Allahabad High Court
Situ @ Bhuvnesh Kumar And 6 Others vs State Of U.P. And Another on 6 August, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- APPLICATION U/S 482 No. - 10081 of 2021 Applicant :- Situ @ Bhuvnesh Kumar And 6 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Sajiwan Prajapati Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Ram Sajiwan Prajapati, learned counsel for applicants, learned A.G.A. for State and Mr. Anjani Kumar Shahwal, learned counsel, who has put in appearance on behalf of opposite party 2 by filing a counter affidavit along with his vakalatanama in Court today, which is taken on record.
This application under Section 482 Cr.P.C. has been filed challenging charge sheet dated 3.9.2020 submitted in Case Crime No. 100 of 2020, under Sections 354, 323, 504, 506, 376 IPC, P.S. Sikandra Rao, District Hathras, as well as entire proceedings of consequential Case No. 3755 of 2020 (State Vs.Situ alias Bhuvnesh Kumar and others), under Sections 323, 504, 506, 354, 376 IPC, P.S. Sikandra Rao, District Hathras, in view of compromise entered into by parties.
Record shows that in respect of an incident which is alleged to have occurred on 9.3.2020, a delayed F.I.R., dated 18.3.2020 was lodged by first informant/opposite party 2 Sarita Devi @ Seema, which was registered as Case Crime No. 100 of 2020, under Sections 354, 323, 504, 506, 376 IPC, P.S. Sikandra Rao, District Hathras. In the aforesaid F.I.R. seven persons namely Situ @ Bhuvnesh Kumar, Devendra Kumar, Ravi Kumar, Pratap @ Uday Pratap, Manoj @ Mohit, Satya Prakash and Ram Kumari (applicants herein) have been nominated as named accused.
As per prosecution story as unfolded in F.I.R., it is alleged that prosecutrix was married to applicant 2 Devendra Kumar about 8 years ago. However, no issue was born from aforesaid wedlock. On 9.3.2020 at about 1.30 a.m. in the night one Situ @ Bhuvnesh Kumar entered in her room and dislodged her modesty by committing rape upon her. The F.I.R. further states that when prosecutrix tried to raise an alarm, she was assaulted by other accused and they also threatened her for life.
After registration of above mentioned F.I.R., Investigating Officer proceeded with statutory investigation of aforesaid Case Crime Number in terms of Chapter XII Cr. P. C. Statement of first informant/opposite party 2/prosecutrix was recorded by Investigating Officer under Section 161 Cr. P.; C. on 14.5.2020. This was followed by the statement of prosecutrix under Section 164 Cr. P. C. which was recorded on 10.6.2020.
While investigation of above mentioned case crime number was still going on, accused persons for protection of their liberty approached this Court by means of Criminal Misc. Writ Petition No. 6464 of 2020 (Seetu @ Bhuvnesh Kumar and 6 others Vs. State of U.P. and another). Aforesaid writ petition was disposed of finally, vide order dated 26.6.2020, which reads as under:-
"This petition under Article 226 of the Constitution of India has been filed by Seetu @ Bhuvnesh Kumar and 6 Others with a prayer for issuing a writ of certiorari thereby quashing the first information report registered as case crime no. 100 of 2020 under section 354, 323, 504, 506 I.P.C. police station Sikandara Rao District Hathras.
Learned counsel for the petitioners argued that there was matrimonial discard. A notice was issued to informant. Subsequently, a proceeding under section 9 of Hindu Marriage Act was filed before the Principal Judge, Family Court as a result of same this false report was got lodged wherein general allegation of abuse and assault have been levelled against the petitioners other than Seetu @ Bhuvnesh Kumar. Regarding Seetu @ Bhuvnesh Kumar accusation of outraging of modesty of informant is there but nothing such occurred, hence this petition with above prayer.
Learned A.G.A. has vehemently opposed.
On the very perusal of first information report it is apparent that accusation of outraging modesty was confined against Seetu @ Bhuvnesh Kumar and for rest of the petitioners there was general allegation of abuse and assault but no medical report is there. Matrimonial dispute is there and notices have been issued for trial trial.
