Allahabad High Court
Rajesh Kumar And 3 Others vs State Of Up And Another on 1 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2445
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved on 22.10.2020
Judgment Delivered on 01.12.2020 "AFR"
Court No. - 35
Case :- APPLICATION U/S 482 No. - 14973 of 2020
Applicant :- Rajesh Kumar And 3 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sharique Ahmed
Counsel for Opposite Party :- G.A.
Hon'ble Ravi Nath Tilhari,J.
1. Heard Sri Sharique Ahmed, learned counsel for the applicants, Sri Ashish Dubey, learned counsel for the opposite party no.2 and Sri Pankaj Sexena, learned AGA appearing for the State and perused the material brought on record.
2. The applicants have filed the present application under Section 482 Code of Criminal Procedure (Code/Cr.P.C.) with the following main prayers:-
"(i) Quash the criminal proceeding of Criminal Complaint Case No.105 of 2017 (Shobha Devi Vs. Veerpal and others), under Sections 392, 504, 506, 376, IPC in respect of applicant no.3 and under Sections 392, 504, 506, IPC in respect of applicant nos. 1, 2 & 4, Police Station-Gursahayganj, District Kannauj, pending before the Additional District Judge, Court No.2, Kannauj, in terms of compromise entered between the parties on 01.02.2020.
(ii) Quash the summoning order dated 27.07.2018 passed by the learned Special Judge (D.A.A.)/Additional Sessions Judge, Court No.2, Kannauj, in Criminal Complaint Case No.105 of 2017 (Shobha Devi Vs. Veerpal and others), under Sections 392, 504, 506, 376, IPC in respect of applicant no.3 and under Sections 392, 504, 506, IPC in respect of applicant nos. 1, 2 & 4, Police Station-Gursahayganj, District Kannauj, in terms of compromise entered between the parties on 01.02.2020."
3. Facts of the case are that the alleged incident took place on 29.05.2017 and again on 04.06.2017 with respect to which the complainant opposite party no.2 filed an application under Section 156(3) Cr.P.C. on 07.06.2017, registered as a Complaint Case No.105 of 2017, under Sections 392, 504, 506, 376, IPC, Police Station Gursahaiganj, District Kannauj, in the Court of learned 4th Additional District & Session Judge/ Special Judge Dacoiti, Kannauj, inter alia on the averments that the applicant nos. 1, 2 and 3 are known criminals, and for last several months the applicant no.3 Veerpal was trying to outrage her modesty and tried to commit rape on her. The applicant nos.1, 2 and 3 forcibly entered in the house of the complainant on 29.05.2017 around 6.00 P.M. and committed 'marpeet' with her husband, and also assaulted the son of the complainant by knife. They received injuries. The applicants threatened the complainant that in case she did not compromise the pending matters, she and her entire family would be killed. On 04.06.2017 the applicants again entered forcibly in the house of the complainant having country made pistol in their hand; they started abusing her; committed loot in her house and the applicant no.3 committed rape upon her and also snatched jewelry and tried to strangulate the complainant's neck.
4. The Magistrate proceeded with the complaint, recorded the statement of the complainant/opposite party no.2 under Section 200 Cr.P.C. and of her witnesses Ram Prakash and Shiva Yadav under Section 202 Cr.P.C. The Magistrate took cognizance on 27.08.2017 and passed the summoning order, whereby the applicant nos. 1, 2 and 4 were summoned under Sections 392, 504, 506, IPC and the applicant no.3 was summoned under Sections 392, 504, 506, and 376, IPC, to face the trial.
5. The applicants have further submitted that on 29.05.2017 the complainant/opposite party no.2 and her family members committed marpeet with the mother of the applicants in which she received injuries. After the incident, one NCR was lodged by the mother of the applicant nos. 1, 2 and 3 on 29.05.2017 itself. The opposite party no.2 and her family members again committed incident dated 30.07.2017 with respect to which the applicant no.4 filed a complaint under Sections 427, 452, 323, 504, 506, 395, 354, 376, IPC, against the opposite party no.2 and her family members registered as Complaint Case No.156 of 2017 (Smt. Renu Vs. Sarvesh and others), in which the statements of the complainant under Section 200 Cr.P.C. and of the witnesses under Section 202 Cr.P.C. were recorded and the matter was pending at the stage of summoning.
