MOHAMMED NAYEEM v. THE STATE OF KARNATAKA

Heard Sri.B.Lethif, learned counsel for petitioners, Sri.P.Thejesh, learned High Court Government Pleader for respondent No.1 and Sri. Abdul Ansar, learned counsel for respondent No.2.

Brief facts, germane, are as follows: A complaint comes to be registered by the complainant one K. Vijaykumar, alleging that his daughter, who is aged 17 years, did not return home on the night of 07.08.2020. When the complainant and his wife tried to call the victim girl, there was no response and though the call was attended, the girl did not speak anything. The complainant enquired his friends and relatives regarding his daughter, who had not returned back. It transpires that they received an information that the daughter – victim was near Beeremele Gudde. When the complainant reached the spot, he found that his daughter was sitting inside a car bearing No.KL 57 P 4414, along with three persons. When he spoke to his daughter, he came to know that his daughter had acquaintance of the person sitting in the car. The victim then informed the complainant that when she left home - 4 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 on 07.08.2020 to purchase daily ingredients at Empire Mahal, she met the person and was forcefully taken by those persons. Therefore, a complaint comes to be registered in Crime No.16/2020, for the aforesaid offences. The police after investigation have filed a charge sheet before the concerned Court.

Learned counsel for petitioners and respondent No.2 would in unison submit that during the pendency of the petition, the parties to the lis have compromised the issue by the intervention of the family members and well-wishers as the both families live in the same locality. Therefore, they have filed an application under Section 482 of the Cr.P.C., along with the affidavits of the parties, seeking permission of this Court to compound the offences.

The learned High Court Government Pleader would vehemently oppose for closure of the proceedings on the score that the offence alleged against the petitioner is under Section 12 of the Prevention of Children from Sexual Offences Act, 2012 and therefore, trial should be permitted to continue and - 5 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 the petitioners have to come out clean. Permission for compounding the offences if granted, it would leave a serious impact on the Society.

Before going to the merits of the case or accept the application seeking compounding of the offences, it is apposite to refer to various judgments in respect of compounding or otherwise. In Crl.P.No.136/2020 (supra), the Co-ordinate Bench of this Court has held as follows and quashed the proceedings: “2. Sri Vijaya Kumar S/o Sri Siddagangaiah @ Mariyappa and Smt. Nayana W/o Vijaya Kumar are present before the Court. Today they have filed a joint affidavit of both petitioner-accused and respondent No.2- complainant. In the joint affidavit it is submitted that they have amicably settled the matter out of the Court. take back The petitioner-accused has agreed respondent No.2 as his wife and they are ready to reunion and live together by dissolving their disputes. Even both the parents have agreed to take them back. It is further submitted that as per the school records the date of birth of respondent No.2 is 6.2.2001 and she has attained the age of majority and she is competent to enter into compromise. They have also further submitted that the said compromise is without there being any threat, force, coercion, fraud or misrepresentation. The said joint affidavit has been signed by the petitioner-accused and respondent No.2- complainant and same has been endorsed by the learned counsel appearing for the parties. - 6 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024

3. When the Court asked a question to both the parties, they submitted that since earlier they used to like each other and now they intended to jointly live together as husband and wife. At this juncture, it is worth to mention here itself a decision of the Hon’ble Apex Court in the case of J.Ramesh Kamath and Others Vs. Mohana Kurupt and Others, reported in (2016) 12 SCC 179, wherein the Hon’ble Apex Court has laid down certain principles as to under what circumstances the Court can quash the proceedings or compound the offences even in respect of a non-compoundable offences, wherein it has been held as under:-

Held, power vested in High Court under S.482 is not limited to quashing proceedings within ambit and scope of S.320 of Cr.P.C., - In Gian Singh, (2012) 10 SCC 303, it was clearly expounded that quashing of criminal proceedings under S.482 of Cr.P.C., could also be based on settlements between private parties, and could also be on a compromise between the offender and victim – Only that, the above power did not extend to crimes against the society – Further, jurisdiction vested in High Court under S.482 Cr.P.C., criminal proceedings was held to be exercisable in criminal cases having an overwhelming and predominatingly flavour, particular offences arising commercial, financial, mercantile, civil, partnership, or such like transactions, or even offences arising out of matrimony relating to dowry, etc., or family disputes where wrong is basically private or personal. In all such cases, parties should have resolved their entire dispute by themselves, mutually.

