Gauhati High Court
Md. Zenaid Uddin Ahmed @ Md. Zunaid Uddin ... vs The State Of Assam And Anr on 2 March, 2022
Author: Robin Phukan
Bench: Robin Phukan
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GAHC010223392021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./790/2021
MD. ZENAID UDDIN AHMED @ MD. ZUNAID UDDIN AHMED
S/O HAREJ UDDIN AHMED
R/O VILL- GORAIMARI
P.S. ULLUONI,
DIST. NAGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:MISS. SAMSUN NEHAR (actual name witheld)
D/O SAIFUL ISLAM
VILL- KATPARA
P.S. RUPAHIHAT
DIST. NAGAON
ASSA
Advocate for the Petitioner : Mr. M. Saikia
Advocate for the Respondent No.1 : Ms. B. Bhuyan, PP.
No.2 : Mr. S.H. Sikder, Page No.# 2/9 :::BEFORE:::
HON'BLE MR. JUSTICE ROBIN PHUKAN Date of hearing : 15.02.2022 Date of verdict : 02.03.2022 VERDICT (CAV) This application under Section 482 of the Cr.P.C. is preferred by the petitioner, namely, Md. Zenaid Uddin Ahmed @ Md. Zunaid Uddin Ahmed , for quashing of criminal proceeding in P.R.C. Case No. 276/2021, under Sections 366/376 of the IPC arising out of Rupahihat P.S. Case No. 313/2019 pending in the Court of the learned Judicial Magistrate 1st Class, Kaliabor, Nagaon.
2. It is to be noted here that Rupahihat P. S. Case No. 313/2019 under Sections 366/376 of the IPC, has been registered on the basis of one F.I.R. lodged by one, Ms. Sumsun Nehar (actual name withheld)/respondent no.2, on 06.05.2019, to the effect that while she was studying in Kaliabor College, then one Md. Zuniauddin Ahmed, the petitioner, proposed to love her and accordingly, she agreed to the same. Thereafter, on 30.04.2019, while she was proceeding towards her College, the petitioner allured her and took her to the house of his uncle, maternal uncle and aunt. And thereafter, on 05.05.2019 at about 12 pm, the petitioner, on the pretext of dropping her at her residence, took her to the market, under Samguri Police Station and thereafter he left her there and fled away. And during the aforesaid period the petitioner committed rape upon her. On receipt of the F.I.R., the Officer-in-Charge, Kaliabor Police Page No.# 3/9 Station, registered a case, being Kaliabor P.S. Case No. 46/2019 under Sections 366/376 IPC, and endorsed one ASI to investigate the case. But, later on, the same was transferred to the Rupahihat Police Station as the place of occurrence took place in the jurisdiction of Rupahihat Police Station and then the Officer-in- Charge of Rupahihat Police Station registered a case No. 313/2019, under Sections 366/376 IPC and investigated the same. The investigation culminated in submission of charge-sheet against the petitioner under Sections 366/376 IPC, before the court of learned SDJM (M), Kaliabor. Eventually, the learned SDJM (M) Kaliabor, has made over the case to the court of learned Judicial Magistrate 1st Class, Kaliabor. While the case was pending before the Court of learned Judicial Magistrate, 1st Class, the petitioner has effected a compromise with the victim girl/respondent No.2, and thereafter, he approached this Court by filing the present petition for quashing the proceeding of P.R.C. Case No. 276/2021, arising out of Rupahihat P.S. Case No. 313/2019, under Sections 366/376 of the IPC, pending in the court of the learned Judicial Magistrate 1 st Class, Kaliabor, Nagaon, The petitioner has also enclosed one affidavit of the victim girl/respondent No.2, with the petition to the effect that she lodged the F.I.R. due to misunderstanding and that she and the accused attained the age of 18 years and they were in a relationship and due to misunderstanding, she lodge the F.I.R. due to influence of someone else and presently, she got married with another person and leading a peaceful life and she is not willing to pursue the present case.
3. I have heard Mr. M. Saikia, learned counsel for the petitioner and Ms. B. Bhuyan, learned Additional Public Prosecutor for the State of Assam/respondent No. 1 and Mr. S. H. Sikder, learned counsel for the respondent No. 2.
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4. Mr. Saikia, learned counsel for the petitioner submits that the instant case was lodged due to misunderstanding between the petitioner and the respondent No. 2 and that both the petitioner and the respondent No. 2 were in relationship at that time and both are major and on the influence of someone else, the respondent No. 2 lodged the F.I.R. against the petitioner and that they have effected a compromise and the respondent No. 2 also sworn one affidavit to that effect. Mr. Saikia further submitted that the respondent No.2 is not willing to pursue the case against the petitioner as she got married with another person and leading a happy life and therefore, it is contended to allow the petition by quashing the proceeding pending against the petitioner.
