Yash Sharma (md) 24 October 2012

Can 164 crpc by complainant be withdrawn in 376ipc?

My friend is facing this major problem and is struggling, after a prolonged battle (accussed used all political clout to shut her up) she was successful in registering 376 IPC (Consent given under promise to marry) however due to the slow process for the police to prepare for inter state arrest & general laziness, she once again got in touch with accussed who then agreed to reconcile with her and marry her. He also spoke to the SI and she recorded this where he is saying he wil marry her. Based on this promise she was asked by the police to give 164 crpc statement in court to avoid arrest and told her she can always reopen the case if he does not marry her so she told the court she wants to withdraw the case since he has agreed to marry her & they reconciled. Now after almost 1 year the man once again is cheating her & refuses to marry her. Now she wants to reopen the case against him as he has again cheated her but the police are saying that the case cannot be reopened since court has closed it.

Now we are confused what to do since now she has been cheated twice and even police is not co-operating (we suspect it may be the accussed's influence since they are new police member not old ones who were handling the case before).

Any suggestions please? Is it really not possible for the case to reopen, her 164 statement said she was withdrawing only because he will marry her but he is not now.

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5 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 24 October 2012

Dear Mr.Sharma,

Let me set things right :-

1. A rape case cannot be withdrawn merely by a 164 statement.

2. It has to be quashed by the High Court on the basis of settlement under section 482 of the crpc. (It is no more being done now after latest Supreme Court ruling).

3. If the guy has went back on his promise the girl can move an application u/s 482 crpc before the high court and the high court can order reopening of case. There was a dowry case where man agreed to divorce wife and wife's cases were quashed when the guy went back on his word. The Court re-opened all the cases against the husband.

Good Luck !

Bharat Chugh

Advocate Supreme Court of India/Delhi High Court

my blog : www.advocatebharatchugh.wordpress.com

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Yash Sharma (md) 24 October 2012

Thank you so much Mr.Bharat, even we thought that 376 cannot be withdrawn only quashed but the police somehow managed to confuse us. Now they are telling her they cannot open the case as the magistrate withdrew it. After insisting with them, they say let's go meet the PP and ask him. The police do not seem to be interested in pursuing the case and are trying to find reasons to avoid this further and also because the accussed resides in another state they are giving excuses and saying they'll see if it will be transferred to that place which makes no sense since it happened in our city and we will be inconvinienced not the accussed if file is transferred there. We feel that the accussed side has approached them to ensure this case is not proceeding, they have done this before so we are getting tired of this.

Also this is not only 376 but also DV & dowry prohibition act because the marriage was fixed and called off over dowry.

Yash Sharma (md) 24 October 2012

Mr.Bharat could you guide to the supreme court ruling you have mentioned please. Thanks.

EDIT: Found it: https://www.snehamumbai.org/portal/NewsArticleView.aspx?NewsArticleId=57&NewsType=0

surjit singh (Assistant) 25 October 2012

Please see section 320 of CrPC offence under 376 is not compoundable

Yash Sharma (md) 30 October 2012

Thanks but the police are refusing to do anything and say that the 164 statement led to the magistrate closing the case, how is it possible when it is non compoundable? Would the other cases like DV & Dowry Prohibition act be closed alone & 376 can be reopened by 482 or will all be reopened?