6. Earlier, the applicants approached this Court in Criminal Misc. Application under Section 482 No.32985 of 2018(Veerpal and 3 others Vs. State of U.P. and another), for quashing of the entire proceedings of the same Complaint Case No.105 of 2017, aforesaid, on merits, but this prayer for quashment of proceedings was refused by this Court by order dated 20.09.2018.
7. Learned counsel for the applicants submits that during pendency of the proceedings of the complaint case, due to intervention of some respectable members of the society and family members, the parties have entered into compromise on 01.02.2020, which was duly notarized on 13.02.2020, Annexure No.-5; whereby it has been settled between the parties that three cases pending in different Courts at Kannauj, shall be withdrawn/all possible help would be extended to withdraw those cases, and for quashment of the proceedings thereof. The details of those case are as under:-
"(1) S.T. No.105 of 2017, under Section 392, 504, 506, 376, IPC, Police Station Gursahayganj, District Kannauj (Present Case) filed by the opposite party no.2 against the applicants.
(2) Complaint Case No.156 of 2017, under Sections 427, 452, 323, 504, 506, 395, 354, 376, IPC, Police Station Gursahayganj, District Kannauj, filed by the applicant no.4 against the husband and other family members of opposite party no.2.
(3) NCR No.0184 of 2017, under Sections 323, 504, IPC, Police Station Gursahayganj, District Kannauj, in which police had submitted charge sheet in the court of C.J.M., Kannauj."
8. Sri Sharique Ahmed, learned counsel for the applicants has submitted that as both the parties have amicably settled all their disputes, under no fraud, fear, influence, coercion or force or compulsion, the proceedings of the Complaint Case No.105 of 2017, mentioned above, be quashed, by this Court under Section 482 Cr.P.C. He has submitted that the offences are private/personal in nature and would not disturb the public at large nor are against the State. The settlement has been arrived at the initial stage i.e. the stage of summoning and in view thereof the chances of conviction of the applicants are also remote, as no witness would be coming forward to depose against the applicants.
9. Learned counsel for the applicants has placed reliance on the judgment of the Hon'ble Supreme Court in the case of "B. S. Joshi and others Vs. State of Haryana and another", (2003) 4 SCC 67; "Dimpey Gujral and others Vs. Union Territory and others", (2013) 11 SCC 497; "Gian Singh Vs. State of Panjab and another", (2012) 10 SCC 303; in support his contention, that, to prevent the abuse of the process of the Court, the proceedings of the complaint case filed against the applicants deserve to be quashed, in the exercise of inherent jurisdiction to secure the ends of justice.
10. Sri Sharique Ahmed, learned counsel for the applicants has further submitted that the proceedings of the criminal cases in respect of the offences under Sections 376 and 392 IPC can also be quashed on the basis of settlement between the parties. He has placed reliance upon the judgment of this Court, in the case of "Pushpendra Kushwaha Vs. State of U.P. and 2 others" Application under Section 482 No.2095 of 2019, decided on 24.01.2019, and has contended that in the said case the proceedings of sessions trial, under Sections 363, 366, 376, IPC and Section 3/4 of Protection of Children from Sexual Offences Act, were quashed by this Court on the basis of compromise/settlement.
