Shaukat v. Ameen and others), under Section
Case Details
Neutral Citation No. - 2023:AHC:174276 Court No. - 91 Case :- APPLICATION U/S 482 No. - 43535 of 2022
Legal Reasoning
Applicant :- Ameen And 2 Others Opposite Party :- State Of U.P And 2 Others Counsel for Applicant :- Mithilesh Kumar Shukla Counsel for Opposite Party :- G.A.,Rajendra Kumar Srivastava Hon'ble Gajendra Kumar,J. 1. Heard learned counsel for the applicants, learned counsel for the opposite parties and perused the record. 2. The present Application U/S 482 Cr.P.C. has been filed with the prayer to quash the entire proceeding of the criminal case No.37 of 2018 (Shaukat Vs. Ameen and others), under Section 377 IPC and Section 3/4 of POCSO Act, Police Station-Farah, District-Mathura on the basis of compromise. 3. As per prosecution story, on 05.03.2018, the opposite party no.2 had filed an Application under Section 156(3) Cr.P.C. against the applicants with the allegations that on 26.02.2018 at about 06:30 p.m. all the accused applicants have enticed away his minor grandson (Nati) and, thereafter, committed unnatural sex with him. When with the lapse of some time, his grandson did not return his home, he (opposite party no.2) searched for him here and there, then villagers, namely, Sindhi and Shahzad son of Gaffar told him that present applicants had taken away him (grandson) towards the garden, when he went there, found his grandson in fainted position and found some injuries in his body, thereafter, he has taken him to the hospital for treatment. 4. Learned counsel for the applicants submits that applicants have been falsely implicated in the present case due to ulterior motive. It is further submitted that misunderstanding amongst parties have been cleared/removed and both have amicably settled the matter by way of compromise; informant/complainant and applicants have entered into a compromise dated 02.03.2023, which was submitted before the learned Additional District Judge, Mathura. Thereafter, this Court vide order dated 20.01.2023, has sent the said compromise deed to the trial court with a direction to get the same verified and submit a report. 5. Learned counsel for the parties have not disputed the fact that parties have settled their dispute amicably and same has been verified by the trial court vide order dated 02.03.2023, a copy of which has been annexed in support of the instant application. It is further submitted that as possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim; the same is liable to be quashed by using its inherent power under Section 482 Cr.P.C. 6. On the other hand, learned AGA for the State opposed the contention aforesaid as well as factum of compromise deed and submits that applicants were involved in committing the aforesaid offence, as a result, charge-sheet under the aforesaid sections has been submitted against the applicants. It is further submitted that as heinous and serious offences of mental depravity are involved in the instant case, it cannot be fittingly quashed at this stage. 7. Having heard the rival submissions of learned counsel for the parties and perusal of records, in this regard, law is well settled by the Hon'ble Apex Court, in the case of Gian Singh Vs. State of Punjab and another AIR 2012 SC (Supp) 838. Relevant paragraph of the aforesaid order is reads as follows: "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 F.I.R may be exercised where the offender and 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." 8. In the case of Narinder Singh Vs. State of Punjab (2014) 6 SCC 466, after considering the decision in the case of Gian Singh Vs. State of Punjab and another, in paragraph 29, this Court summed up as under: "29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: (I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. (II)When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any Court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. (III) Such a power is not be exercised in those prosecutions which involve 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. Similarly, for offences alleged to have been committed under special statute like the 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) On the other, those criminal cases having overwhelmingly and pre- dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. (V) 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. (VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is 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/delegate 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 remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later 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. (VII) 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 the settlement is arrived at 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 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." 9. Law propounded by full Bench in State of Madhya Pradesh Vs. Laxmi Narayan and others, passed in Criminal Appeal No. 349 of 2019 with Criminal Appeal No. 350 of 2019, is of this fact that while exercising jurisdiction under Section 482 Cr.P.C., for quashing a criminal proceeding or charge-sheet, the Court is to consider the factual aspect of heinousness of offence, impact on society, social and private wrong and end of justice as well as abuse of process of any Court which are the guiding principle in case of quashing the criminal proceeding, on the basis of settlement and compromise. In present case, all these ingredients are not fulfilled. 10. The offence being of heinous character i.e. unnatural sex punishable under Section 377 I.P.C coupled with evil of sexual exploitation and sexual abuse of minor children punishable under Section 3/4 of POCSO Act, which may never be deemed to be a private wrong, rather offence which badly affects the interest of society as well as State at large, hence looking to above facts and circumstances, this application merits its dismissal. 11. Applications is, accordingly, dismissed. Order Date :- 21.8.2023 Ashutosh Digitally signed by :- ASHUTOSH SINGH High Court of Judicature at Allahabad