for quashing

4. The Hon’ble Apex Court has reiterated the principles of law laid down in the case of Gian Singh Vs. State of Punjab and another reported in (2012) 10 SCC 303, wherein it has been observed that the Court can exercise the power under Section 482 of Cr.P.C. depending upon the facts and circumstances of each case and compound the offence. In the case of Narinder - 7 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 Singh and others Vs. State of Punjab and another reported in (2014) 6 SCC 466, it has been observed as under: offences “8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the roceedings uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence. However, compounding under Section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of permissible but it requires the approval of the Court. Insofar as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of these powers were described by this Court in B.S.Joshi v. State of Haryana which has been followed and further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter. the Code, compounding

At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to the Court under Section 320 of the Code and quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction conferred upon it under Section 482 of the Code. Once it is found that compounding is permissible only if a particular offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided solitarily and squarely by the compromise between the parties, insofar as power of quashing under Section 482of the Code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of - 8 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 indictment. Such a distinction is lucidly explained by a three-Judge Bench of this Court in Gian Singh v. State of Punjab. Lodha, J. speaking for the Court, explained the difference between the two provisions in the following manner: (SCC pp.340-41, paras 57 & 59). “57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. Court powers

B.S.Joshi, Nikhil Merchant, Manoj Sharma illustrate the principle that the and Shiji do High criminal in exercise proceedings or FIR or complaint inherent power under Section 482 of the Code and Section 320 does not limit or affect Court High it be said that by under Section 482. Can quashing criminal Sharma B.S.Joshi, Nikhil Merchant, Manoj and Shiji indirectly? We non-compoundable do not distinction offence under Section 320 and quashing of a the High Court power under Section exercise 482. ultimate different viz. consequence may this Court has offences inherent criminal so. There does compounding compounded proceedings although between distinct powers The - 9 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 acquittal indictment.” accused or dismissal

Apart from narrating the interplay of Section 320 and Section 482 of the Code in the manner aforesaid, the Court in Gian Singh case also described the extent of power under Section 482 of the Code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. In the first instance it was emphasized that the power under Section 482 of the Code is not to be resorted to, if there is specific provision in the Code for redressal of the grievance of an aggrieved party. It should be exercised very sparingly and should not be exercised as against the express bar of law engrafted in any other provision of the Code. The Court also highlighted that in different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non.

As to under what circumstances the criminal proceedings in a non- compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines: (Gian pp.340-41. para 58) Singh case, SCC the offender and settled

58. Where the High Court quashes a criminal proceeding having regard the dispute between victim it does so offences are not compoundable, criminal futility proceedings will be an exercise justice to an dispute between end and peace the case demands continuation of its opinion, the parties restored; although securing is put - 10 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 In court. dispute statutes, amicably settlement like murder, justice being crimes is not safe to harmful law, with or without respect servants while working crimes effect wrongdoing threatens between the victim can have no all. However, the ultimate guiding ends of acts which factor. No doubt, public seriously consist the well-being of endangers and the society and leave the crime-doer only because he and the victim have settled the victim has been paid compensation, yet certain compoundable permission serious offences rape, dacoity, etc. or other offences of mental depravity IPC or offences of moral turpitude the Prevention special the offences committed of Corruption Act or by public capacity, offender and sanction offences predominantly flavour having arisen out of civil, bear civil financial, mercantile, partnership or such matrimony, offences particularly family basically to the victim and the offender and disputes between fact that such offences have not been made the High Court may within compoundable, inherent power, quash criminal proceeding complaint or FIR if it is satisfied that on the is hardly any face of such settlement, there convicted likelihood criminal proceedings, The illustrative and not exhaustive. Each case will depend on its own facts and to dowry, etc. or casualty defeated. commercial, them amicably, irrespective of framework of criminal offender quashing arising relating justice justice transactions or overwhelmingly shall be dispute, certain settled victim - 11 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 hard-and-fast prescribed.

category

Thereafter, the Court summed up position in the following words: (Gian Singh case, SCC pp.342-43, para 61) “61. The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guidelines engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute, would depend on the facts and circumstances of each case and no category can be prescribed.