5. Mr. S. H. Sikder, learned counsel for the respondent No. 2 also subscribed the submission of the learned counsel for the petitioner and further submits that the respondent No. 2 already got married to another person and leading a peaceful life and that she is not willing to proceed with the matter and therefore, she has no objection in the event of allowing this petition.
6. Whereas, Ms. B. Bhuyan, learned Additional Public Prosecutor for the State respondent no. 1 submits that the petitioner is charge-sheeted under Section 366/376 IPC and the offence under Section 376 IPC is a serious offence and it is against the society and in view of the law laid down by the Hon'ble Supreme Court in catena of decisions, the present petition cannot be allowed and therefore, she has contended to dismiss the same.
7. Having heard the submissions of learned counsel of both sides, I have carefully gone through the petition and documents place on record. It appears that the F.I.R. was lodged at the instance of the respondent No. 2 on Page No.# 5/9 06.05.2019. It is alleged in the F.I.R. that while the respondent No.2 was studying in Kaliabor College, the petitioner, who was also studying in the said college, proposed to love her and she then agreed to the same. Then on 30.04.2019, while she was proceeding to the College, the petitioner allured to marry her and had taken her to the house of his uncle, maternal uncle and aunt. And thereafter, on 05.05.2019 at about 12:00 noon, the petitioner, on the pretext of dropping her to her residence, took her to the market area under Samguri Police Station and there he left her and fled away. It also appears that having taken her to the house of his relatives, the petitioner has committed rape upon her. It also appears that upon the receipt of the said F.I.R., the Officer-in- Charge, Kaliabor P.S. registered a case, being Kaliabor P.S. Case No. 46/2019, under Sections 366/276 IPC, and thereafter, the same was transferred to Rupahihat Police Station as the place of occurrence falls under the jurisdiction of the said Police Station. Then, the Officer-in-Charge of Rupahihat Police Station registered a case No. 313/2019, under Sections 366/376 IPC, and endorsed one S.I., namely Shri Guru Prasad Talukdar, to investigate the same. The Investigating Officer then visited the place of occurrence, examined the witnesses, and on completion of investigation and having found made out a prima-facie case under Sections 366/376 IPC laid Charge-sheet against the petitioner to stand trial in the Court under the said sections of law.
8. It also appears that while the case was pending before the Court of the learned Judicial Magistrate, 1st Class, the petitioner approached this Court by filing the present petition on the ground that the matter has been compromised between the parties and that the respondent No. 2 has filed one affidavit to the effect that she is not willing to pursue the matter as she got married with Page No.# 6/9 another person and is leading a happy married life with that person, and that at the time of occurrence, she and the petitioner both were in a relationship and they were major and out of misunderstanding and also due to influence of someone else she lodged the F.I.R. The learned counsel for the respondent No. 2 also fairly admitted aforesaid factual position and submits that the respondent No. 2 has no objection in the event of allowing the petition.
9. Now the question is whether the proceeding under Sections 366/376 IPC can be quashed on the basis of the affidavit submitted by the petitioner. As already stated here in above, the learned Additional Public Prosecutor has opposed the petition on the ground that the offence is serious in nature and the same is against the society also. It is to be noted here that while dealing with the issue of quashing of the proceeding on the basis of compromise, Hon'ble Supreme Court in the case of Gian Singh v. State of Punjab reported in (2012) 10 SCC 303, has held as under:
"...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 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 victim's 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 Page No.# 7/9 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 pre-dominatingly 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.
10. And thereafter, discussing several of its case laws, Hon'ble Supreme Court in the case of the State of Madhya Pradesh vs. Laxmi Narayan and Ors., reported in (2019) 5 SCC 688, has held as under:
(i) 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;
(ii) 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;
(iii) similarly, such power is not to be exercised for the offences under the Page No.# 8/9 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;
(iv) 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/delegate 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;
(v) while exercising the power under Section 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 impact 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.
11. The legal proposition, that can be crystallized from the discussion here in above is that the power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised to quash the criminal proceedings which involved Page No.# 9/9 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.
12. Here in this case the petitioner is charge-sheeted under section 366/376 IPC. The offences are not private in nature. They are serious offence and mental depravity is involved in the same and it has serious impact in the society. And therefore, it cannot be said that it is in the interest of the society to quash the criminal proceeding against the petitioner who is involved in the offence of such a serious nature. While the submission of learned counsel of the petitioner and respondent No.2 are considered in the light of aforesaid discussion, the same left this court unimpressed.
13. Thus, applying the ratios laid down by the Hon'ble Supreme Court in the case of Gian Sing (Supra) and also in the case of Laxminarayan (supra) to the facts and circumstances here in this case, I am of the considered opinion that this is not a fit case where the power under Section 482 of the Code of Criminal Procedure, 1973 Cr.P.C. can be invoked to quash the proceeding against the petitioner.
14. In the result, I find no merit in this petition and accordingly, the same stands dismissed. Interim order, if any, stands vacated. The parties have to bear their own cost.
JUDGE Comparing Assistant