The Bombay High Court recently quashed and set aside an FIR and the consequent proceedings for offence under Sections 376 and 354 of the Indian Penal Code while holding that since the relationship between the Applicant-Accused and Respondent No. 2-Victim was consensual and the Accused married the Victim while on bail, offence under Section 376 IPC was not made out.
The Division Bench of Bombay High Court comprising of Justice Prasanna B. Varale and Justice Anil S. Kilor noted that the Applicant was granted bail and when he was out, he got married to the Respondent.
An affidavit was also placed before the bench which was filed at the instance of the victim which stated that, "I say that I have settled my case amicably with the Applicant 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 F.I.R. bearing its C.R. No. 34 of 2020 registered with Wadala T.T. Police Station for an offence punishable u/s 376, 354 of IPC against the Applicant."
The affidavit also stated that, "I say that I am giving my free consent for quashing of above referred criminal F.I.R. with my conscious mind, free will and without any sort of pressure, coercion, fraud applied on me by any person(s). Further I am also aware about the effect of the present affidavit-cum declaration more specifically the criminal F.I.R. bearing its C.R. No. 34 of 2020 pending in the file of Wadala T.T. Police Station may get quashed and the above-named Applicant may get discharged from the criminal F.I.R. filed by me for which I am recording my free consent."
The Respondent had appeared before the Bench and reiterated that the affidavit was filed on her free will and she was not willing to lead any evidence whether oral or documentary in the case.
The Court placed reliance on Narinder Singh vs. State of Punjab [2014 AIR SCW 2065] and observed -
"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 endeavour 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."
The Court in its order held, "The Complainant – Respondent No. 2 herein is a 25 year old lady. She was friendly with the Applicant. She had physical relationship with the applicant for the first time in the month of June 2019. 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 at several places during the period 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 Respondent No. 2 was consensual."
Accordingly, the Court allowed the application and quashed and set aside the FIR registered for the offences under Sections 376 & 354 of the IPC.