Orissa High Court
Siba And Ors. vs State Of Orissa And Anr. on 2 September, 2005
Equivalent citations: 2006CRILJ80, 2006 CRI. L. J. 80, 2006 (1) AJHAR (NOC) 97 (ORI), 2006 (2) ABR (NOC) 243 (ORI), (2005) 32 OCR 473
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Heard.
2. Petitioners pray to quash the criminal proceedings registered as G. R. Case No. 1263 of 2004 of the Court of S. D. J. M., Berhampur on the ground that the prosecutrix Jamuna Jani voluntarily went and cohabited with the petitioner No. 6 Gouranga Behera and they have got married. Petitioners further state that because of such circumstance learned Sessions Judge allowed accused Gouranga to go on bail as per order dated 6-1-2005 in Bail Application No. 857 of 2004. Petitioners thus state that no useful purpose will be served by continuing the criminal proceeding when the prosecutrix is staying with the accused persons. Accordingly they have applied to this Court to invoke the inherent power and to quash the aforesaid criminal proceeding.
3. Annexure-1 is the certified copy of the F.I.R. It appears from that document that prosecutrix has been described to be a girl aged 15 years by the date of occurrence. It. is alleged in the F.I.R. that she was kidnapped by accused Gouranga and the latter raped her and detained her for two months and thereafter only took her to his house. The father of accused Gouranga refused to accept her as the daughter-in-law in the absence of dowry. Father of the prosecutrix, under the given circumstance, left her again in the custody of the accused with dowry articles, but the accused persons did, not accept her.
4. Whether there is consent or no consent, kidnapping of a minor girl from the lawful custody of the guardian is punishable under Section 376-A. I.P.C. so also the offence under Section 376. IP.C. Such offences are offences both against the individual and the society. Such offences arc not compoundable in nature. If a minor girl is kidnapped, raped and compelled to marry, then there is perhaps no other way for such a girl and her parents to agree to the terms of the accused of the crime, Quashing of such a criminal proceedings may or may not ensure to the benefit of the prosecutrix in the long run, but compounding of such type of offences amounts to a dis-service to the society in as much as by invoking the inherent power the High Court tend to protect an accused who committed such heinous crime.
To other offence is under Section 4 of the Dowry Prohibition Act, 1961 (in short 'the Act, 1961'). 'Section 8(2) of that Act read with the Orissa Amendment by Orissa Act -1 of 1976 reads as hereunder :
(2) Save as otherwise provided, other offence under this Act shall be bailable and non-compoundable.
It is thus clear that be it under Section 320 so far as the offence of kidnapping and rape of minor girl or offence under Section 4 of the Act, 1961, are not compoundable in nature. Wisdom of the legislature is based not on an individual gain but the protection of the society. Such wisdom should not be neutralized or negatived by invoking the inherent power to grant protection to the accused of the offence of kidnapping, rape and dowry.
5. As noted above, persons accused of committing such type of heinous crimes if are granted protection by quashing the criminal proceeding simply because the victim of kidnapping and rape was accepted as wife of the rapist, then quashing of the criminal proceeding will send a very bad and distasteful signal to other persons in the society and some of them may be encouraged to commit similar type of offences because of no fear of a criminal proceeding against them once they managed to compel the prosecutrix for marriage. That aspect cannot be lost sight of while considering an application under Section 482 of the Cr. P.C. In a case of the present nature, the provision of law in IPC or Cr. P.C. does not provide for protection to the victims. Such provision of law only provides law to deal with crime and criminal cases and the offenders thereof. If a person adopts unlawful means of kidnapping and rape to reach to his goal of getting the victim as his wife, then he should pay the price of facing a criminal trial instead of protection under Section 482, Cr. P.C. Relief, which the petitioners seek, being specifically prohibited under Sub-section (9) of Section 320, Cr. P.C., such relief should not be granted to the petitioners by Invoking the inherent power.
6. Learned counsel for the petitioner states that the chance of conviction is bleak and, therefore, Court should not make efforts to continue with a redundant criminal proceeding. The argument is attractive but devoid of any legal substance. It is so, because in course of the trial prosecutrix is subject to examination by the prosecution and also of putting leading questions in case she resiles from her original statement, and apart from that other direct and circumstantial evidence may be available to substantiate the charge. On the other hand, if that is the sole logic for quashing of a criminal proceedings, then in case a murder has taken place or dacoity committed, if persons victim of such crime or eye-witnesses of such occurrence compromise, should it be wise to nip at the bud a criminal proceeding by invoking inherent power? In the view of this Court if such a course is adopted, then perhaps it is the muscles power which will determine whether or not a trial should be undertaken in a criminal proceeding of any offence whatsoever provided under the criminal law and, if that is the parameter adopted then perhaps the Parliament or the State Legislature, as the case may be, should come forward with specific law so that criminal proceeding pending in the Court involving heinous offences like murder, dacoity, rape, kidnapping, highway robbery, etc, may be disposed of on the application of accused on the assumption that because of the changing version of the eye-witness placed before the Court in the shape of affidavit no useful purpose would be served to continue with the criminal proceeding. Then, as this Court foresee, the country will be ruled not by the law but by persons having muscels and/or money power with the fear of no trial or punishment for a crime committed. At present, in the absence of any law in the above-indicated manner this Court is not Inclined to invoke inherent power in favour of the petitioners on the surmise that the criminal case would end in acquittal. Consequence of a criminal trial should not be predicted by making surmises, A trial should come to Its logical conclusion in accordance with law, as provided in the Code of Criminal Procedure.
7. For reasons indicated above, this Court finds no justification to invoke the inherent power in favour of the petitioner so as to quash the criminal proceeding. § Accordingly, the application under Section 482 Cr. P.C. is rejected and the Criminal Misc. Case is dismissed.