11. Reliance has also been placed on the judgments of different High Courts, in the cases of "Rahul Vs. State of Uttarakhand and others", Criminal Misc. Application No.249 of 2020, decided on 20.02.2020, by the High Court of Uttarakhand; "Manga Singh Vs. State of Panjab and others", Criminal Misc. No. M-19131 of 2016, decided on 01.05.2018, by the High Court of Punjab and Haryana at Chandigarh; "Deepak Vs. State of Haryana and others" CRM-M No. 31825 of 2017, decided on 19.01.2018, by the High Court of Punjab and Haryana at Chandigarh; "Yogesh Soni Vs. State of Haryana and another", C.R.M.-M No.17999 of 2015, decided on 05.11.2015, by the High Court of Punjab and Haryana at Chandigarh; and "Shubham Shankarlal Tolwan Vs. State of Maharastra and others", Criminal Application No. 298 of 2020, decided on 21.07.2020, by the High Court of Bombay, Nagpur Bench, Nagpur; where, the proceedings were also with respect to offence under Section 376 IPC, but the same were quashed, on the basis of the compromise/settlement arrived at by the parties.
12. Sri Ashish Dubey, learned counsel for the opposite party no.2 has submitted that the compromise dated 01.02.2020 was entered into which was notarized on 13.02.2020, by which the parties have amicably settled all their dispute, out of their free will, without any force and as such the proceedings of the complaint case be quashed by this Court, on the basis of the compromise.
13. Learned counsel for both the parties submit that as the proceedings of the criminal case can be quashed, the compromise may be sent to the court of learned magistrate where the complaint case is pending for its verification.
14. Sri Pankaj Sexena, learned AGA appearing for the State has opposed the prayer for quashing of the proceedings of the complaint case on the basis of the compromise. He submits that some of the offences, are non- compoundable and heinous as well; they are not private/personal in nature, affecting only the individuals but they have impact on the society; they are wrong to the society and as such neither the offences can be compounded nor the proceedings can be quashed on the basis of compromise. Learned AGA has placed reliance on the judgments of Hon'ble the Supreme Court in the cases of "Gian Singh Vs. State of Panjab and another", (2012) 10 SCC 303; "Narinder Singh and others Vs. State of Panjab and another", (2014) 6 SCC 466", and "State of Madhya Pradesh Vs. Laxmi Narayan and others", 2019 (5) SCC 688.
15. I have considered the submissions advanced by the learned counsel for the parties and also perused the material on record.
16. The short question which requires consideration is, whether in the exercise of jurisdiction under Section 482 Cr.P.C. the proceedings of the complaint case involving an offence of Rape punishable under Section 376 and Dacoity punishable under Section 392, IPC can be quashed in view of the compromise entered into by the parties ? and if the answer to this question is in affirmative, Whether the proceedings of the complaint case in question, deserve to be quashed, in the exercise of inherent jurisdiction, on the considerations which have been well settled ?
17. Section 482 Cr.P.C. which provides for saving of inherent powers of High Court, reads as under:- "Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
18. The inherent power of the Courts set up by the Constitution is a power that inheres in such Courts being Court of record. This power is vested by the Constitution itself, inter-alia, under Article 215 of the Constitution of India. Every High Court has inherent power to act ex-debito justitiae to do real and substantial justice, for the administration of which alone it exists or to prevent the abuse of the process of the Court. Section 482 Cr.P.C. saves inherent powers of the High Court and it starts with non-obstante clause "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary." The inherent power can be exercised under Section 482 Cr.P.C. (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice.
19. This inherent power possessed by the High Court is of wide plenitude, with no statutory restrictions. The limitations imposed on exercise of such power are the self imposed restrictions. Any provision of the Code cannot limit or affect the inherent powers of the High Court. But, this power, being extraordinary, is required to be exercised sparingly, carefully, with caution, and circumspection and only when such exercise is justified by the tests specifically laid down in Section 482 Cr.P.C. If there is any specific provision in the statute for redressal of grievance, the High Court, ordinarily, refuses to invoke the extraordinary powers, and also, in a situation with respect to the matter where there is a specific bar of law engrafted in the statute. The paramount consideration to the exercise of this power is to prevent the abuse of the process of the Court. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of any specific provision in the statute.
