High Court
Case Details
Neutral Citation No. - 2024:AHC:189060 Court No. - 81 Case :- APPLICATION U/S 482 No. - 28599 of 2024 Applicant :- Jaihind Ram Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Awadhesh Kumar Malviya Counsel for Opposite Party :- G.A.,Sanjeev Singh Hon'ble Manoj Bajaj,J. 1. Applicant-Jaihind Ram has filed this petition under Section 482 Code of Criminal Procedure for quashing of the criminal proceedings arising out of the Case Crime No. 67 of 2023, under Section 376 IPC and Section 5/6 Protection of Children From Sexual Offences Act, 2012 registered at Police Station Bahariyabad, District Ghazipur and subject matter of Sessions Trial No. 540 of 2023, titled State vs. Jaihind Ram, pending before the Special Judge (POCSO Act), Ghazipur, on the basis of the compromise dated 07.08.2024 (Annexure No. 9). 2. The above noted case was lodged by opposite party no.2 i.e. the father of the victim, wherein he alleged that on 4.6.2023, his daughter went to Bahariyabad for purchasing clothes and when she was returning home, the accused-applicant pulled her in a deserted place on the point of knife and raped her. On these broad
Facts
allegations, the above FIR was registered for the alleged commission of offences punishable under Sections 376 IPC and Section 3/4 Protection of Children From Sexual Offences Act, 2012 3. After registration of the case, the police carried out investigation and submitted the final report bearing Charge Sheet no. 01 of 2023 dated 22.06.2023 under Section 173(2) Cr.P.C against the applicant-accused for alleged commission of offence punishable under Section 376 IPC and Section 5/6 Protection of Children From Sexual Offences Act, 2012.
Legal Reasoning
10. By now it is well settled that the penal laws are aimed to deter the citizens from resorting to the commission of crime, and if, the offences of heinous nature are allowed to be compromised, it would adversely impact the object of penal laws. If, the power under Section 482 Cr.P.C. is permitted to be exercised in respect of the heinous crimes, then it would certainly encourage the criminals to take law in their own hands. At this stage, this Court deems it appropriate to refer the decision of Hon'ble Supreme Court in Gian Singh vs. State of Punjab reported in (2012) 10 SCC 303, wherein the Apex Court while examining the exercise of inherent powers under Section 482 Cr.P.C. on the basis of compromise in relation to the serious offences made the following observations:- "61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or 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 plenitude with no statutory limitation but it has to be exercised in accord with the guideline 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. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences." 11. Apart from the above decision, the Hon'ble Supreme Court in the State of Madhya Pradesh vs. Laxmi Narayan and others reported in 2019 AIR (Supreme Court) 1296 further laid down the principles for quashing of the criminal proceedings on the strength of compromise, in non-compoundable offences by exercising inherent powers under Section 482 Cr.P.C. The relevant portion of the judgment is extracted below:- "13. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under: i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. 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 framing 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/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc. 14. Insofar as the present case is concerned, the High Court has quashed the criminal proceedings for the offences under Sections 307 and 34 IPC mechanically and even when the investigation was under progress. Somehow, the accused managed to enter into a compromise with the complainant and sought quashing of the FIR on the basis of a settlement. The allegations are serious in nature. He used the fire arm also in commission of the offence. Therefore, the gravity of the offence and the conduct of the accused is not at all considered by the High Court and solely on the basis of a settlement between the accused and the complainant, the High Court has mechanically quashed the FIR, in exercise of power under Section 482 of the Code, which is not sustainable in the eyes of law. The High Court has also failed to note the antecedents of the accused." 12. Recently, in the case of Ramji Lal Bairwa & Anr. vs. State of Rajasthan & Ors. (2024 SCC OnLine SC 3193), considering the decisions in Gian Singh' case (supra) and State of Madhya Pradesh (supra), the Hon'ble Supreme Court has reiterated the said binding decisions with the following observations:- "25. Thus, in unambiguous terms this Court held that before exercising the power under Section 482, Cr. P.C. the High Court must have due regard to the nature and gravity of the crime besides observing and holding that heinous and serious offences could not be quashed even though a victim or victim's family and the offender had settled the dispute. This Court held that such offences are not private in nature and have a serious impact on the society. Having understood the position of law on the second question that it is the bounden duty of the court concerned to consider whether the compromise is just and fair besides being free from undue pressure we will proceed to consider the matter further. A bare perusal of the impugned order dated 04.02.2022 would reveal that the High Court has erred in not bestowing proper consideration the law laid down in Gian Singh's case (supra) while rendering the same. The impugned order would reveal that the allegations contained in the subject FIR was not at all even adverted to, before quashing the same. …......