[Bhushan Kumar rape case] FIR cannot be quashed merely because rape survivor consents: Bombay High Court

Merely because a rape survivor agrees to quashing of the case, a first information report (FIR) for rape under Section 376 of the Indian Penal Code cannot be quashed, the Bombay High Court observed while expressing its disinclination to quash the rape case FIR against T-series owner Bhushan Kumar..A division bench of Justices AS Gadkari and PD Naik observed that merely because the aggrieved was granting her consent to quash, would not be sufficient ground to quash the FIR.“Merely because parties are consenting does not mean FIR under section 376 (rape) of the Indian Penal Code should be quashed. We have to see the contents of the FIR, the statements recorded to see if the crime was heinous or not. The relationship (in this case) from the contents does not seem consensual,” the Court noted..Advocate Niranjan Mundargi, appearing for Kumar, submitted that the FIR was registered in July 2021 for an incident that was allegedly happening since 2017. He apprised the court that a closure report had been filed before the concerned Magistrate. A local politician Mallikarjun Pujari filed a protest petition against the closure report, claiming he had helped the woman register the FIR but she the backtracked and granted her consent to close the proceedings. The Magistrate then proceeded to reject the closure report in April 2022.Kumar then moved the High Court..The Bench examined the FIR, the consent affidavit of the aggrieved woman and the detailed order of the Magistrate. It noted that while refusing the closure report, the Magistrate had opined that the woman had first set the criminal law in motion and thereafter accepting the closure report furnished an assurance that she had misused the provisions for personal gain and advantage.The High Court also noted that the Magistrate had not recorded the statement of the victim under Section 164 of the Criminal Procedure Code..The division bench concluded that the material did not reflect that the relationship between the accused and aggrieved was consensual. “Contents of (consent) affidavit is not sufficient to quash FIR. Generally under section 376, FIR can be quashed with consent of complainant. But then that is after the FIR or the affidavit shows that there is a consensual relationship. Here the complainant is only saying she doesn’t want to proceed with the case due to ‘circumstantial misunderstanding’,” the bench noted. .The Court also noted that the investigation report submitted by the police had factual discrepancies. In light of this, the Court expressed its disinclination to quash the FIR.Advocate Mundargi requested the judge to consider the contents again, but the bench firmly insisted that Mundargi back his arguments with any precedent of Supreme Court permitting quashing of section 376 FIR merely because the complainant grants consent..As a matter of last chance, the Court adjourned the matter to be considered on July 2.