Jammu & Kashmir High Court
Rajinder Kumar vs State Of J&K And Anr on 2 May, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 03.03.2025
Pronounced on 02.05.2025
CRMC No. 552/2018
Rajinder Kumar .....Appellant(s)/Petitioner(s)
Through: Mr. Mazher Ali Khan, Adv.
Vs
State of J&K and Anr. ..... Respondent(s)
Through: Mr. Sumeet Bhatia, GA for No. 1
None for No. 2
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. This petition has been filed for quashing the FIR No. 38/2018 dated
16.08.2018 registered with Police Station, Panchari, District Udhampur
under sections 376 and 506 RPC by respondent No. 1 at the instance of
respondent No. 2.
2. It is stated in the petition that false and frivolous FIR without mentioning
the date, time and place of occurrence has been registered against the
petitioner at the instance of respondent No. 2 and a bare perusal of the
same would reveal that no offence is made out against the petitioner, even
if, the allegations at their face value, are assumed to be correct. It is also
urged by the petitioner that respondent No. 2 has alleged the occurrence to
have taken place in the month of June 2011 and the contents of the
complaint itself establish that respondent No. 2 has grievance in respect of
the broken promise of marriage, though the petitioner denies the same. In
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the FIR, though it is stated that respondent No. 2 had maintained the
relationship with the petitioner for seven years, but the petitioner did not
even know respondent No. 2.
3. The petitioner has further tried to demonstrate the falsity of the FIR
impugned by submitting that the petitioner was selected as Constable in
Sashastra Seema Bal in May 2011 and the petitioner joined the service on
09.05.2011 at 45th Battalion, Bhopal MP and underwent the basic
recruitment training course from 20.06.2011 to 14.04.2012 in the Training
Center Gorakhpur, UP and during that period, he had not availed any kind
of leave or remained absent from the duties and the original service
certificate issued in this regard has been placed on record. Rather in the
year 2016, the parents of respondent No. 2 had approached the father of
the petitioner for solemnizing the marriage which the father of the
petitioner had refused but the respondent No. 2 was adamant to solemnize
marriage with the petitioner and had openly declared that she would cross
any limit and not allow the solemnization of the marriage of the petitioner
with someone else. The FIR has been lodged only because the marriage of
the petitioner has been fixed after his engagement on 12.09.2018.
4. It is also stated by the petitioner that he obtained leave from the Unit with
effect from 29.08.2018 only, therefore, there was no occasion for him to
be posted in J&K as alleged in the complaint. He is posted at Lumla
District Tawang, Arunchal Pradesh on the Indo Bhutan Border where even
mobile facility is not available. The petitioner has also placed on record
his wedding invitation card, leave order and certificate to prove that the
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petitioner had not obtained any kind of leave from 09.05.2011 to
14.04.2012 and had not even remained absent from the duties during that
period.
5. The respondent No. 1 has filed the response, narrating the factual aspects
of the case and it is stated that the present petition is not maintainable as
disputed questions of fact have been raised.
6. The respondent No. 2 has also filed the response, thereby submitting that
because of in-action of the Police Authorities, she filed a complaint before
the Chief Judicial Magistrate, Udhampur and after hearing her counsel, the
complaint was forwarded to SHO Police Station Pancheri to proceed in
terms of section 156(3) Cr.P.C. Pursuant to which, FIR No. 38/2018 dated
16.08.2018 for commission of offences under sections 376 and 506 RPC
has been registered. It is also contended by respondent No. 2 that the date,
place and time of occurrence has been stated by the complainant before
the SHO during investigation of the case and absence of every minute
detail of the occurrence would not render the FIR illegal. Though the
respondent No. 2 has denied the contentions raised by the petitioner, but
she has stated that during the span of seven years, the petitioner had
committed rape upon her by making false promise with her.
7. Mr. Mazher Ali Khan, learned counsel for the petitioner has submitted that
the false and frivolous FIR had been lodged by respondent No. 2 just to
create hindrance in the solemnization marriage of the petitioner which was
fixed on 12.09.2018. He has further argued that even if, the allegations
leveled in the complaint and the FIR are taken to be true, no offence is
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made out against the petitioner, more particularly, when the respondent
No. 2 has herself admitted that she had remained in relation with the
petitioner for seven long years. In this context, he has relied upon the
judgment of the Hon‟ble Supreme Court of India in Sonu @ Subhash
Kumar v. State of Uttar Pradesh and another, AIR 2021 SC 1405 and
Prashant v State of NCT of Delhi, 2024INSC879.
