The Bombay High Court has quashed an FIR against a constable, alleging rape and causing miscarriage without consent, registered by a colleague following a settlement between the two. The court has however imposed a cost of ₹25,000 on the woman constable since she later admitted that she had voluntarily terminated her pregnancy.
A division bench of Justices Anuja Prabhudessai and NR Borkar observed that the allegations in the FIR, even if accepted in their entirety, reveal that the physical relationship between the two was consensual, during the subsistence of the woman’s marriage. The court also noted that the records indicated that she consented to the termination of both the pregnancies. She consented to quashing the FIR saying that she had married and had a child.
“Hence, the consent is not vitiated due to misconception of fact. Suffice it to say that consensual physical relationship between two adults does not constitutes rape,” the bench said.
The HC was hearing a petition filed by the constable, his four family members and the doctor, who carried out the abortion, seeking quashing of the FIR against them.
'Physical relations under pretext of marriage'
In 2017, the woman, who at the time was amidst ongoing divorce proceedings, filed an FIR alleging that the constable promised to marry her post her divorce and engaged in physical relations under the guise of marriage. This continued even after her divorce. Ultimately, he refused to marry her. The woman also alleged that the constable’s four family members forcibly took her to medical facilities twice and pressured her to terminate her pregnancy.
The court noted that proceedings involving serious or heinous offences, or offences against society, merely on the basis of the settlement between the parties. “Yet the Court cannot and should not hesitate to exercise such powers when uncontroverted allegations in the FIR and the other material collected in the course of the investigation does not disclose cognizable offence, notwithstanding the sections mentioned in the FIR or in the charge,” the bench observed.
Facts narrated in the FIR do not disclose serious offence: Court
The bench emphasised that “the facts narrated in the FIR as well as other material on record even if accepted in totality, do not disclose any offence of serious and heinous nature”.
“The Respondent No.2 (woman) has also stated in her affidavit that she is now married, with a child and that she wants to proceed with her matrimonial life, leaving the past behind. In such circumstances, continuance of criminal prosecution is likely to jeopardise her family life,” the bench underlined.
