Karnataka High Court
Vishal Makkannanavar vs The State Of Karnataka on 24 September, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.748/2020
BETWEEN:
Vishal Makkannanavar
S/o Jinnappa Makkannanavar,
Aged about 25 years,
R/at. Boys' Hostel,
Rajarajeshwari Medical College,
{Address-Redacted},
Bangalore - 560 085.
...Petitioner
(By Sri. Pratheep K.C., Advocate)
AND:
1. The State of Karnataka
By Bidadi Police Station,
Ramanagara District
Represented by
State Public Prosecutor,
High Court Buildings,
Bengaluru-560 001.
2. {Name-Redacted}
D/o {Name-Redacted},
Aged about {Age-Redacted},
R/at. {Address-Redacted},
Near {Address-Redacted},
-2-
{Address-Redacted},
{Address-Redacted}.
...Respondents
(By Sri. H.R. Showri, HCGP for R.1;
Sri. B. Lethif, Advocate for R.2).
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the FIR in R.No.383/2018 of
Bidadi Police, Ramanagara District for the offence
punishable under Sections 376, 420, 506 of IPC pending
on the file fo the Principal Civil Judge (Sr.Dvn) and CJM
Court, Ramanagara District, Ramanagara.
This Criminal Petition coming on for Admission
'through Video Conference', this day, the Court made
the following:
ORDER
Sri. Vishal Makkannanavar S/o Jinnappa Makkannanavar petitioner -accused is present along with his counsel Sri. Pratheep K.C through video conference.
2. Learned High Court Government Pleader is present on behalf of respondent No.1 - State. -3-
3. Kum. {Name-Redacted} D/o {Name-Redacted} respondent No.2 - Complainant is present along with her counsel Sri. B.Lethif virtually.
4. Today they have filed joint affidavit for having amicably settled the matter between petitioner
- accused and respondent No.2.
5. It is stated that, respondent No.2 - complainant has filed the complaint against the petitioner-accused in Crime No.383/2018 at Bidadi Police Station, Ramanagara District for the offence punishable under Sections 376, 420, 506 of IPC. It is submitted that respondent No.2 - complainant is studying in III year MBBS in Rajarajeshwari Medical College, Bengaluru and she is the resident of Delhi and came to Bengaluru to pursue her studies. It is further submitted that petitioner-accused is also a student studying in the same college and has -4- completed his internship. It is further stated that respondent No.2 - complainant and petitioner loved each other. The respondent No.2 -complainant states that she is having great respect towards petitioner- accused and his family members and does not have any ill-will towards them. It is further stated that on the basis of ill-advice given by her friends and relatives, she had filed a complaint and criminal case has been registered against petitioner-accused under misconception. It is further stated that now they have resolved their differences and misunderstanding amicably with the intervention of the family members of both the sides and they have decided to marry each other and engagement was also solemnized on 10.08.2019 at Karnataka Jain Association and exchanged finger rings as per the rituals prevailed in Jain Community. It is further stated that after completion of her MBBS, she will get marry to -5- petitioner-accused and the same has also been agreed by the members of both the families. The complainant submits that she has no objection to quash the case in Crime No.383/2018, in view of the compromise entered into in between them.
6. When parties were present virtually before the Court and when they were questioned, they submitted that the said compromise is without there being any threat, force, coercion, fraud or misrepresentation. The Joint affidavit has been signed by the petitioner-accused and respondent No.2- complainant and same has been endorsed by the learned counsel for the parties. Even the parents of both the parties were also present. Both the counsel identifies the parties, who are virtually present as the same parties. They have also agreed and admitted with the compromise entered into and have no objection to quash the proceedings. When this Court -6- asked the question to both the parties, they submitted that after the marriage they want to live happily by leaving their earlier ill-will by getting into compromise. It is further submitted that if criminal proceedings is continued, it may come in the way of future marital life. It is further stated that because of deep love with each other with consensually they had a physical contact. It is submitted now they intend to live together after marriage as husband and wife.
7. 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:- -7-
"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., for quashing criminal proceedings was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particular offences arising from 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."
8. 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 -8- 482 of Cr.P.C. depending upon the facts and circumstances of each case and compound the offence. In the case of Narinder Singh and others Vs. State of Punjab and another reported in (2014) 6 SCC 466, it has been observed as under:
"8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are 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 the Code, compounding is 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 -9- 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.
9. 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 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
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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.
59. B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in
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B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment."
10. 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
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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.
11. 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 Singh case, SCC pp.340-41. para 58) "58. Where the High Court quashes a criminal proceeding having regard to the facts that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes
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have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of
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justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed."
12. Thereafter, the Court summed up the legal 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. However, before exercise of such power, the High Court must have due regard to
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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. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a 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, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of
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conviction is remote and bleak and continuation of the criminal case would put the 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 or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
The Court in Gian Singh case was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the Prevention of Corruption Act or the offences committed by Public Servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and
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inasmuch as settlement of such heinous crime cannot have imprimatur of the Court."
9. 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 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.
9. The learned 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.
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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
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303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] .