20. Section 320 (1) of the Code provides for compounding of certain offences punishable under Indian Penal Code (IPC ) specified in first two columns of the Table, given there under, by the persons mentioned in the third Column of the table. Sub-Section (2) of Section 320 of the Code, further provides for compounding of certain offences punishable under Indian Penal Code specified in the first two columns by the persons specified in the third column of the table given under Sub-section (2), with the permission of the Court before which any prosecution for such offence is pending. Subsection (9) of Section 320, specifically provides that, "No offence shall be compounded except as provided by this Section" i.e. Section 320 of the Code.
21. Section 320 Cr.P.C. does not come in the way of exercise of inherent power of the High Court for quashment of criminal proceeding. The power of the High Court for quashment of the criminal proceeding is distinct and different from the power given to a criminal Court for compounding the offences under Section 320 of the Code. The inherent power of the High Court is neither restricted nor controlled by Section 320 of the Code. The proceedings of the offences which are non-compoundable can also be quashed by the High Court in exercise of inherent jurisdiction, on the well settled principles, but sparingly and with caution, forming an opinion, on either of the two objectives of securing the ends of justice and to prevent abuse of the process of any Court. This bar of Section 320 Cr.P.C. is attracted only before the Criminal Court, where the prayer for compounding is made. There, only those offences which have been made compoundable, can be compounded and the offences which are non-compoundable cannot be compounded in view of Sub-Section (9) of Section 320 Cr.P.C.
22. In B.S. Joshi & Ors. Vs. State of Haryana & Another, "(2003) 4 SCC 675" the Hon'ble Supreme Court has held that if for the purpose of securing the ends of justice, quashing of F.I.R becomes necessary, section 320 Cr.P.C. would not be a Bar to the exercise of power of quashing. It is, however, a different matter depending on facts and circumstances of each case, whether to exercise or not, such a power. The High Court in exercise of its inherent powers can quash criminal proceedings or F.I.R or complaint and Section 320 Cr.P.C. does not limit or affect the powers under Section 482 Cr.P.C. Paragraph nos. 8, 10, 11 and 15 of B. S. Joshi (Supra) case are being reproduced as under:-.
"8. It is, thus, clear that Madhu Limaye case [(1977) 4 SCC 551 : 1978 SCC (Cri) 10] does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.
10. In State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404] considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that the ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences? The answer clearly has to be in the "negative". It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.
11. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.
15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."
23. In "Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303", the Constitution Bench of the Hon'ble Supreme Court has held as under, in paragraph nos. 51, 52, 53, 54, 55, 56, 57 and 58, which are being reproduced.
"51. Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under IPC which may be compounded by the parties without permission of the court and the composition of certain offences with the permission of the court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable under Section 320, abatement of such offence or an attempt to commit such offence or where the accused is liable under Section 34 or 149 IPC can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the court to which he has been committed or with the leave of the appeal court, as the case may be. The Revisional Court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner.
52. The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code.
53. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, "nothing in this Code" which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e. to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on the High Court; it merely safeguards existing inherent powers possessed by the High Court necessary to prevent abuse of the process of any court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
54. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High 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.
55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.
56. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided.
57. Quashing of offence or criminal proceedings on the ground of 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.
58. Where the High Court quashes a criminal proceeding having regard to the fact 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 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 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."
24. In Gian Singh(Supra) the Hon'ble Supreme Court summed up the position in para no. 61, as under:-
"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. 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 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 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."
25. In "Narinder Singh and Others Vs. State of Punjab and Another (2014) 6 SCC 466", the Ho'nble Supreme Court discussed in detail as to under what circumstances the High Court should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. This judgment laid down certain principles for guidance of the High Court in giving adequate treatment to the settlement between the parties and in exercising its inherent powers under section 482 of the Code. Paragraph no. 29 of the judgment reads 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:
29.1. 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.
29.2. 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.
29.3. Such a power is not to 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 the 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.
29.4. On the other hand, those criminal cases having overwhelmingly and predominantly 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.
29.5. 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.
29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are 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/delicate 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 latter 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.
29.7. 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 to 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."
