Delhi High Court refuses to quash S. 376 IPC FIR based on conduct of parties, misguided facts and misinformed religious conversion

delhi high court

Delhi High Court: A petition was filed by the accused under Article 226 and 227 read with Section 482 of Criminal Procedure Code (CrPC) for quashing of FIR registered at Police Station for offence under Sections 376 and 506 of Penal Code, 1860, centers on the conflicting stories presented by the accused and prosecutrix, while the prosecutrix alleging forced sexual assault and the conflicting stand of the petitioner that it was a consensual live-in sexual relationship. Swarana Kanta Sharma, J., dismissed the petition refusing to quash the FIR highlighting inconsistencies, misconduct, and suspicions on both sides, leading to unresolved questions about the validity of the marriage and the overall credibility of the parties involved.

According to the prosecutrix, she alleged forced sexual assault, describing a scenario where the accused visited her house, requested food, and allegedly laced a cold drink with sedatives. She claimed that she was raped while unconscious and discovered the incident when she regained consciousness. The accused asserted that the accused threatened her to keep silent about the incident. On the other hand, the accused provided a different narrative during bail proceedings. He claimed to have been in a live-in relationship with the prosecutrix since 2007, with a compromise deed executed in 2012. According to the accused, they resumed living together as husband and wife six months later. He suggested that the prosecutrix registered the FIR due to differences between them. Additionally, the accused informed the court that he married the prosecutrix on 28-10-2022 after 10-days following the registration of the present FIR, as per Muslim customs and rights, after the conversion of the prosecutrix to Muslim religion.

The issue under consideration is whether in the peculiar facts and circumstances of the case, where the accused and the prosecutrix have compromised the matter and have married each other, the petition for quashing FIR registered under Section 376 of IPC deserves succeeding in light of the conduct of the parties?

The Court noted that the questions asked to the prosecutrix about her favorite fruit and color seem irrelevant and possibly inappropriate given the seriousness of the matter at hand. Moreover, it is noted that despite the Magistrate’s assertion that these questions were intended to assess the prosecutrix’s competency to depose in a vernacular language, both the questions and answers were in English. This inconsistency raises questions about the actual purpose of such questions and whether they served the intended function of checking the prosecutrix’s competency in expressing herself in a vernacular language. The use of a typed performa in English for these questions may further add to the confusion. Thus, the court or concerned authorities may scrutinize the way the prosecutrix’s statement was recorded to ensure it was conducted in a proper and relevant manner, adhering to legal procedures and principles. The use of irrelevant questions or language inconsistencies could potentially impact the credibility and reliability of the statement in legal proceedings.

The Court further noted that recording of statement under Section 164 Cr.P.C. in a case of sexual assault is a critical responsibility of a magistrate as the statements so recorded also becomes part of edifice of building of a case. The Court directed guidelines apropos recording of statement under Section 164 of CrPC of sexual assault victims as under

  • Avoid Mechanical Recording: Statements should not be recorded mechanically or in a typed performa.

  • Victim Production and Identification: The victim should be produced by the investigating officer before the Magistrate, who will then identify the victim. The investigating officer must sign a record indicating the identification and then leave the chamber/room where the statement will be recorded.

  • Preliminary Inquiries: The Magistrate must interact with the victim to make preliminary inquiries, using age-appropriate and educationally appropriate questions to assess the victim’s competence to depose and provide rational answers.

  • State of Mind Reflection: Questions should reflect the victim’s state of mind, understanding of surroundings, the purpose of the statement, and the awareness of making the statement voluntarily.

  • Avoid Typed Stereotyped Performas: Statements and preliminary inquiries should not be in vernacular and should not be typed stereotyped performas, as cases and victims may vary.

  • Handling Child Victims: In the case of child victims, the Magistrate must ensure the child understands the sanctity of oath and may dispense with administering the oath in case of tender age.

  • Verbatim Recording: The words and language used by the victim must be written verbatim, including a detailed description of the act of sexual assault.

  • Framing Questions According to Each Case: Questions must be framed according to each case and the victim’s circumstances.

  • Magistrate’s Certificate: The Magistrate must append a certificate to the statement, confirming its voluntary nature, correctness, and that nothing has been added or subtracted. This certificate must also mention that the statement was read over and explained to the victim, who then signed it.

  • Signatures or Thumb Impressions: Signatures or thumb impressions must be taken inside the chamber/room in the presence of the Magistrate.

  • Typed Statements: If the statement is typed by a stenographer or an interpreter, it should be noted as an exception, and the statement should mention that it was typed at the dictation of the Magistrate and is the true content of the victim’s statement.

The Court requested the Director (Academics), Delhi Judicial Academy, to conduct a workshop for the learned Magistrates regarding the importance and procedure to be followed while recording statements under Section 164 of CrPC of sexual assault victims.