5. Even in the case of Srinivasan Iyenger v. Bimla Devi Agarwal reported in (2019) 4 SCC 456 at paragraph Nos.8 to 14 it has been observed as under: “8. During the hearing of these appeals, the learned counsel for the appellants agreed to pay to the original - 13 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 complainant a total sum of Rs 10,00,000 (Rupees Ten lakh only) towards the full and final settlement of the claim of the original complainant and it is agreed that, on such payment, the claimant will not proceed with the complaint any further and that the parties may be permitted to compound the offences. learned

9. The counsel appearing on behalf of the original complainant has stated that the original complainant is agreeable to accept a total sum of Rs 10,00,000 offered and that, on such payment, the complainant has no objection if the offences against the appellants are compounded and the criminal proceedings initiated against them are quashed.

10. The learned counsel appearing on behalf of the original complainant has submitted that the appellants may deposit a total sum of Rs 10,00,000 in the bank account of the original complainant, the particulars of which are already on record, and on doing so, the appellants may be permitted to withdraw the amount of Rs 3,75,000 plus interest if any, already deposited by them.

11. Having heard the learned counsel appearing on behalf of the respective parties and that now the parties have settled the dispute amicably and that the dispute between the parties seems to be having predominant element of a civil dispute and the origin is predominantly or overwhelmingly a civil dispute, we are of the opinion that this is a fit case to exercise the power under Article 142 of the Constitution of India to meet the ends of justice.

12. We are of the opinion that on payment of total sum of Rs.10,00,000 by the appellants to the original complainant, as agreed between the parties, the criminal proceedings be quashed, considering the decisions of this Court in Parbatbhai Aahir v. State of Gujarat [Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641 : (2018) 1 SCC (Cri) 1] and Gian Singh v. State of Punjab [Gian Singh v. State of Punjab, (2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] . - 14 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 In parties predominantly the parties 13. reasons stated above, we allow compound the offences, even though the offences the dispute alleged are non-compoundable, as between overwhelmingly seems to be of a civil nature and that the dispute is a private one and between the two private parties. Accordingly, is ordered that on payment of a sum of Rs 10,00,000 by the to be appellants the original deposited complainant within a period of criminal proceedings being CR Case No. 40-C of learned CJM, in the Court of the 2014 pending Tinsukia, stand quashed. On furnishing proof of deposit of Rs 10,00,000, the Registry to return the amount of Rs 3,75,000 along with interest, if any, appellants have deposited pursuant to the earlier order of this Court. the bank account of herein, which the original two weeks, complainant appellants The

present accordingly in terms of the above.” appeals disposed

6. Bearing in mind the above facts and circumstances and on perusal of the charge sheet material, though the offences leveled against the petitioner-accused are punishable under Sections 366A, 376 of IPC r/w Sections 4 and 6 of POCSO Act and Sections 9 and 11 of Prohibition of Child Marriage Restraint Act, the said offences are non- compoundable in nature. But as could be seen from the records, the parties have compromised the matter amicably and the respondent-complainant has already attained the age of majority and she submits that now they are leading the matrimonial life and the petitioner-accused has accepted respondent No.2 – victim as his wife. When a family is going to be settled, it will be a boon to the society. Therefore, in my opinion if the said - 15 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 compromise is allowed by keeping in view the above said decision endorsed, the parties can lead a cordial life hereinafter. take an appropriate decision