In all above circumstances, there is ground for grant of protection against arrest of petitioners till submission of police report, if any, under section 173(2) Cr.P.C. provided petitioners cooperate with investigation and do not interfere with evidence.
With above direction this petition is being finally disposed of."
Prosecutrix was medically examined on 3.7.2020. Her medico legal report is on record as Annexure 5 to the affidavit. Ultimately on the basis of material collected by Investigating Officer during course of investigation, he opined to submit a charge sheet against named accused. Consequently, a charge sheet dated 3.9.2020 was submitted by Investigating Officer, whereby named accused have been charge sheeted under Sections 354, 376, 323, 504, 506 IPC.After submission of above noted charge sheet, cognizance was taken upon same by Chief Judicial Magistrate, Hathras, vide Cognizance Taking Order dated 22.9.2020. As a result of above, afore mentioned Criminal Case No. 3755 of 2020 (State Vs.Situ alias Bhuvnesh Kumar and others), under Sections 323, 504, 506, 354, 376 IPC, P.S. Sikandra Rao, District Hathras came to be registered.
Feeling aggrieved by above noted charge sheet as well as proceedings of above mentioned Criminal Case, applicants approached this Court by means of Criminal Misc. Application under Section 482 Cr. P. C. No. 19034 of 2020 (Seetu @ Bhuvesh Kumar and 6 others Vs. State of U.P. and another). Above mentioned application came to be disposed of finally by this Court, vide order dated 25.1.2021. For ready reference, same is reproduced herein under:-
"Heard learned counsel for the applicants, learned AGA for the State and perused the record.
This application under Section 482 CrPC has been filed by the applicants with the prayer to quash the charge-sheet dated 03.09.2020 and entire proceedings of Case No. 3755 of 2020 (State Vs. Seetu @ Bhuvanesh Kumar and others), arising out of Case Crime No. 100 of 2020, under Sections 354, 323, 504, 506, 376 IPC, Police Station Sikandra Rao, District Hathras, pending in the court of CJM, Hathras.
As per the allegations made in the FIR as well as in the statement of the victim recorded under Section 164 CrPC, it is alleged that the victim was married to applicant no.2 Devendra Kumar about eight years back, however, victim could not bear a child. On 09.03.2020 at about 1:30 in the night, co-accused applicant no.1 Seetu @ Bhuvnesh Kumar entered in her room and forcibly committed rape upon her and thereafter, when she was tried to raise alarm, then she was assaulted by other applicants and threatened her for life.
Learned counsel for the applicants has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the applicants and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He has pointed out certain documents and statements in support of his contention.
Per contra, learned AGA has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the applicants and as such, impugned charge-sheet and entire proceedings cannot be quashed.
Moreover, all the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 CrPC. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage.
The prayer for quashing the charge-sheet and entire proceedings is therefore refused.
However, it is directed that if the applicants appear/ surrender before the court below and apply for bail, their prayer for bail shall be considered and decided as expeditiously as possible in accordance with law.
With the aforesaid observations, this application under Section 482 CrPC is finally disposed of."
It appears that subsequent to order dated 25.1.2021, parties amicably settled the dispute outside the Court on the basis of settlement so arrived at between parties. First informant/opposite party 2 Sarita alias Seema submitted an application dated 22.3.2021 before Court below that parties have compromised their dispute. As such, first informant/opposite party 2 does not wish to press her case. As no orders have been passed by Court below on the basis of aforesaid application, applicants, who are charge sheeted accused, have now approached this Court by means of present application under Section 482 Cr. P. C. Learned counsel for applicants contends that present application is second application under Section 482 Cr. P. C. However, in view of changed circumstances as noted herein above, present application is maintainable. It is then contended that dispute between parties is a purely private dispute. Offence complained of is not a crime against society. Parties have amicably settled their dispute outside the Court and on basis of settlement so arrived between parties, first informant/opposite party 2 has filed application dated 22.3.2021 praying therein that in view of compromise so entered into by parties, first informant/opposite party 2 does not wish to contest above mentioned criminal case. Aforesaid application was also supported by an affidavit.
