Marriage no shield: HC refuses to quash FIR, says rape offense against society

Srinagar, Feb 15: Underscoring that rape is not an offence against a person alone but against society, High Court of J&K and Ladakh has declined to quash an FIR related to gang rape of a woman despite one of the accused marrying to the victim.

A bench of Vinod Chatterji Koul, while dismissing a plea seeking to quash an FIR, held that the court's inherent power cannot be used to quash FIR based on compromise if it is in respect of heinous offences which are not private in nature and have a serious impact on the society.

Prosecution case is that July 21, 2021, police station Uri in response to a written complaint lodged an FIR. During the investigation that followed, statement of witnesses under Section 161 Cr.P.C. was recorded which indicated that a woman was kidnapped by one, Syed Imtiyaz Hussain with the help of his brothers.

After Prosecutrix (victim) was recovered from the possession of accused person in her statement, she deposed that she was jointly raped by accused persons at unknown place, so offences punishable under Section 376D (gang rape), 384 (extortion), 506 (criminal intimidation) were incorporated in the case. The government said Hussain and his brothers (petitioners) were involved in a heinous offence against the woman.

As per petition, Syed Imtiyaz Hussain has married the woman who is major, out of her own free will and consent on July, 28 2021. “Worthwhile to mention here that settlement or compromise must satisfy the conscience of the Court. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not same as compounding of offence,” the court said. 

The Court pointed out that for serious offences, like murder, rape, dacoity or other offences of mental depravity under Indian Penal Code or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, settlement between offender and victim can have no legal sanction at all. “Each case will depend on its own facts and no hard-and-fast category can be prescribed”. 

The bench underscored that 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. “Whether to secure the ends of justice, it is appropriate that the criminal case is put to an end,” the court said. The rape is not an offence against the person alone, but it is against society”

The court observed that the Courts have to take a victim-sensitive approach and not pronounce verdicts that could infringe upon the victim’s rights. 

“In view of the nature of offences alleged in the present case, the power under Section 482 Cr.P.C. cannot be used to quash the proceedings based on compromise if it is in respect of heinous offence which are not private in nature and have a serious impact on the society”, the court said. “In cases of this nature, the fact that in view of compromise entered into between parties, the chance of conviction is remote and bleak also cannot be a ground to terminate the investigation and quash FIR and all the proceedings emanating therefrom by invoking the power under Section 482 Cr.P.C.” The Court concluded that in such circumstances the FIR did not call for any interference and it dismissed the plea challenging it.