Be that as it may. Even if the trial is held, the complainant herself has filed a joint memo for having amicably settled the dispute and she will not support the case of the prosecution and the trial held will be nothing but a futile exercise and waste of judicial time. The alleged offences are not punishable with death or imprisonment for life and the complainant and the accused are intending to join their hands and compound the offence and no bodily injury has also been caused to the victim. In the case of Gian singh (quoted supra), it has been observed that the High Court is having power under Section 482 of Cr.P.C. to weigh the material on record and accordance with law. Even subsequently also Hon’ble Apex Court while considering the Child Marriage Act has decided the same view depending upon the facts and circumstances of each case. into amicable When the parties have entered settlement compromised, then under such circumstances, I am of the considered opinion that accepted and the two families are going to be settled happily, the said settlement can be accepted. If the said settlement is not accepted, it is going to create a big gap between them. Their thoughts and ideas may be changed. Respondent No.2 will become destitute and it will be burden to the family to settle her life. By the time of settlement all the problems are going to be resolved. if the compromise

Taking into consideration the above said facts and circumstance of the case, I am of the considered - 16 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 opinion that it is a fit case to exercise the power under Section 482 of Cr.P.C. and permit the parties to settle their disputes amicably as entered into. " (Emphasis supplied) In Crl.P.No.5922/2019 the Co-ordinate Bench of this Court holds as follows: "This petition filed challenging the criminal proceedings in SC No.94/2018 initiated for offences punishable under Sections 376, 323, 506 r/w Section 34 of IPC. Second respondent-complainant registered FIR No.7/2018 in Bangarpet Police Station, KGF District, on 05.01.2018 alleging that first petitioner had married her on 04.01.2018 and that his relatives took away her husband on the following day from railway station. Accordingly, she alleged commission of aforementioned offences against four accused. Accused No.4 Pillappa passed away whilst investigation was in progress. After investigation, police have filed charge sheet.

2. During the course of hearing today, learned advocates for the petitioners and second respondent jointly submitted that parties have reconciled matrimonial dispute and living happily. The couple have also been blessed with a male child. In the circumstances, they prayed that criminal proceedings against the petitioners be quashed.

3. Learned HCGP submitted that in view of the fact that prosecutrix herself has come forward before this Court with a prayer to quash the proceedings, this Court may consider the prayer.

4. I have carefully considered rival submissions and perused the records.

5. The complaint dated 05.01.2018 in substance shows that first petitioner and second respondent were married in Ganapathi Temple near Ramamandir. They stayed in the house of one Shri Sathish on that night. - 17 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 On the following day, first petitioner, his wife and her parents had purchased tickets to travel to Kakinada in Andhra Pradesh. In the railway station, accused Nos. 2 and 3 forcibly took away first petitioner and also assaulted second respondent’s parents. Accordingly, FIR has been registered.

6. The joint affidavit of first petitioner and second respondent reads as follows: JOINT AFFIDAVIT TALUK, KOLAR DISTRICT “We, GOWARDAN, S/O LATE SUBRAMANI, AGED ABOUT 25 YEARS, R/AT KARAHALLI VILLAGE, BANGARPET PARTHIBAN, S/O SARAVANAN K.V, AGED ABOUT 19 YEARS R/AT KARAHALLI VILLAGE, BANGARPET TALUK, KOLAR DISTRICT and UDAYAKUMAR, S/O MUNIRAJAPPA, AGED ABOUT 30 YEARS, R/AT KARAHALLI VILLAGE, BANGARPET TALUK, KOLAR DISTRICT and AISHWARYA. N, W/O GOWARDAN, AGED ABOUT 20 YEARS, R/AT KARAHALLI VILLAGE, BANGARPET TALUK, KOLAR DISTRICT. Today at Bengaluru do hereby state on solemn affirmation as follows.

We are the petitioners No.1 to 3 and respondents No.2 in the above petition, we are acquitted (sic acquainted) with the facts of the case and hence we are competent to swear to this affidavit.

