Uttarakhand High Court
Ajay Malik vs State Of Uttarakhand And Another on 1 September, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No. 96 of 2018
(Under Section 482 of Cr.P.C.)
Ajay Malik ... Applicant
Vs.
State of Uttarakhand and Another ... Respondents
Advocate: Mr. Arvind Vashisth, Senior Advocate, assisted by Mr. Harendra
Mehra, Advocate, for the applicant.
Mr. Siddharth Bisht and Mr. Rohit Dhyai, Brief Holder, for the
State.
Mr. Tribhun Chandra Pandey, Advocate, for the
complainant/respondent No. 2
Hon'ble Sharad Kumar Sharma, J.
The present C-482 Application, which has been preferred by the applicant is emanating from a Criminal Case No. 5282 of 2017, which has been registered, as a consequence of the submission of the Charge Sheet, after completion of investigation, in relation to an FIR, being FIR No. 60 of 2018 dated 20.03.2017, which has been registered against the present applicant, for their involvement in commission of the offences under Sections 343, 370 and 120-B of the I.P.C., which was registered at Police Station, Raipur, Sadar, district Dehradun.
2. The applicant to the present C-482 Application had prayed for that the Charge Sheet, being Charge Sheet No. 93A of 2017 dated 31.10.2017, which has been submitted against the present applicant for his alleged involvement in the commission of offences under Sections 343, 370 and 2 120-B of the IPC, as well as, he has prayed for further quashing of the summoning order, as well as the entire proceedings of Criminal Case No. 5282 of 2017, State Vs. Ajay Malik.
3. During its pendency, the parties to the present C-482 Application have filed their Compounding Application (IA/532/2022), whereby, under a joint affidavit which had been submitted by the counsels, with the signatures of the respective parties to the proceedings, they have sought a composition of offence, as against which, the present applicant, was being tried by the Court of Chief Judicial Magistrate, district Dehradun.
4. When the composition application was placed before the Court for its consideration, due to inability on part of the private respondent to physically appear before the Court, she was directed to participate through video conferencing, for the purposes of considering the Compounding Application.
5. The learned Senior Counsel for the applicant, who stands in support of the Compounding Application, seeking composition of the offences, for which the present applicant has been charged to be tried, is inclusive of the offence as contained under Section 370 of the IPC. To substantiate his argument, he submits that Section 370 of the IPC, could too 3 be extended to be brought within an ambit of composition under Section 320 of the Cr.PC, though it is not included in the Table, appended to it, on the ground that if the statement of the complainant, which has been filed along with the counter affidavit on recorded under Section 164 of the Cr.PC, is taken into consideration, the Compounding Application deserves to be considered in the light of the statement which had been recorded therein.
6. This Court was called upon to have a comparative scrutiny of the set of allegations, which had been leveled in the FIR; along with the set of statement which has been made under Section 164 Cr.PC, in order to compound the offences. For the purposes to answer the argument, as to whether the statement recorded under Section 164, could be derived for the purposes to bring the 'act of slavery' as contained under Explanation-1, whether it will amount to be 'an exploitation', or not, the statement under Section 164 has to be extracted as a whole, wherein the complainant- respondent No. 2, she has specifically stated, that since October, 2016, when she requested the applicant to send her back, to her home, it was the applicant, who has made a statement that he will send the complainant/respondent No.2, herein back to her home subject to the condition that some alternative arrangement is made for a lady to work as a housemaid, in the house of the applicant.
47. This statement under Section 164 of the Cr.PC itself, will not be or could not be construed as to be the willingness, the expression which had been given by the complainant that she may be sent to her home in October, 2016, and thereafter the statement referred to in the statement recorded under Section 164 of the present applicant, of keeping the complainant in his home against her wishes till the time the alternate arrangement is made, that will itself amount to fall to be well within the terms of slavery, as it has been contained under Explanation-1 to Section 370 of the Indian Penal Code.
8. In order to better elaborate the argument which has been extended, the expression "exploitation", it has a very wide connotation and even if it is considered within the inscription of Explanation-1, the human exploitation itself would be inclusive of slavery or practice similar in slaving a person, against his or her wishes.
9. This Court is of the view that the statement recorded under Section 164 of the Cr.PC, would fall to be well within an act of exploitation, as contained under Explanation-1 of Section 370 of the I.P.C, which is not compoundable under Section 320 of the Code of Criminal Procedure.
10. After having interacted the complainant/respondent No. 2 herein, through video conferencing, she had 5 submitted, that the present applicant is not responsible for the act, which was complained of by her and which finds reference in her statement too which was recorded under Section 164 of Cr.PC.
11. Though, this Court, at this stage is refraining itself to make any observation, because most of the aspects could also be culled out from the body language, expression and the statements which had been made by the complainant, which is not being deliberately remarked, because it may have an adverse effect on the criminal case. But, exclusively on the ground, that as against the present applicant, Section 370 of I.P.C. is made out, apart from the fact that it is not compoundable under Section 320 of the Cr.PC, the Compounding Application is hereby rejected.
12. The learned Senior Counsel for the applicant submitted that C-482 Application itself may be considered on its own merit.
13. As far as the present C-482 Application is concerned, in fact, the major act of commission of offences under Sections 343 and 370, which was registered by the complainant was against the present applicant, at P.S. Raipur, Sadar, district Dehradun, has already been derived and dealt by this Court, while considering his compounding application with regard to prima facie making of an offence under Section 370 of 6 the Cr.PC., in fact, as per the opinion of this Court, is a heinous offence against the society, which is now artificially resorted to these modern era.
14. This concept of the social welfare of the Constitution cannot be permitted to be misutilised by the affluent classes of society to facilitate to exploit the poor person and that too, against the wishes, when she was brought to the home of the present applicant to work as a maid, and she was forced to be confined to be there till an alternative arrangement was made.
15. In that eventuality, if the Charge Sheet itself is taken into consideration, which has been recorded by the Investigating Officer, after examining as many as 21 witnesses, a specific set of allegation, is apparently shown to be made out against the present applicant of wrongful confinement of the complainant against her wishes, though she has desired to return back to her residence as back as in 2016.
16. In that eventuality, this Court is not inclined to interfere in this present C-482 Application in the exercise of my inherent powers, because the very act, which has been complained of in the FIR, and as made out in the statement, which has been recorded by the complainant under Section 7 164, itself is an apparent abuse at the hands of the applicant.
17. The C-482 Application is hereby, accordingly, dismissed.
18. Precautionary, this Court is of the view, that owing to the peculiar circumstances of the case, where the present complainant/respondent No. 2, has been rather forced upon to work as a housemaid, in the house of the present applicant, there may be a possibility that she may be exploited in future. Hence, the SSP, district Dehradun, is directed to provide all security to the complainant/respondent No. 2 herein, and would ensure her peaceful and safe living.
(Sharad Kumar Sharma, J.) 01.09.2022 Mahinder/