8. On the contrary, Mr. Sumeet Bhatia, learned GA appearing for respondent
No. 1, has argued that the contentions raised by the petitioner in this
petition cannot be considered in this petition, as it amounts to the defence
of the petitioner, which the petitioner can raise during the course of the
trial.
9. Heard and perused the record including the Case Diary.
10. The record depicts that an application was submitted by respondent No. 2
before the Chief Judicial Magistrate, Udhampur on 14.08.2018 and the
same was forwarded by the court of Chief Judicial Magistrate, Udhampur
to SHO Police Station, Pacheri in terms of section 156(3) Cr.P.C. The
allegations leveled in the application (with errors) are extracted in
verbatim as under:
“2. That it is in the month of June 2011, when the
complainant was on her way from Hr. Sec. School Panchari
to her house, the non-applicant followed her and when he
found alone, he committed rape on her and afterward
threatened that if she ever disclose to anyone she will be
eliminated from this world. On second day he again followed
her and asked her to make relation with him. She denied and
when she raised hue and cry the non applicant wrapped her
mouth with her dupatta and again committed rape and when
she tried to call route passers, the non applicant in order to
shut her mouth made a fake promise that he will marry with
her and if she ever tried to disclose to any one at home or
5CRMC No.552/2018
police station the complainant will face consequences and
non-applicant will never asked her to marry.
3. That the non-applicant firstly committed rape with the
complainant and taking undue advantage of poor and
immature complainant, used to merely fulfil his lust and
desire and cheated her and kept her in darkness under false
assurance that he will marry with her, after taking to his
parents house.
5. That the non-applicant now pretends that the complainant
is a stranger for him and denying strongly that he will never
think about his marriage with such girls and if she ever tried
to come in his way, the non-applicant complainant will be
eliminated from the world and for this very reason,
threatened that her family will also be eliminated.”
11. A perusal of the allegations, as extracted above, reveals that the petitioner
established physical relation with respondent No. 2 in the month of June-
2011 when she was coming from Higher Secondary School, Pancheri to
her house. The petitioner repeated the same on the second day also and
when respondent No. 2 tried to call the passer-by, the petitioner, in order
to shut her mouth, made a false promise that he would marry her and if
she disclosed to anyone or Police, she would face consequences and
would not marry her. It is also alleged by respondent No. 2 that the
petitioner had been using her for the last six to seven years and cheating
her on the pretext of marriage. It needs to be noted that the first time when
the petitioner allegedly committed rape on her, it was the month of June-
2011 and thereafter, the petitioner and the respondent No. 2 maintained
relations with each other though the respondent No. 2 has stated in the FIR
that she was used for 6 to 7 years on the false pretext of marriage. She has
also mentioned in the FIR that the petitioner has now openly declared that
he would not solemnize marriage with respondent No. 2. The statement of
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CRMC No.552/2018
the victim/respondent No. 2 has been recorded under section 164-A
Cr.P.C.
12. The prosecutrix/respondent No. 2 in her statement has stated that the
petitioner committed rape upon her in the summers of 2011 when she was
coming from school to her house and repeated the same on the second day
also. The petitioner assured her that he would solemnize marriage with
her. She has further stated that when she asked the petitioner to send the
proposal of marriage to her parents, he refused. Thereafter, she went to the
Police Station, but nothing was done.
13. The date of birth of respondent No. 2 in the FIR has been mentioned as
20.03.1991, meaning thereby that she was more than 20 years of age in the
month of June, 2011. The FIR admittedly has been lodged seven years
after the first incident and during this span of seven years, respondent No.
2 never made any complaint in respect of conduct of the petitioner. Rather
she and the petitioner maintained their relationship during that period.
Through the respondent No. 2 alleged that the petitioner maintained
physical relationship with her on the false pretext of marriage but it is
evident that there was physical relationship between the petitioner and
respondent No. 2 for seven long years and as per the statement of
respondent No. 2, she lodged FIR only when the petitioner refused to
accede to the demand of respondent No. 2 to send proposal of his marriage
to her parents.