………. x x x x 28. A bare perusal of the impugned order and in the light of the observations and binding conclusions in Gian Singh's case (supra), bearing in mind the allegations in the subject FIR, it would reveal that the High Court has misread and misapplied the law laid down in Gian Singh's case (supra) to quash the subject FIR and all further proceedings based in pursuance thereof. We are at a loss to understand how the High Court arrived at the conclusion that in the case on hand a dispute to be resolved exists between the parties and further that to maintain harmony the FIR and all further proceedings thereto should be quashed even without adverting to the allegations raised against the 3rd respondent in the subject FIR. It is also a fact that though in terms of the decision in Gian Singh's case (supra) an irrecusable duty of the Court to consider whether the compromise could be acted upon or not in the interest of justice, the impugned order would reveal that the High Court has failed to bestow proper consideration in that regard as well. 29. In the contextual situation, it is also relevant to refer to a Three Judge Bench decision of this Court in State of M.P. v. Laxmi Narayan16. This Court held that whether an FIR is quashable or not would depend upon the facts and circumstances of each case and while considering that question, the Court has to apply its mind to (I) whether the crime is one against the society or against an individual alone, nature of the dispute, (ii) seriousness and how the crime was committed (iii) whether offence(s) is one under a special statute (iv) stage of proceedings and how the accused manged to compromise with the complainant. x x x x 32. In the decision relied on by the High Court to quash the proceedings viz., Gian Singh's case (supra) and the decision in Laxmi Narayan's case (supra) in unambiguous terms this Court held that the power under Section 482, Cr. P.C. could not be used to quash proceedings based on compromise if it is in respect of heinous offence which are not private in nature and have a serious impact on the society. When an incident of the aforesaid nature and gravity allegedly occurred in a higher secondary school, that too from a teacher, it cannot be simply described as an offence which is purely private in nature and have no serious impact on the society. 33. In view of the reasons as aforesaid and in the light of the decisions referred supra, the impugned order dated 04.02.2022 of the High Court in S.B.C.R.M.P. No.1348/2022, quashing the FIR No.6/2022 dated 08.01.2022 and all further proceedings pursuant thereto solely on the ground that the accused and the complainant had settled the matter, invites interference. We have no hesitation to hold that in cases of this nature, the fact that in view of compromise entered into between the parties, the chance of a conviction is remote and bleak also cannot be a ground to abruptly terminate the investigation, by quashing FIR and all further proceedings pursuant thereto, by invoking the power under Section 482, Cr. P.C. In the said circumstances, this appeal is allowed. The impugned order dated 04.02.2022 of the High Court in S.B.C.R.M.P. No.1348/2022 is hereby quashed and set aside. Consequently, the FIR No.6/2022, investigation and criminal proceedings pursuant thereto subject to the Criminal Appeal No.3403 of 2023 Page 40 of 40 nature of the report to be filed under Section 173(2), Cr. P.C., be proceeded with against the accused, in accordance with law." 13. Thus, in view of the above decision of the Hon'ble Supreme Court, the citations relied upon by the learned counsel for the applicant in Vipin Chauhan @ Badal (supra) would not be applicable as in the said case, the above noticed principles laid down by Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Laxmi Narayan and others, 2019(5) SCC 688 had not been noticed. 14. Now while reverting to the facts of the case in hand, this Court finds that as per prosecution, the applicant had committed rape upon the daughter of the complainant who was minor and after commencement of trial the said victim testified before the court as P.W.2. The said statement of witness is appended with the application and a perusal of the same further shows that the defence counsel had conducted her cross-examination as well. The prosecution is in the process of discharging the onus and therefore, it will not be for this Court to make any observation on the merits of the case, particularly the deposition of the prosecutrix. 15. Consequently, considering the facts and circumstances of this case, this Court has no hesitation in holding that the sole ground of compromise raised by the applicant in this petition for quashing of the criminal proceedings is rejected. 16. Resultantly, without meaning any expression of opinion on the merits of the case, the application under Section 482 Cr.P.C. is dismissed. Order Date :- 2.12.2024 Shiv
Arguments
4. Learned counsel for the applicant submits that pursuant to the final report, the trial commenced against the accused before the court of sessions, and during the pendency of the same, the parties have agreed to resolve the dispute, who have arrived at a written compromise on 07.08.2024 (Annexure No. 9). Learned Counsel has invited the attention of the Court to the said compromise and further submitted that the matter has been amicably settled, therefore, the parties do not want to contest the case against each other. 5. Learned counsel has referred to the decision of this Court in Vipin Chauhan @ Badal (Application U/S 482 No.7465 of 2024) and submitted that in similar circumstances, this Court has quashed the criminal proceedings against the accused, relating to the alleged commission of offence punishable under Section 376 IPC. He prays that the petition be allowed and the criminal proceedings pending against the applicant be also quashed on the basis of the compromise. 6. At this stage, learned counsel for the respondent no. 2 has stated that indeed the parties have amicably settled the dispute and he has no objection in case, the prayer made by the applicant for quashing of the FIR is accepted. According to the learned counsel for respondent no.2, in view of the compromise of the parties, the chances of conviction have become weak, therefore, no useful purpose would be served by continuing with the criminal proceedings. 7. The prayer is opposed by the learned State Counsel who has argued that the offence is serious and in such cases, the compromise between the parties is meaningless as the nature of the offence is not against an individual, but is against the society. He prays that the petition be dismissed. 8. Learned counsel for the parties have been heard and with their assistance, the case file has been perused. 9. After hearing the learned counsel for the parties and considering their submissions, this Court finds that the solitary ground of compromise set up in this petition for quashing of the criminal proceedings is not worth acceptance considering the nature and gravity of offence. No doubt, by interpretation, the Hon'ble Supreme Court and the High Courts have injected some elasticity in quashing criminal proceedings, relating to the non-compoundable offences, through exercise of inherent powers under Section 482 Code of Criminal Procedure, but such a relaxation cannot be construed as an absolute one, and would depend upon various factors including the magnitude of the offences, manner of the commission of offences, weapons used in the crime etc. and effect on the society.