Gujarat High Court
Minor Sabahat D/O Sultan Pathan Thro ... vs State Of Gujarat on 4 December, 2020
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.MA/16466/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16466 of 2020
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MINOR SABAHAT D/O SULTAN PATHAN THRO SULTAN AMANKHAN
PATHAN
Versus
STATE OF GUJARAT
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Appearance:
RAFIK LOKHANDWALA(5590) for the Applicant(s) No. 1
MS URVASHIDEVI N MISHRA(10174) for the Respondent(s) No. 2
MS MOXA THAKKER APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 04/12/2020
ORAL ORDER
1. Heard Mr.Rafik Lokhandwala, learned advocate for the applicant, Ms.Moxa Thakker, learned APP for the respondent - State and Ms.Urvashidevi Mishra, learned advocate for respondent no.2 through video conferencing.
2. By invoking the provisions of Section 482 of the Criminal Procedure Code, 1973, the applicant has sought relief to quash and set aside the impugned FIR being C.R.No. 11191067200121 of 2020 registered with Cyber Crime Police Station, Ahmedabad City dated 08.08.2020 for the offence punishable under Sections 12, 14 of the Protection of Children from Sexual Offences Act, 2012, Sections 66-C, 67 of the Information Technology Amendment Act, 2008 and Section 354D of the Indian Penal Code.
3. Mr.Rafik Lokhandwala, learned advocate for the applicant has submitted that the offence registered against the applicant is under Sections 12, 14 of the Protection of Children from Sexual Offences Act, 2012, Sections 66-C, 67 of the Information Technology Amendment Act, 2008 and Section 354D of the Page 1 of 6 Downloaded on : Sun Dec 06 01:09:12 IST 2020 R/CR.MA/16466/2020 ORDER Indian Penal Code. While referring to the aforesaid provisions, he has submitted that the offences are punishable only for three years. He has submitted that the convict as well as present applicant are friends and minor and if the FIR is not quashed, it may affect them on all counts in their entire life. He has prayed to allow the present petition.
4. Ms.Urvashidevi Mishra, learned advocate for respondent no.2 has supported the submissions of the learned advocate for the applicant.
5. Per contra, Ms.Moxa Thakker, learned advocate for the respondent - State has vehemently opposed the grant of the present petition. She has submitted that considering the seriousness of the offence, the prayer may not be granted.
6. In the case of Gian Singh V/s. State of Punjab and another reported in (2012)10 SCC 303, the Hon'ble Apex Court, in para 61, laid-down the following proposition of law while distinguishing Section 482 from Section 320 of the Code of Criminal Procedure. The Hon'ble Apex provided the illustrative category of cases suitable for settlement and it was observed that heinous crimes like robbery, dacoity and rape etc. cannot be settled and suitability of the cases for settlement will depend upon the facts of each individual case. It was held that even the cases which are not compoundable under Section 320 of the Code of Criminal Procedure, can be settled under Section 482 of the Code, if the High Court finds the element of settlement. Para 61 reads 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 Page 2 of 6 Downloaded on : Sun Dec 06 01:09:12 IST 2020 R/CR.MA/16466/2020 ORDER inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victims family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
7. Now, the provisions of Sections 12 and 14 of the Protection of Children from Sexual Offences Act, 2012 reads as under:-
Page 3 of 6 Downloaded on : Sun Dec 06 01:09:12 IST 2020R/CR.MA/16466/2020 ORDER "12. Punishment for sexual harassment. - Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
14. Punishment for using child for pornographic purposes. - (1) Whoever, uses a child or children for pornographic purposes shall be punished with imprisonment of either description which may extend to five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also be liable to fine.
(2) If the person using the child for pornographic purposes commits an offence referred to in section 3, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(3) If the person using the child for pornographic purposes commits an offence referred to in section 5, by directly participating in pornographic acts, he shall be punished with rigorous imprisonment for life and shall also be liable to fine.
(4) If the person using the child for pornogrphic purposes commits an offence referred to in section 7, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than six years but which may extend to eight years, and shall also be liable to fine.
(5) If the person using the child for pornographic purposes commits an offence referred to in section 9, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than eight years but which may extend to ten years, and shall also be liable to fine.
8. Now, the provisions of Sections 66C and 67 of the Information Technology Act, 2000 reads as under:-
"66-C. Punishment for identity theft. - Whoever, fradulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.
67. Punishment for publishing or transmitting obscene material in electronic form. - Whoever publishes or transmits or Page 4 of 6 Downloaded on : Sun Dec 06 01:09:12 IST 2020 R/CR.MA/16466/2020 ORDER causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees."
9. In view of the aforesaid provisions of law, it is clear that the offences are punishable only for three years. It is an admitted fact that the victim as well as the present applicant are minor and both are friends and settlement has been arrived at between the parties with a view to safeguard the future life of both of them. It also reveals from the affidavit of the original complainant - Altafhussain @ Raeesbhai s/o. Idrsihbhai Talwani that the settlement has been arrived at between the parties without any fraud, coercion, threat or force. At this stage, the averments made in the affidavit of the complainant requires to be reflected which reads as under:-
"2. I state that the complaint was lodged by me out of misunderstanding, misconception and anxiety. It is stated that my daughter and the present applicant, both are minor girls, students and friends, they have their bright future ahead and the present FIR would create the obstacle in the future of both the children and therefore, due to the intervention of the parents of both minor girls, family members, relatives and friends, an amicable settlement has arrived at between the accused and the complainant, who have agreed to settle the dispute permanently by way of an amicable settlement for the future of their children.
3. I further stated that the compromise has taken place between both the parties without any fraud, coercion, threat or force and the parties are bound to respect the same.
4. Therefore, I accord my consent to this Hon'ble Court to quash the criminal complaint being F.I.R.Page 5 of 6 Downloaded on : Sun Dec 06 01:09:12 IST 2020
R/CR.MA/16466/2020 ORDER No.11191067200121 of 2020 dated 8.8.2020 under sections 14, 12 of the Protection of Children from Sexual Offences Act, sections 66 - C, 67 of the Information Technology Amendment Act, 2008 and section 354D of the Indian Penal Code registered with Cyber Crime Police Station, Ahmedabad City and all supplemental, incidental and consequential proceedings arising pursuant to the said F.I.R against the petitioner accused, which would serve the purpose of justice."
10. Now, considering the facts and circumstsances of the case, which is peculiar in nature, this Court is of the considered opinion that to save the future life of both the minor girls who are friends, the settlement is required to be acknowledged and the petition is required to be allowed. No useful purpose would be served to continue with the proceedings and if continued, it would be nothing but a futile exercise.
11. Accordingly, the settlement is acknowledged and the FIR being C.R.No. 11191067200121 of 2020 registered with Cyber Crime Police Station, Ahmedabad City dated 08.08.2020 for the offence punishable under Sections 12, 14 of the Protection of Children from Sexual Offences Act, 2012, Sections 66-C, 67 of the Information Technology Amendment Act, 2008 and Section 354D of the Indian Penal Code and all connected proceedings arising therefrom, qua the present applicant, are quashed. Rule is made absolute. Direct service through fax, email and/or any other suitable electronic mode is permitted. The necessary writ be sent all the concerned.
12. As the present matter is based on peculiar facts and circumstances, this order may not be treated as precedent.
(DR. A. P. THAKER, J) VARSHA DESAI Page 6 of 6 Downloaded on : Sun Dec 06 01:09:12 IST 2020