The Court further pointed out a judicial error made by the Sessions Court while adjudicating the interim bail application of the accused in the context of certain inaccuracies in mentioning facts of the case. The Sessions Court mentioned certain facts of the case incorrectly, according to the accused, the prosecutrix was a widow and the accused was a long-time friend of her deceased husband. This was in direct contrast to the version given by the prosecutrix in the FIR, where she stated that she was a divorcee. The Sessions Court failed to take note of the fact that the first husband of the prosecutrix was alive. An agreement dated 18-04-2012, filed by the accused along with his interim bail application, indicated that the prosecutrix and the accused had lived together for a long period after getting married. The agreement also mentioned that the prosecutrix’s first husband was alive and working in Delhi, willing to take care of her and the children. Thus, if the correct facts had been noted, it would have revealed the genuineness of the marriage on which interim bail was granted. The court might have found that the parties could not have been validly married. Furthermore, it would have been revealed that there was no document of divorce for the prosecutrix on record.

The Court issued guidelines regarding crucial aspects to be followed in cases of religious conversions solely to solemnize inter-faith marriages aiming to address various aspects, including legal, religious, and marital consequences, to ensure that individuals undergoing religious conversion for the purpose of inter-faith marriage are well-informed and make decisions with a clear understanding of the implications involved.

  • Informed Consent and Understanding:

    • Emphasis on ensuring informed consent and comprehensive understanding during the conversion process.

    • Communication should be linguistically understood, ensuring a voluntary and clear decision.

  • Legal Implications of Conversion:

    • Individuals must be fully informed of legal consequences associated with conversion.

    • Explanation of alterations in inheritance rights, succession, maintenance, custody, and divorce laws.

  • Religious Repercussions:

    • Exploration of religious norms, obligations, and restrictions post-conversion.

    • Clarification of whether certain religious practices will be allowed or prohibited.

  • Marital Consequences:

    • Communication should extend to the marital domain, covering the mode of marriage and potential modes of dissolution.

    • Explanation of rites, rituals, obligations, and personal law rights in the context of marriage after conversion.

  • Identity Verification:

    • Meticulous verification of the identity of prospective spouses to ensure transparency and authenticity.

  • Affidavit for Marital History:

    • An affidavit detailing the past marital history of individuals entering the marital bond to promote transparency and trust.

  • Scope for Reverting Back to Original Religion:

    • Informing the prospective convert about the right to revert to their original religion and the consequences of such a decision.

The Court further issued guidelines aimed to address the real-life situations that may not have clear answers in existing legal frameworks as under:

  • Affidavits to be Obtained:

    • Affidavits regarding the age, marital history, marital status, and evidence thereof of both parties must be obtained.

    • An affidavit stating that the conversion is voluntary and undertaken after understanding the implications and consequences related to marital matters, divorce, succession, custody, and religious rights.

  • Certificate Appended to Conversion Certificate:

    • A certificate must be appended to the conversion certificate, explicitly stating that the convert has been explained the tenets, rituals, expectations inherent in religious conversion, as well as the implications and consequences related to marital matters, divorce, succession, custody, and religious rights.

  • Language Requirements:

    • The certificate of conversion and marriage should be in additional vernacular language understood by the prospective convert.

    • The additional language should be in Hindi if the prospective convert understands Hindi, in addition to any other language preferred by the authority. If the language spoken and understood by the prospective convert is other than Hindi, that language can be used.

  • Exclusion for Reconversion:

    • These guidelines will not be applicable to individuals converting back to their original religion, as they are already well-versed with their original religion.

The Court, after scrutinizing serious allegations, misconduct, and questionable conduct on both sides, expressed doubt about the validity of the marriage and questioned the bona fides of the accused. It emphasized that quashing, especially in cases of serious nature, cannot be a standard practice and underscores the need for well-informed decisions in such complex situations. Thus, the Court dismissed the petition and held that “it is not the continuity of the proceedings which will be abuse of process of law in this case, but bringing to halt or quashing of the proceedings which will be equivalent to permitting abuse of process of law by both the parties herein. Thus, in view of the above facts and circumstances, this Court does not find it a fit case to quash the FIR.”

[Maksood Ahmad v State of NCT of Delhi, 2024 SCC OnLine Del 418, decided on 19-01-2024]

Advocates who appeared in this case:

Mr. Shyam Kumar, Advocate alongwith Petitioner

Mr. Sanjeev Bhandari, ASC for the State along with Mr. Kunal Mittal, Mr. Arjit Sharma and Ms. Rishika, Advocates and with SI Manju and SI Neelam, P.S. GTB Enclave alongwith prosecutrix / Respondent no. 2

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