26. In "Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and others Vs. State of Gujrat and another" (2017) 9 SCC 641 the Hon'ble Apex Court again summarised and laid down principles which emerged from the precedents on the subject, in paragraph no.16 of the judgment, which is as follows:-
"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :
16.1 Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
16.2 The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
16.3 In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
16.4 While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
16.5 The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
16.6 In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
16.7 As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
16.8 Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
16.9 In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10 There is yet an exception to the principle set out in propositions 16.8 and 16.9, above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
27. In "Parbatbhai Aahir (Supra), the Hon'ble Supreme Court held that the High Court was justified in declining to entertain the application for quashing the FIR in exercise of its inherent jurisdiction, as the case involved extortion, forgery, conspiracy, fabrication of documents, utilization of fabricated documents to effectuate transfers of title before the registering authorities and deprivation of the complainant therein of his interest in land on the basis of a fabricated power of attorney, and consequently it was not in the interest of the society to quash the FIR on the ground that a settlement had been arrived at with the complainant. Such offences could not be construed to be merely private or civil disputes but implicated the societal interest in prosecuting serious crime.
28. In "Social Action Forum For Manav Adhikar and Another Vs. Union of India and Others" 2018 (10) SCC 443, the Hon'ble Supreme Court reiterated that a criminal proceeding with respect to offence which is non-compoundable can be quashed by the High Court under section 482 Cr.P.C. When settlements take place, then both the parties can file a Petition under section 482 Cr.P.C and the High Court, considering bona-fide of the Petition shall dispose of the same, keeping in view the law laid down in Gian Singh (Supra).
29. In "State of Madhya Pradesh Vs. Laxmi Narayan and others", reported in 2019 (5) SCC 688, the Hon'ble Supreme Court, again held that the power to quash the criminal proceedings in exercise of power under Section 482 of the Code is not to 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. Paragraph 15 of Laxmi Narayan (Supra) is being reproduced as under:-
"15. 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:-
15.1) 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;
15.2) 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;
15.3) 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;
15.4) 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/delicate 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;
15.5) While exercising the power underSection 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.
30. In Laxmi Narayan(Supra), the High Court had quashed the criminal proceedings for the offences under Section 307 and 34 IPC on the basis of settlement machanically and even when the investigation was under process and some how, the accused managed to enter into a compromise with the complainant and sought quashing of the FIR on the basis of a settlement. In was held that the allegations were serious in nature. Fire arms was used in the commission of the offence. Considereing the gravity of the offence and the conduct of the accused his antecedents, queshment of the FIR on the basis of settlement was held as not sustainable in the eye of law.
31. In "State of Madhya Pradesh Vs. Dhuruv Gurjar and another" Criminal Appeal No. 336 of 2019, arising from SLP(Criminal) No.9859 of 2013, decided on 22.02.2019, the FIR was for the offences under Sections 307, 294, 34 IPC and Section 394 IPC, 11/13 of M.P.D.V.P.K. Act and Section 25/27 of the Arms Act, it was held by the Hon'ble Supreme Court that the offence under Section 307 IPC was not compoundable and was also not a private dispute between the parties interse but was a crime against society and quashing of the proceedings on the basis of the compromise was not permissble. It was further held that it is not in every case where the complainant has entered into a compromise with the accused, there may not be any conviction. In a given case, it may happen that the prosecution still can prove the guilt by leading cogent evidence and examining the other witnesses and the relevant evidence/material, more particularly when the dispute is not a commercial transaction and/or of a civil nature and/or is not a private wrong.
32. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
33. In "Shyam Narain Vs. State (NCT of Delhi)", (2013) 7 SCC 77, the Hon'ble Supreme Court observed that respect or reputation of a women in society shows the basic civility of a civilized society. No member of society can afford to conceive the idea that he can create a hallow in the honour of a women. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society.
34. In "Shimbhu Vs. State of Haryana", (2014) 13 SCC 318, the Hon'ble Supreme Court held that rape is a non compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. Infact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the court to exercise the discretonery power under proviso to Section 376(2) IPC.
