Uttarakhand High Court
Suarabh Singh Alias Subham vs State Of Uttarakhand And Others on 18 October, 2016
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Writ Petition No. 1397 of 2016
Saurabh Singh @ Subham ..............Petitioner
versus
State of Uttarakhand and others .......... Respondents
Mr. Gaurav Singh, Advocate, present for the writ petitioner.
Mr. A. S. Gill, learned Deputy Advocate General assisted by, assisted by
Mr. Milind Raj and Ms. Mamta Joshi, Brief Holders, present for the
State/respondents no. 1 & 2.
Mr. Nikhil Singhal, Advocate, present for the respondents no. 4.
U.C. Dhyani, J. (Oral)
1. The writ petitioner, by means of present Writ Petition, seek to quash the Case Crime No. 106 of 2015, under Sections 363ka of IPC and Section ¾ of the POCSO Act, lodged by respondent no. 3, at Police Station Jhabrera, District Haridwar.
2. An FIR was lodged by respondent no. 3 against the petitioner and two others on 23.11.2015 in relation to an incident which allegedly took place on 21.11.2015 alleging therein that the accused persons kidnapped the daughter of the informant. The daughter was said to be 12 years old.
3. Writ Petitioner Saurabh Singh @ Subham and the victim Ruby Devi/respondent no.4 are present in person duly identified by their counsel respective counsels. According 2 to Saurabh Singh @ Subham and Ruby Devi, they have married to each other on their own volition on 11.09.2016 at Ganga Dham Ashram, Haridwar. According to High School Certificate, the date of birth of Ruby Devi (victim) is 08.01.1998. A copy of the High School Certificate of Ruby Devi has been brought on record. When Ruby Devi got married to the petitioner Saurabh Singh, he was major and his date of birth, according to the High School Certificate, is 22.08.1995. Petitioner and respondent no. 4 have also got registered their marriage before the Registrar, Marriage, Haridwar on 05.10.2016. A copy of the registration certificate is enclosed as Annexure No. 4 to this writ petition.
4. It will be relevant to quote herewith the observations made by Hon'ble Apex Court in Gian Singh v. State of Punjab and another, (2013) 1 SCC (Cri) 160, in which Hon'ble Supreme Court observed as below:
"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 3 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."
5. It will, therefore, be not possible for this Court to permit to Compound the offences under Sections 363Ka of IPC and Section ¾ of the POCSO Act.
6. Respondent no. 4 has married to petitioner according to Hindu rites and rituals. It is the statement of learned counsel for the petitioner Mr. Gaurav Singh that respondent no. 4 has already attained the age of majority. According to 4 the High School Certificate, her date of birth is 08.01.1998. Respondent No. 4 is present in person, who says that marriage between her (respondent no.4) and the petitioner has been performed according to their own wishes. Although, the offences complained of against the petitioner are not covered by Arnesh Kumar vs. State of Bihar and another, reported in (2014) 8 Supreme Court Cases 273, but, when the respondent no.4 has married to petitioner according to Hindu rites and religion, therefore, this Court thinks that the following order should be passed in the interest of justice.
7. It is provided that the petitioner should be arrested only when the Investigating Officer has reason to believe, on the basis of information and material collected, that he has committed an offence. Before making arrest, the Investigating Officer is required to satisfy himself that the arrest is necessary for one or more purposes envisaged by Sub-Clauses (a) to (e) of Clause (1) of Section 41 of Cr.P.C. It will not be based upon the ipse dixit of the Police Officer. In other words, the petitioner shall be arrested only when the conditions stipulated in Sub-Clauses (a) to (e) of Clause (1) of Section 41 of Cr.P.C. are satisfied.
8. Needless to say that the Investigating Officer of the case shall abide by the aforesaid directions of Hon'ble Apex Court, before affecting the arrest of the petitioner.
9. Petitioner is directed to contact the Investigating Officer of the case on 25.10.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation.
510. It will be of no use keeping the present Criminal Writ Petition pending for disposal, inasmuch as, the investigation is going on and ultimately, the investigation will come to its logical conclusion only under Section 173 of the Criminal Procedure Code either by a final report or by a charge sheet. The same is accordingly being disposed of at the admission stage itself with the consent of learned counsel for the parties, who are present.
11. In the given facts and circumstances of the present writ petition, this Court does not feel it necessary to issue notice to the respondent no. 3. Still, liberty is granted to him to move for recall of this Order, if he feels aggrieved with the same.
(U.C. Dhyani, J.) 18.10.2016 Kaushal 6