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CRMC No.552/2018
14. In almost similar facts and circumstances, the Hon‟ble Supreme Court of
India in Prashant v State of NCT of Delhi, 2024 INSC 879 quashed the
criminal proceedings by observing as under:
“17. In the present case, the issue that had to be addressed by
the High Court was whether, assuming all the allegations in
the FIR are correct as they stand, an offence punishable under
Sections 376 and 506 IPC were made out. A bare perusal of
the FIR reveals that the appellant and the complainant first
came in contact in the year 2017 and established a
relationship thereafter. The parties met multiple times at
various places during the years 2017 and 2019, including at
parks and their respective houses. Although the
complainant stated that the appellant had a forceful
sexual relationship with her, neither did she stop meeting
the appellant thereafter, nor did she file a criminal
complaint during the said period.
18. It is inconceivable that the complainant would
continue to meet the appellant or maintain a prolonged
association or physical relationship with him in the
absence of voluntary consent on her part. Moreover, it
would have been improbable for the appellant to ascertain the
complainant’s residential address, as mentioned in the FIR
unless such information had been voluntarily provided by the
complainant herself. It is also revealed that, at one point, both
parties had an intention to marry each other, though this plan
ultimately did not materialize. The appellant and the
complainant were in a consensual relationship. They are both
educated adults. The complainant, after filing the FIR against
the appellant, got married in the year 2020 to some other
person. Similarly, the appellant was also married in the year
2019. Possibly the marriage of the appellant in the year
2019 has led the complainant to file the FIR against him
as they were in a consensual relationship till then.”
(emphasis added)
14. Further in ‘Biswajyoti Chatterjee v. State of W.B., 2025 SCC OnLine
SC 741′, the Hon‟ble Supreme Court of India quashed the criminal
proceedings, with the following observations:
18. A careful reading of the evidence on record also clearly
shows that there is no evidence against the Appellant, to
conclude that there was any fraudulent or dishonest
8CRMC No.552/2018
inducement of the Complainant to constitute an offence under
Section 415 IPC. One may argue that the Appellant was in a
position of power to exert influence, however, there is
nothing on record to establish „inducement‟ or „enticement‟.
There is also no material on record, that there was any
threat of injury or reputation to the Complainant. A bare
allegation that the Appellant had threatened the
Complainant or her son cannot pass the muster of an
offence of criminal intimidation under Section 506 IPC.
20. We find that there is a growing tendency of resorting
to initiation of criminal proceedings when relationships
turn sour. Every consensual relationship, where a
possibility of marriage may exist, cannot be given a
colour of a false pretext to marry, in the event of a fall
out. It is such lis that amounts to an
abuse of process of law, and it is under such
circumstances, that we deem fit to terminate the
proceedings at the stage of charge itself.”
(emphasis added)
15. In its latest pronouncement, the Hon‟ble Supreme Court of India in case
titled ‘Jothiragawan v. State‘, 2025 SCC OnLine SC 6288, quashed the
criminal proceedings, by observing as under:
8. As per the complaint and the statement given by the
victim, the couple had sexual intercourse thrice. They first
met in a family function, where they both exchanged their
phone numbers. After a few days, the accused expressed his
desire to marry the victim, when the victim categorically told
him that she was studying and she would think it over, after
completing her studies. Thus, started a relationship which
resulted in frequent conversations and exchange of messages
over the mobile phone and intermittent visits by the accused,
to the house of the victim’s grandmother, where she was
residing; as stated by the complainant herself. On
17.04.2021, at the request of the accused, the victim
accompanied him to a movie after which, she felt dizzy
and they took a room in a hotel where according to the
victim, there was an ‘abrupt and unexpected’ sexual
intercourse, under coercion against her wish. Despite
protesting and crying out the accused continued the act,
after which she told him that he had ruined her life. It
was at this juncture, that a promise was made by the
accused, putting his hand on her head, that he would
marry her. From the statements recorded we do not find
any inducement by the accused, with a promise of
marriage, before the alleged crime, leading to the sexual
intercourse. The marriage proposal was not accepted by the
victim and there is not even a statement that she succumbed
to the sexual intercourse on such proposal; being made. It is
9CRMC No.552/2018
the definite case put forth by the victim that the accused had
acted unexpectedly and she was coerced into a sexual
intercourse despite her protests. The promise as stated, if at
all, was after the intercourse.