2. We state that at the intervention of the elders and well wishers and petitioners and respondents have resolved their dispute amicably and reached to a settlement, out of court, which is culminated in this joint affidavit. family members,

3. That the petitioner No.1 and respondent No.2 are married on 04/01/2018, out of their wedlock one mail (sic male) child was born namely Niharika, and happy married life till today, therefore, I have no objection to quash the charge sheet.

4. The parties have entered in to this joint affidavit on their own volition without any influence or coercion and after understanding the contents of the joint affidavit. - 18 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 Wherefore, the parties herein respectfully pray that this Hon’ble court may kindly be pleased to quash the charge sheet in the learned II Addl. District and sessions judge Kolar, in SC.No.94/2018 for the offences punishable under section 376, 323, 506 r/w 34 IPC and 4, 8 POSCO Act 2012 in the interest of justice and equity.”

7. The parents of second respondent have also filed a joint affidavit which reads as follows: JOINT AFFIDAVIT “We, Narendra Babu N, S/o late Natesh, aged about 67 years, R/at. Karahalli village, Bangarpet Taluk, Kolar District and Suryakumari W/o NarendraBabu N, years, R/at. Karahalli village, Bangarpet Taluk, Kolar District today at Bangalore. Do hereby state on solemnly affirmation as follows. 45 the parents of respondent 1. We are No.2/Aishwarya N, we are the acquitted (sic acquainted) with the facts of the case. And hence we are competent to swear to this affidavit.

2. We state that at the intervention of the elders The and well-wishers and petitioners and respondents have resolved their dispute amicably and reached to a settlement, out of court, which is culminated in this joint affidavit. family members.

3. that the petitioner No.1 is my son-in-law and respondent No.2 is my daughter are married on 04/01/2018, out of their wedlock one mail (sic male) child was born namely Niharika and happy married life till today, therefore I have no objection to quash the charge sheet.

4. The parties have entered in to this joint affidavit on their own volition without any influence or coercion and after understanding the contents of the joint affidavit. - 19 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 Wherefore, the parents herein respectfully pray that this Hon’ble court may kindly be pleased to quash the charge sheet in the learned II Addl. District and sessions judge Kolar, in SC.No.94/2018 for the offences punishable under section 376, 323, 506 r/w 34 IPC and 4, 8 POSCO Act 2012 in the interest of justice and equity.” the matrimonial dispute amicably.

8. Though aforesaid offences have been alleged against petitioners, the subsequent developments recorded in the affidavits show that parties have resolved Petitioners, second respondent and her parents are present before the Court. They are identified by their respective advocates. The conspectus of facts of this case shows that complaint has emanated out of initial disagreement with regard to marriage. Suffice to state that parties have admitted the marriage of first petitioner and second respondent and stated in the affidavit that they are happily living with the child. More so, complainant, her parents and first petitioner have resolved the differences amicably. In the circumstances, no useful purpose would be served in continuing the criminal proceedings.

9. Accordingly, all proceedings in SC.No.94/2018 pending on the file of II Additional District & Sessions Judge, Kolar, are quashed. The petition stands disposed of. " (Emphasis supplied) In Crl.P.No.3162/2018 the Co-ordinate Bench of this Court, holds as follows: "The petitioner has approached this court seeking quashing of the Special CC No.194/2015 on the file of the II Addl. District and Sessions Judge, Bengaluru - 20 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 Rural District, registered against the petitioner for the offence punishable under Section 376 of IPC and also u/s.6, 8, 10 & 12 of Protection of Children from Sexual Offence Act [hereinafter referred to as “POCSO Act” for short].

2. During the pendency of this petition, the petitioner and the second respondent who is no other than the mother of the victim girl and also the wife of the petitioner have filed a compromise petition before this court submitting that the matter has been compromised between themselves. The parties have also filed their detailed affidavit before this Court seeking permission to compromise the matter and also seeking quashing of this petition.