35. In "State of Madhya Pradesh Vs. Madan Lal", (2015) 7 SCC 681, the Hon'ble Supreme Court held that rape or attempt to rape are crimes against the body of a women which is her own temple. These are the offences which suffocate the breath of life and sully the reputation. Reputation is the richest jewel one can conecive of in life. No one can allow it to be extuiguished. When a human frame is defiled, the "Purest Treasure" is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner. The Apex Court emphasised that, the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.
36. Thus, it is very well settled that 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. Any compromise between the victim and the offender in relation to such offences, cannot provide for any basis for quashing the criminal proceedings. The inherent power is not to be exercised in those prosecutions which involve heinous and serious offences. Such offences are not private in nature and have a serious impact on society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. The offences under Sections 376 and 392 IPC fall in the category of serious and heinous offences. They are treated as crime against the society and not against individual alone and therefore, the criminal proceeding for the offences under these sections having a serious impact on the society, cannot be quashed in exercise of power under Section 482 of the Code on the ground that the parties have resolved their entire dispute among themselves through compromise/settlement.
37. Rape is an offences against the society. It is not a matter to be left for the parties to compromise and settle. At the cost of repetition, in a case of rape or attempt to rape, the concept of compromise, under no circumstances, can be thought of. The dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement against the honour and dignity of a woman which matters the most.
38. Now I proceed to consider the judgments upon which reliance has been placed by learned counsel for the applicants, other than those which have already been considered above.
39. In Dimpey Gujral (Supra) the proceedings of criminal case which were quashed on the basis of compromise did not involve any heinous offence under Section 376 IPC. It would be so evident from para-8 of the judgment, which is being reproduced as under:-
"In light of the above observations of this court in Gian Singh, we feel that this is a case where the continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the circumstances of the case, FIR No.163 dated 26/10/2006 registered under Section 147, 148, 149, 323, 307, 452 and 506 of the IPC at Police Station Sector 3, Chandigarh and all consequential proceedings arising therefrom including the final report presented under Section 173 of the Code and charges framed by the trial court are hereby quashed."
40. In 'Pushpendra Kushwaha' (supra), the judgment of this Court, the facts were that the prosecutrix and the accused, initially had love affair, they ran away from their house and solemnized marriage. Later, the prosecutrix implicated the accused in her statement under Section 164 Cr.P.C. and hence he was put to trail. The parties, thereafter entered into compromise outside the court. Under those circumstances it was held that, the dispute between the parties had nothing to do with the public law and order. Such dispute was purely of personal nature and there, the compromise was accepted and the proceedings were quashed. The present is not a case of that nature.
41. In Rahul (Supra), the High Court of Uttarakhand quashed the criminal proceedings, in the interest of the victim, and looking from the angle of her welfare who by that time married the accused The judgment in the case of Rahul (Supra), does not show consideration of the judgment of Hon'ble Supreme Court in the cases of Shimbhu (Supra), and Madan Lal (Supra), in which, it has been clearly held that 'in the cases of rape a compromise cannot be thought of' as well as that "some times solace is given that the perpetrator of the crime has acceded to enter into wedlock with the prosecutrix which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case".
42. On facts also this Court finds that in Rahul(Supra), the prosecutrix therein had been in consensual physical relationship with the accused who were adult and the FIR was lodged when the accused therein refused to marry the ptosecutrix. Under the said circumstances, it was held that the consensual physical relationship would not constitute an offence under Section 376 IPC, as there was a clear distinction between rape and consensual physical relationship when the parties who were major had married. The present is not a case of consensual sexual relationship between adults', prosecutrix and the accused.
43. In 'Manga Singh'(supra), the proceedings were quashed on the basis of compromise, keeping in view the peculiar facts of that case, in which the prosecutrix who was major, had solemnized marriage with the accused prior to the registration of the FIR and they were blessed with a son and were living in the matrimonial home in peace and harmony. The complainant, mother of the victim, had accepted that matrimonial alliance. The Punjab & Haryana, High Court considered it just and expedient to allow that petition "without delving on the issue of maintainability of a petition for quashing of an FIR for offfences punishable under Sections 363, 366-A and 376 IPC on the basis of a compromise".
