By Adv. R. S. Agrawal 

 

 

IN THE judgement of the case- Maksood Ahmad v. State National Capital Territory (NCT) of Delhi & Another, pronounced on January 19, 2024 after reserving it earlier, a week ago, Justice Swarana Kanta Sharma has observed in conclusion at the Delhi High Court in New Delhi, that “Without doubt, it is not the continuity of the proceedings which will be abuse of the process of law in this case, but bringing to halt or quashing of the proceedings which will be equivalent to permitting abuse of the process of law by both the parties herein. Thus, in view of the facts and circumstances of the case this Court does not find it a fit case to quash the FIR”. One of the quite a few issues the High Court has to answer and deal with in this case has been that as to whether love and consequent marriage after registration of the FIR is or is not always an adequate defence against a case registered under section 376 of IPC for the purpose of quashing the FIR without a trial. This case also presents a situation which points out that there may be some cases involving facts and situations that even the Legislature did not plan for, which will raise questions and issues in a petition that may not have come up or dealt with previously by a court of law.

 

The present writ petition was filed under Articles 226 and 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure (CrPC) for quashing the FIR in the case registered at the Police Station GTB Enclave, Delhi for offence under sections 376/506 of IPC, centers on the conflicting stories presented by the accused-petitioner Maksood Ahmad and the prosecutrix (respondent-2) -Ms ‘M’. The story of the respondent No-2 being of forced assault and the conflicting stand of the petitioner that it was a consensual live-in sexual relationship. The HC has pointed out that there should not be an expectation that as a matter of right, subsequent marriage between the prosecutrix and the accused is sufficient ground for quashing the FIR of every case registered under section 376 (rape) of IPC. Needless to say, every case has to be adjudged strictly on the basis of evidence, conduct of the parties, their age etc., and other material available on record. After considering all material on record and hearing the parties, the HC reached the following conclusions: 1. Allegations against the accused: The allegation s leveled by the respondent-2 Prosecutrix against the petitioner-accused in the FIR were serious in nature, alleging therein that accused, after intoxicating the prosecutrix, had established sexual relations with her without her consent, and also had extended threats to her not to disclose about the incident to anyone.

 

The same allegations were reiterated by her in the statement recorded under section 164 of CrPC before the Magistrate, as well as in two Supplementary statements recorded under section 161 of CrPC. 2. Misconduct on the part of the prosecutrix: The misconduct of the prosecutrix is writ large as she had lied at every stage and misguided the Police as well as the Courts. The Court acknowledges the present case as one marked by mala fide intentions on the part of the prosecutrix, Ms ‘M’, who failed to disclose before the Courts and the investigating authorities, the factum of her marriage to the accused Maksood, for almost a month after the registration of FIR. Despite attending court proceedings and recording statements, she consistently omitted the crucial information about her conversion and marriage. The turning point came during the hearing on December20, 2022, when Ms ‘M’ admitted to filing a false FIR against the accused and for misleading the Courts. Subsequently, during the adjudication of the application for regular bail on February 25, 2023, she expressed a desire to drop further proceedings against the accused, further emphasising her inconsistent and misleading conduct throughout the investigation and court proceedings. 3. Simultaneously, the conduct of the accused also raises questions, given the delay in revealing the marriage and the compromise deed executed in the year 2012, before the Sessions Court.

 

The failure of the accused to disclose these vital facts during the application for anticipatory bail reflects transparency on his part. This HC, thus, noted that both parties had not approached the Courts with clean hands, with each contributing to the confusion and complicating the legal proceedings. 4. Previous Marriage, compromise and the Quashing: The parties herein base their pleas for quashing solely on the ground of compromise that they have entered into a marital union. Before averting to this ground, it is crucial to emphasise that quashing especially in cases falling under section 376 of IPC, cannot be considered a standard practice. Even if this HC entertains the possibility of a settlement, it must scrutinize whether the compromise is such and pertains to the marital aspect between the parties, that it warrants he quashing of FIR. Herein lies a critical concern-the prosecutrix was already married to her first husband. The investigation of the case reveals that the prosecutrix has not taken divorce from her previous husband and neither she has filed any document which establishes that she is divorced from her first husband, even though she mentions in her complaint that she was a divorcee, thus casting doubt on the legality of the marriage solemnised between the accused and the prosecutrix itself. This raises suspicion about the validity of the marriage between the prosecutrix and the accused, as it appears from the record that the prosecutrix is still married to her previous husband, and therefore, she cannot enter into a second marriage without divorcing her previous husband.

 

Thus, this Court is of the opinion that whether the marriage solemnised between the prosecutrix and the accused vide the Nikahnama of October 28, 2022, as per Muslim rites and customs, is a valid marriage or not, is a question in itself that still remains unanswered at this stage which is sought to be made a ground for quashing. 5. Suspicious circumstances surrounding the marriage of prosecutrix and accused: As it could not be ascertained at this stage as to whether the religious conversion in this case was with a bona fide intent to only marry the prosecutrix or to clandestinely project to the prosecutrix that now she was married to the accused and now both of them could approach the courts for seeking bail and for quashing of the FIR. According to the HC, without a doubt sexual violence against a woman should invite no tolerance. At the same time manipulating the system by the parties to a case under section 376 of IPC would equally need to be dealt with a stern hand and serious efforts should be made to address and remedy failings within the criminal justice System and through our society. The arguments advanced before the High Court could not prima facie prove that the contention of compromise on the basis of marriage is genuine or not or it is only for getting FIR quashed will be clear only during trial and passage of time. In view of this the Delhi High Court has dismissed the petition declining to quash the FIR.