forwarded the application to the SDPO RS Pura but neither the SHO nor the SDPO has taken any action on the application of the applicant and has not registered any FIR against the above named accused person till date. Copy of the application filed before the SSP Jammu is annexed herewith as Annexure C2. 12 It is all the more important to direct the Incharge Police Station RS Pura to investigate the matter and register an FIR against the accused for committing the above and other related offences.
13. That the offences have been committed within the territorial Jurisdiction of this Hon'ble court and Police station 11 CRM(M) No. 249/2019 RS Pura has the Jurisdiction to investigate the matter and register FIR against the accused as complainant and accused also reside within the territorial Jurisdiction this Hon'ble court as well as the Police station concerned. In the premises:- It is, therefore, most humbly prayed that keeping in view the above facts and circumstances of the case, the complaint of the complainant for investigation of the above offences and those to be made out from the facts and circumstances may kindly be sent to Incharge Police station RS Pura under section 156 (3) CrPC and thereafter the accused may kindly be tried and punished accordingly complainant Sukhwinder Kour."
16. In the application under section 156(3) Cr.P.C, the respondent No. 3 had stated altogether different story whereas in the application filed on 09.03.2019 by the respondent No. 3, she had simply stated that the petitioner asked her to have sexual intercourse with his friends and she refused and then the petitioner abused her and threatened to kill her and in the said application there was no averment that the petitioner tried to pull her inside the car and touched her private parts of her body. Further, even in the application, it is not mentioned as to when she was raped by the petitioner. A perusal of the statement made by the respondent No. 3 reveals that the respondent No. 3 came into contact with the petitioner on Face book and used to chat with him and they became good friends. After two three months, they met with each other and one day, the petitioner called her at Simbal Morh, took her to his home at Chak Mohd. Yar. He gave her cold drink and she became unconscious. After some time she regained her consciousness and found herself and the petitioner to be in nude condition. She told him as to why he forcibly made physical relations with her but he did not reply. 12 CRM(M) No. 249/2019 After few days the petitioner made a phone call and told her that he had taken her nude photographs and had made video and threatened her that if she did not come to his home, he would circulate the nude photographs and videos at the internet. After that the petitioner forcibly and by blackmailing made physical relations and raped her. Twice she became pregnant and he gave medicines to abort the pregnancy. On 08.03.2019, the petitioner called her at R. S. Pura's Park and he came along with his two friends in the Bolero Vehicle. The petitioner asked her to sit in the vehicle and also told her to have physical relation with his friends which she refused and then she returned home. Thereafter she gave an application registration of FIR.
17. From the comparative perusal of the application dated 09.03.2019, application filed under section 156(3) Cr.P.C, the statement recorded under section 164-A CrPC of the respondent No. 3-victim as well as her objections, the whole grievance of the respondent No. 3 is with regard to the entering into physical relations with the petitioner on account of promise to marriage by the petitioner and that too prior to the solemnization of marriage of respondent No. 3 with one Manjit Singh at Gurdaspur. It is not in dispute that there is marital discord between the respondent No. 3 and her husband. The respondent No. 3 filed application on 09.03.2019 and in that it was no where whispered that the respondent No. 3 was already married and even in her application under section 156 (3) Cr.P.C, the respondent No. 3 did not mention that she was married. But, in the response filed by the respondent No. 3 to the present petition, she has stated that she was married with Manjit 13 CRM(M) No. 249/2019 Singh and because of the conduct of the petitioner, her married life has been spoiled. Even if, allegation leveled in the application filed on dated 09.03.2019 and application under section 156(3) Cr.P.C. coupled with her statement recorded under section 164-A Cr.P.C, what transpires is that the respondent No. 3 and the petitioner were in physical relationship prior to the marriage of the respondent No:3 and for these 8 years, the respondent No. 3 never bothered to lodge any complaint against the petitioner, which clearly shows that she had been consenting party to the physical relations made with the petitioner. Even after having physical relations with the petitioner, the respondent No. 3 got married and even till marriage in the year 2015, no complaint was lodged by her. In the application dated 09.03.2019, the grievance of the respondent No. 3 was that the petitioner was avoiding to marry her after having physical relations with her. It is difficult to comprehend as to how the petitioner could have married her, when she was already married. More so, even the allegations regarding physical relations made between the petitioner and the respondent No. 3 are vague. No year, month and dates have been mentioned when such relations were made and on the basis of such allegations no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
18. In State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Apex Court has laid down following criteria for exercising power under section 483 while considering issue of quashing FIR/criminal proceedings:
14 CRM(M) No. 249/2019
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer 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."
19. Otherwise also, law is well settled that when there is allegation that the sexual relationships were made on the basis of false promise of marriage, then it has to be established that promise of marriage was a false promise, given in bad faith and with no intention of being adhered 15 CRM(M) No. 249/2019 to at the time it was given. In Pramod Suryabhan Pawar v. State of Maharashtra, reported in (2019) 9 SCC 608, the Apex Court quashed the FIR by observing as under:
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.
19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows:
19.1. The complainant and the appellant knew each other since 1998 and were intimate since 2004. 19.2. The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant.
19.3. The appellant expressed his reservations about marrying the complainant on 31-1-2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015.
20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax.
21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the 16 CRM(M) No. 249/2019 FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage.
Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 IPC has occurred."
20. Further the Apex Court in Sonu @ Subhash Kumar vs. State of Uttar Pradesh and another, reported in 2021 (2) JKJ (SC) 337, has referred to following three important aspects while quashing the charge sheet:
"i. The relationship between the appellant and the second respondent was of a consensual nature;
ii. The parties were in the relationship for about a period of one and half year; and iii. Subsequently, appellant had expressed disinclination to marry the second respondent which led to the registration of F.I.R"
21. For all what has been discussed above, this Court is of the considered view that no offence under section 376 RPC against the petitioner is made out and the continuance of the FIR impugned shall be nothing but an abuse of process of law, as such, the FIR bearing No. 0051 dated 06.04.2019 for commission of offence under section 376 RPC 17 CRM(M) No. 249/2019 registered with Police Station R.S Pura is quashed. Case Diary be returned to learned AAG.
(Rajnesh Oswal) Judge JAMMU 03.11.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No