44. In 'Deepak' (supra), the High Court of Punjab & Haryana, although held that the offence under Section 376 IPC is a grievous offence and also against the society at large, and that such matters should not be compromised, still it quashed the proceedings of the criminal case on the basis of the compromise, as the settlement was arrived at immediately after the alleged commission of the offence, taking the view that liberal approach should be adopted in accepting the settlement, to quash the criminal proceedings. This Court is of the view that merely because the parties have arrived at a settlement at the initial stages, the criminal proceedings with respect to heinous offences, like rape etc cannot be quashed. Such a consideration is a relevant consideration for quashment of the proceedings which may be quashed on the basis of compromise in exercise of inherent jurisdiction. This Court, with respect, is not in agreement with the judgment in the case of 'Deepak' (supra), in view of what has been discussed above.
45. The case of 'Shubham Shankarlal Tolwan' (supra), is not a case under Section 376 IPC or 392 IPC. Besides, no proposition of law has been laid down therein.
46. In 'Yogesh Soni' (supra) also, the facts were different. There, the accused had solemnized marriage with the prosecutrix, which was registered with the Registrar of Marriages.
47. Thus the cases on which reliance has been placed by learned counsel for the applicants are of no help to the applicants.
48. The submission of the learned counsel for the applicants that, as the settlement has been arrived at the initial stage, at the stage of summoning, and therefore, it should be accepted in view of the guidelines laid down by Hon'ble the Supreme Court in the case of 'Narendra Singh'(Supra), is misconceived and deserves rejection, in as much as in the present case the offences being of ''Rape' and ''Dacoity' the most heinous offences, the proceedings cannot be quashed on the basis of compromise, irrespective of the stage at which the compromise has been entered, also considering its impact on the society. The stage of entering into compromise is a relevant consideration in proceedings other than those involving serious or heinous offences. The question of stage of the compromise, i.e. the initial stage, looses significance in proceedings involving heinous offences.
49. The submission of learned counsel for the applicants that there are no chances of conviction or such chances are remote and bleak, as no witness would be coming forward to depose against the applicants in view of the compromise, also deserves rejection, in as much, as in the case of ''Dhuruv Gurjar'(Supra), the Hon'ble Supreme Court has held that it is not in every case where the complainant has entered into a compromise with the accused, there may not be any conviction. In a given case, it may happen that the prosecution still can prove the guilt by leading cogent evidence and examining the other witnesses and the relevant evidence/material, more particularly when the dispute is not a commercial transaction and/or of a civil nature and/or is not a private wrong. If the offences against the applicants are not proved in trial, they would be acquitted, but it cannot be said, at this stage, that the prosecution cannot prove the quilt or there may not be any conviction.
50. Further, this Court finds that the application under Section 482 No.32985 of 2018 (Veerpal and 3 others Vs. State of U.P. and another), for quashing of the entire proceedings of the same Criminal Complaint Case No.105 of 2017 (Shobha Devi Vs. Veerpal and others), was dismissed on merits by this Court, vide judgment dated 20.09.2018, and it was thereafter that the compromise has been entered into. As such, the submission that the compromise has taken place at the initial stage cannot be accepted.
51. Any compromise or settlement with respect to the offence of rape, against the honour of a woman, which shakes the very core of her life and tantamounts to a serious blow to her supreme honour, offending both, her esteem and dignity, is not acceptable to this Court.
52. This application/petition under Section 482, for quashment of the proceedings of the complaint case in view of the compromise, deserves to be rejected. It is accordingly, rejected.
53. Learned court below is directed to proceed expeditiously with the said complaint case, in accordance with law, if there is no other legal impediment.
54. No orders as to costs.
55. Let a copy of this judgment be sent to the learned District & Session Judge, Kannauj as well as the court concerned, forthwith.
(Ravi Nath Tilhari,J.) Order Date :- 01.12.2020 VKG