The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4237 of 2023 Prakash Swain & Another ..…… Petitioners Mr. Kabiraj Pradhan, Advocate State of Odisha & Another
Legal Reasoning
-Versus- ..……. Opposite Parties Mr. B.K. Ragada, AGA Mr. D.K. Mohapatra, Advocate for O.P. No.2 CORAM: JUSTICE S.S. MISHRA
Decision
ORDER 21.02.2024 Order No. 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. The present matter was taken up for hearing on 19.02.2024 and this Court passed the following order: “1. Both the petitioners are the opposite party no.2 are present in the Court today. They conjointly state that the criminal prosecution launched by the opposite party no.2 against the petitioners may be dropped. 2. The opposite party no.2 has filed an affidavit in the Court, inter alia, stating that the dispute arose due to the misunderstanding in the village and on the intervention of the village gentries as well as the family members, the matter has been settled out of the Court. On the basis of the settlement, she has filed an affidavit in the Court, inter alia, praying for dropping of the criminal prosecution against the petitioners. 2 3. Mr. Mohapatra, learned counsel has appeared for the opposite party no.2 and he has also identified the opposite party no.2 in the Court today. The petitioners and the opposite party no.2 have filed photocopies of their respective self-attested Aadhaar Cards to establish their identity, which are taken on record. 4. Learned counsel for the petitioners prays for adjournment to place on record a better affidavit of the parties. 5. tomorrow.” List this matter for further hearing day after In pursuance of the aforementioned order, the opposite party No.2 has now filed an affidavit inter alia stating that on the intervention of the village gentries and well-wishers, she has entered into a settlement with the petitioners and she does not want to proceed with the present case. 3. Mr. Ragada, learned counsel appears for the State and submits that this is a case whereby the trial court has already taken cognizance for the offence under Section 376(1) and 506 of I.P.C. Since the offence is heinous in nature, quashing of the proceeding in toto is not called for. 4. Per contra, learned counsel for the petitioners has relied upon the judgment of the Hon’ble Supreme Court in Kapil Gupta v. State (NCT of Delhi) and Another reported in (2022) 15 SCC 44 and submits that in the said case the Hon’ble Supreme Court by relying upon its earlier judgment in Narinder 3 Singh & Others v. State of Punjab and Another, reported in (2014) 6 SCC 466 has quashed the proceeding despite the fact that the offence was under Section 376 IPC. He strongly relies upon paragraph-11 of the judgment in Kapil Gupta (supra) which reads as follows: “11. No doubt that the learned ASG is right in relying on various judgments of this Court which reiterate the legal position that in heinous and serious offences like murder or rape, the Court should not quash the proceedings. It will be relevant to refer to paras 29.5 to 29.7 of the judgment of this Court in Narinder Singh v. State of Punjab (2014) 6 SCC 466 which read thus : “29.5. While exercising its powers, the High Court is to examine as to whether the possibility remote and bleak and of conviction 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. is 29.6. Offences under Section 307 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 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 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/delicate parts of the body, nature of 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 4 remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where is arrived at the settlement immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/ investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” 5 5. Learned counsel for the petitioners further submits that since the prosecutrix in the present case has appeared before this Court and has given an affidavit that she does not want to proceed with the case, therefore, subjecting the petitioners to the trial would be a futile exercise because there is a remote and bleak chance to obtain conviction against the petitioners in the present case. I have given a conscious thought to the judgment and facts scenario of the present case and I am of the considered view that further continuance of the prosecution against the petitioners indeed a futile exercise. Therefore, the order of cognizance dated 22.08.2018 passed by the learned NGN-cum- JMFC, Tangi in G.R. Case No.141 of 2015 arising out of Tangi P.S. Case No.114 of 2015 is quashed qua the petitioners subject to the petitioners paying cost of Rs.1,000/- (Rupees one thousand) to the Orissa High Court Advocates’ Welfare Fund. 6. The CRLMC is accordingly disposed of. (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Feb-2024 13:37:55