13. In view of the above and for the reasons stated above, we allow the parties to compound the offences, even though the offences alleged are non-compoundable, as the dispute between the parties predominantly or overwhelmingly seems to be of a civil nature and that the dispute is a private one and between the two private parties. Accordingly, it is ordered that on payment of a sum of Rs 10,00,000 by the appellants to the original complainant to be deposited in the bank account of the original complainant within a period of two weeks, the criminal proceedings being CR Case No. 40-C of 2014 pending in the Court of the learned CJM, 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, to the appellants herein, which the appellants have deposited pursuant to the earlier order of this Court.
14. The present appeals stand disposed of accordingly in terms of the above."
10. Bearing in mind the above said ratio and circumstances and on perusal of the material, the complaint has been registered by respondent No.2-
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complainant alleging that when they were studying in II year MBBS at Rajarajeshwari Medical College and petitioner-accused was also pursuing his studies in the same college. On 06.02.2017, the complainant- respondent No.2 had met Vishal - petitioner -accused at college and introduced himself and thereafter, he had sent messages. On 25.02.2017 petitioner- accused invited the complainant-respondent No.2 for his birthday and they went for dinner and there the petitioner-accused expressed that he loves her and he want to live rest of his life with her. It is alleged that he took her to Andhra Style Spicy Restaurant and promised that he will marry her and want to be her life partner. Subsequently, they had sex with each other and he also promised to marry her. With some difference of opinion, complaint has been filed.
11. On perusal of the contentions of the complaint and the allegations made, that itself goes to
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show that petitioner-accused being the senior colleague in the same medical college has expressed that he is deeply in love with her and want to leave rest of his life with her and also expressed that he is going to marry her. Under the said facts and circumstances, I am of the considered opinion that respondent No.2- complainant is also major and the petitioner-accused has clearly expressed that he is willing to marry her and subsequently, the respondent No.2-complainant also agreed and willfully they had a sex. When both are major and with consensually they had sex, then under such circumstances, the contentions of the complaint are not going to be held as offence.
12. Be that as it may. Now the petitioner- accused and respondent No.2 - complainant have filed joint affidavit and have already got engaged by ceremonial engagement and exchanged finger rings
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and parents of complainant and the petitioner-accused have agreed. It is submitted that, immediately after completion of the MBBS course by the complainant, she will get marry with petitioner - accused. Even the parents were present before the Court virtually and also endorsed the same.
13. Keeping in view the fact that when both the petitioner-accused and the complainant - respondent No.2 have settled the matter and are willing to marry and the sex which is said to have been taken place is also consensual sex and there was no intention of the petitioner-accused to cheat the complainant since from the first act of the accused-petitioener. In that light, the prosecution and the continuation of the proceedings is nothing but is waste of judicial time and abuse of process of law. When both the victim as well as accused is intending to lead a marital life and they are also highly educated and they also know the
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consequences, in that light, this Court can exercise the power under Section 482 of Cr.P.C. In the case of Gian Singh (quoted supra) it has been observed that High Court is having power under Section 482 of Cr.P.C. to weigh the material on record and take an appropriate decision in accordance with law. It has been observed that if the dispute is put to an end and peace is restored, securing justice is ultimate guiding factor. In subsequent decision of Hon'ble Apex Court while considering the same view depending upon the facts and circumstances of each case, the Court can exercise its power under Section 482 of Cr.P.C. and quash the proceedings.
14. Taking into consideration, the above facts and circumstances, I am of the considered opinion that if the Joint memo is accepted and the proceedings are quashed, then no harm is going to be caused. I am conscious of the fact that Section 320 of
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Cr.P.C. allows certain offences for the parties to compromise and the other offences are compromised with the permission of the Court. But when the offences are relating to the society at large then under such circumstances, the compromise should not be allowed, but herein the power of the Court can be exercised under Section 482 of Cr.P.C because of the reason that if criminal proceedings are allowed to be continued then there will be some misunderstanding. The relation which were strained has been peacefully settled and continuation of criminal proceedings will be a futile exercise, when the victim got compromised with accused-petitioner. The settlement is a boon to the Society. The stigma which is going to be there on the victim is going to be vanished, victim will get a status of wife, the look from the society will also change. Whatever the small gap which was there has already welded and the accused and the victim
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wanted to lead a happy marital life, then under such circumstances, the Court can accept the same and quash the proceedings.
15. Keeping in view the above facts and circumstances, petition is allowed and the proceedings initiated in Crime No.383/2018 pending on the file of Principal Civil Judge (Sr.Dvn), CJM Court, Ramanagara District, Ramanagar for the offence punishable under Section 376, 420, 506 of IPC insofar as accused-petitioner is concerned, is quashed.
16. Since the parties have appeared virtually, because of Covid-19 they are unable to sign today itself. The learned counsel appearing for both the parties has also identified the signature in the Joint Affidavit. In that light, the signature in the order sheet has also not been obtained.
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17. In view of disposal of the main petition, IA.No.1/2020 does not survive for consideration. Accordingly, IA.No.1/2020 is disposed of.
Sd/-
JUDGE ag