3. Before adverting to the contents of the compromise petition entered into between the parties and their statement in the affidavit, it is just and necessary to have the brief factual matrix of this case: The second respondent herein who is the wife of the petitioner and no other than the mother of two victim children i.e., the daughters of the petitioner and the respondent No.2, has lodged an FIR before the respondent No.1 police making serious allegations against her husband stating that her husband has been ill-treating and harassing sexually the twin daughters who are aged about 5 ½ years. It is stated that since 2014 after their marriage, the complainant has found in the conduct of her daughters and therefore, she meticulously examined and ascertained from them, then she came to know that the petitioner had been sexually harassing the said children by touching their private parts and also kissing the children etc., Quoting various instances the wife has filed such complaint and in fact after thorough investigation, the police have submitted the charge sheet before the competent court and the same has been culminated in Special CC No.194/2015. indifferent attitude

4. After the charge sheet being filed and for the present, it appears, both the husband and wife have also decided to separate themselves. They have also filed Joint Petition for divorce in MC No.1697/2018 before the Family Court, Bengaluru. - 21 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 respondent has

5. In the above said facts and circumstances, second compromise the matter with the husband for the better interest of the children, they have decided to live separately. Husband has also specifically given up all his rights over the children including the guardianship as well as visitation rights and also he has undertaken to provide a house as well as sufficient amount for the future development of the children. forward

6. In fact, the petitioner has denied all the allegations made against him.

7. The learned counsel for the petitioner during the course of these proceedings has also produced certain additional documents i.e., the report of the Assistant Professor, Department of Child and Psychiatry, NIMHANS, Bengaluru. The documents produced before the court disclose the course of investigation, the Investigating Officer vide his letter dated 26.10.2015 has called for the report from the NIMHANS with regard to the examination of the children earlier on 10.6.2014 and 21.6.2014 when children were produced by the mother of the children for examination of the children before the NIMHANS Hospital. that during

8. In response to the same on 29.10.2015, the Assistant Professor, Department of Child and Adolescent Psychiatry, NIMHANS, Bengaluru, has reported that on assessment of the children, the doctor found that both the children have normal developmental milestones and did not have any obvious behavioral or emotional problems. Further, during the assessment using play therapy, the children have not voluntarily reported about any alleged sexual abuse incidents by their father.

9. Even the letter dated 27.7.2015 written by a lady by name Meenakshi Yaragatti, Executive of SJPU, which is the branch of Police, she also in fact examined the children and she has reported that the children have not made any allegations against their father.

10. Looking into the above said facts and circumstances of the case, though serious and heinous offence have been alleged against the - 22 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 petitioner, the mis-conception on the part of the mother of the children, under the above said doubtful circumstance, in my opinion, it cannot be ruled out. Therefore, if the compromise petition between the parties is beneficial not only to the petitioner and the second respondent, but also if it is more beneficial to the children, in such an eventuality, for the better interest and benefit of the children, the compromise petition can be accepted by the court.

11. In this context, it is worth to refer some rulings of the Hon'ble Apex Court in a decision rendered in Gian Singh Vs. State of Punjab and Another reported in [(2012) 10 SCC 303], wherein the Apex Court has held thus:-

Power of High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from power of a criminal court of compounding offences under S. 320 - Cases where power to quash criminal proceedings may be exercised where the parties have settled their dispute, held, depends on facts and circumstances of each case - Before exercise of inherent quashment power under S.482, High Court must have due regard to nature and gravity of the crime and its societal impact.

12. This Court in Criminal Petition No.3269/2017 disposed of on 12.12.2017 has elaborately discussed as to under what circumstances, the court can exercise power u/s.482 of Cr.P.C., to put an end to the dispute between the parties. Particularly referring to POCSO Act, this Court has considered the dispute between the parties particularly when the offences are punishable u/s.376 of IPC as well as under POCSO Act, this Court has made an observation that the power conferred u/s.482 of the Code is to be distinguished from the power which lies in the court to compound the offence u/s.320 of the Code. No doubt u/s.482 of the Code, the High Court has pecuniary inherent power to quash the criminal proceedings even in those cases, which are not compoundable, where the parties have settled the matter between themselves. - 23 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024

In another decision of the Hon'ble Apex Court reported in (2014) 6 SCC 466 between Narinder Singh and Others Vs. State of Punjab and another, this court has considered that the offence though u/s.307 of IPC, falls within the category of serious and heinous offence and generally treated as crime against society, since power of quashing is taken away, the court has to examine the facts and circumstances of each case and on detailed meticulous circumspection to be made by the court where the particular case on fact is liable to be quashed on the basis of the compromise entered into between the parties, the court can exercise its extraordinary jurisdiction to quash such proceedings.