11. We have already found that there is no promise of
marriage to coerce consent from the victim for sexual
intercourse; as forthcoming from the statements made by
the victim. The promise if any was after the first physical
intercourse and even later the allegation was forceful
intercourse without any consent. In all the three instances
it was the allegation that, the intercourse was on threat
and coercion and there is no consent spoken of by the
victim, in which case there cannot be any inducement
found, on a promise held out. The allegation of forceful
intercourse on threat and coercion is also not believable,
given the relationship admitted between the parties and
the willing and repeated excursions to hotel rooms.
12. On a reading of the statements made by the victim before
the Police, both the First Information Statement and that
recorded later on, we are not convinced that the sexual
relationship admitted by both the parties was without the
consent of the victim. That they were closely related and
were in a relationship is admitted by the victim. The
allegation is also of threat and coercion against the victim,
to have sexual intercourse with the accused, which even as
per the victim’s statement was repeated thrice in the same
manner, when she willingly accompanied the accused to a
hotel room. The victim had also categorically stated that
after the first incident and the second incident she was
mentally upset, but that did not caution her from again
accompanying the accused to hotel rooms.
(emphasis added)
16. The Hon‟ble Apex Court in Sonu @ Subhash Kumar v State of Uttar
Pradesh and another, AIR 2021 SC 1405 has held as under:
“8. The contents of the FIR as well as the statement under
Section 164 of CrPC leave no manner of doubt that, on the
basis of the allegations as they stand, three important features
emerge:
(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 a half years; and
(iii) Subsequently, the appellant had expressed a
disinclination to marry the second respondent which led
to the registration of the FIR.
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CRMC No.552/2018
9. In Pramod Suryabhan Pawar (supra), while dealing
with a similar situation, the principles of law which must
govern a situation like the present were enunciated in the
following observations:
“Where the promise to marry is false and the intention of the
maker at the time of making the promise itself was not to
abide by it but to deceive the woman to convince her to
engage in sexual relations, there is a “misconception of fact”
that vitiates the woman’s “consent”. On the other hand, a
breach of a promise cannot be said to be a false promise.
To establish a false promise, the maker of the promise
should have had no intention of upholding his word at the
time of giving it…”
10. Further. the Court has observed:
“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 in bad faith marriage
must have been a false promise, given in bad 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.”
11. Bearing in mind the tests which have been
enunciated in the above decision, we are of the view that
even assuming that all the allegations in the FIR are correct
for the purposes of considering the application for quashing
under Section 482 of CrPC, no offence has been established.
There is no allegation to the effect that the promise to marry
given to the second respondent was false at the inception. On
the contrary, it would appear from the contents of the FIR
that there was a subsequent refusal on the part of the
appellant to marry the second respondent which gave rise to
the registration of the FIR. On these facts, we are of the view
that the High Court was in error in declining to entertain the
petition under Section 482 of CrPC on the basis that it was
only the evidence at trial which would lead to a determination
as to whether an offence was established.”
17. In view of the allegations levelled in the FIR impugned as well as in the
statement made by the prosecutrix under section 164-A Cr.P.C, the
following admitted facts emerge:
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(i) that the petitioner and respondent No. 2 were major in the year,
2011.
(ii) that they maintained their relations for six to seven long years.
(iii) that the FIR was lodged only after the petitioner did not
accede to the demand made by respondent No. 2 to send a proposal
of his marriage to her parents and prior to that, no complaint was
ever made by the respondent No. 2.
18. For all what has been said, discussed and analyzed hereinabove, no
offence is made out against the petitioner, as it is evident that the
respondent No.2 remained in relationship with the petitioner for six-seven
long years and lodged FIR only, when the petitioner did not accede to the
demand of the respondent No.3 to send marriage proposal to her parents.
The present petition is allowed. Accordingly, FIR impugned bearing No.
38/2018 dated 16.08.2018 for commission of offences under sections 376
and 506 RPC registered with Police Station, Panchari, District Udhampur
is quashed.
19. The CD file be returned to Mr. Sumeet Bhatia, GA.
(RAJNESH OSWAL)
JUDGE
Jammu:
02.05.2025
Rakesh PS
Whether the order is speaking: Yes
Whether the order is reportable: YesKARAM CHAND
2025.05.03 09:45
I attest to the accuracy and
integrity of this document
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