13. In another decision, which is reported in (2018) 3 SCC 290 between Anitha Maria Dias Vs. State of Maharashtra, wherein the Hon'ble Apex Court has made an observation at para 7, quoting the observations made at para Nos.29.5 and 29.6 in the case of Narinder Singh, cited supra. The sum and substance of the observation made by the Hon'ble Apex Court is that: “29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6. Offences u/s.307 of IPC would fall in the category of heinous and serious offences and therefore, are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 of IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge u/s.307 of IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of - 24 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 weapons used, etc., Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak.” In such circumstances, the court would not rest its decision merely because there is a mention of such serious offence in the FIR or in the charge sheet filed by the Police. It would be open to the High Court to go by the nature of allegations made whether such an allegations on the face of record, can be taken as true or false, whether there are any other circumstances which shows that those allegations may be due to misconception. Under such circumstances also, the court can exercise power to quash the proceedings.

14. In the above said background, as per the guidelines of the Hon'ble Apex Court, if the same are applied to the facts and circumstances of this case, it is a doubtful circumstance, whether such things have happened actually in view of the doctors report as noted above. On perusal of the charge sheet, it is the document which is issued by the NIMHANS doctor, who is having authentication with regard to the factual aspects of this case. The respondent No.2 has also not denied the aspect of taking the children to the NIMHANS hospital for examination of the children by the said doctor. Under the above said facts and circumstances of the case, it is clear that there may be due to some strong dispute between the husband and wife, may be due to mis-conception the allegations have been made, but this is not a conclusive observation made, but based on the above said facts and circumstances of the case, I am of the opinion that the compromise between the parties is beneficial not only to themselves, but also to the small children, then such compromise can be accepted, even though the allegations made against the petitioner is serious and heinous and it will have some impact on the society. (Emphasis supplied) - 25 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 Since there are plethora of judgments of the coordinate benches of this Court, following the judgments of the Apex Court and even if the trial is permitted to continue, as the complainant has compromised the dispute, the possibilities of the petitioners getting convicted would be remote and bleak. Therefore, I deem it appropriate to accept the application and obliterate the impugned proceedings against the petitioners.

7. The affidavit of the victim reads as follows: “3. I state that, I know the petitioners from child hood, due to misunderstanding my father have filed complaint against the petitioners.

4. I state that, I have no objection to quash the proceedings against the petitioners.

5. I state that, I know the contents of the affidavit, I have signed this affidavit with my free consent without any force, threat, coercion, and undue influence. Wherefore, I pray that, this Hon’ble Court may be pleased to permit the Petitioner and the Respondent to compound the offence consequently, quash the entire proceedings in Special Case No.5033/2020 of Women Police Station, Dakshina Kannada District for the offence punishable under Section 342, 363 r/w. 34 of IPC and Under Section 12 of the POCSO Act 2012 on the file of V Additional District and Sessions Judge, D.K., Mangaluru, Sitting at Puttur, in the interests of justice.” - 26 - NC: 2024:KHC:27075 CRL.P No. 6497 of 2024 Therefore, in the light of the afore-quoted judgments of this Court and accepting the application seeking compounding of the offences and the affidavits of the parties, in the considered view of this Court permitting further proceedings to continue would be only waste of judicial time and of no utility.

8. For the aforesaid reasons, the following: (i) (ii) ORDER Criminal Petition is disposed. Impugned proceedings in Spl.C.No.5033/2020 pending before the V Additional District and Sessions Judge, D.K., Mangaluru, quashed. Sd/- (M.NAGAPRASANNA) JUDGE SJK List No.: 3 Sl No.: 3 CT: BHK