On the aforesaid premise, it is thus urged that no useful purpose shall be served by prolonging proceedings of above mentioned criminal case. Interest of justice shall better be served in case, entire proceedings of above mentioned criminal case are quashed by this Court itself in exercise of its jurisdiction under Section 482 Cr. P. C, instead of relegating the parties to Court below. Mr. Anjani Kumar Shahwal, learned counsel representing opposite party 2 does not oppose present application. He has invited attention of Court to the counter affidavit filed by him and on basis thereof, he contends that compromise entered into by parties is admitted to first informant/opposite party 2. It is then contended that once first informant/opposite party 2 has compromised with accused i.e. applicants herein, she cannot have any grievance in case proceedings of above mentioned case are quashed by this Court.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that offence alleged to have committed by applicant is a crime against society. He, therefore, contends that in view of above, proceedings of above mentioned criminal case cannot be terminated on basis of compromise.
This Court is not unmindful of the following judgements of Apex Court:
1. B.S. Joshi and others Vs. State of Haryana and another (2003)4 SCC 675
2. Nikhil Merchant Vs. Central Bureau of Investigation[2008)9 SCC 677]
3. Manoj Sharma Vs. State and others ( 2008) 16 SCC 1
4. Shiji @ Pappu and Others VS. Radhika and Another, 2011 (10) SCC 705
5. Gian Singh Vs. State of Punjab (2012) 10 SCC 303
6. K. Srinivas Rao Vs. D.A Deepa, (2013) 5 SCC226
7. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466
8. Yogendra Yadav and Ors. Vs. State of Jharkhand and another 2014 (9) SCC 653
9. C.B.I. Vs. Maninder Singh (2016) 1 SCC 389
10. C.B.I. Vs. Sadhu Ram Singla and Others, (2017) 5 SCC 350
11. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and annother, 2017 (9) SCC 641
12. Anita Maria Dias and Ors. Vs. State of Maharashtra and Others, (2018) 3 SCC 290
13. State of M.P. VS. Dhruv Gurjar and Another, (2019) 5 SCC 570
14. State of M.P. V/s Laxmi Narayan & Ors., 2019 (5) SCC 688
15. Rampal Vs. State of Haryana, AIR online 2019 SC 1716
16. Arun Singh and Others VS. State of U.P. and Another (2020) 3 SCC 736 wherein the Apex Court has categorically held that compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. However, Apex Court in State of M.P. Vs. Laxmi Narayan (Supra) that no compromise can be made in respect of offences against society as they are not private in nature. Similarly in Ram Pal Vs. State of Haryana (Supra) it has been held that no compromise can be made in cases relating to rape and sexual assault. Reference may also be made to the decision given by this Court in Shaifullah and others Vs. State of U.P. And another [2013 (83) ACC 278] in which the law expounded by the Apex court in some of the aforesaid cases has been explained in detail.
Recently Apex court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur (Supra) has laid down the following guidelines with regard to quashing of criminal proceedings as well compromise in criminal proceedings in paragraphs 16 to 16.10, which read as under:
"16. The broad principles which emerge fro C-17/2004, under Sections 323, 324, 325, 308, 504, 506 IPC, P.S. Barsethi, District Jaunpur,m 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 aconviction 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."
Apex Court in State of M.P. Vs. Laxmi Narayan and others, (2019) 5 SCC, 688 while dealing with an issue regarding compromise in respect of an offence punishable under Section 307 IPC has observed as under in paragraphs 15.2 to 15.4. Same are reproduced herein 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:
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 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;"
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of record, the Court finds that applicants have been charge sheeted for an offence under Section 376 IPC. The allegations made in F.I.R. have been supported by opposite party 2 in her statement under Section 161 and 164 Cr. P. C. The issue as to whether in a case, where allegation of rape and sexual assault are made can be decided on the basis of compromise or not is no longer res-integra. Reference in this regard is made to judgement of Apex Court in Rampal Vs. State of Haryana, AIRonliine 2019 SC 1716, wherein following has been observed in paragraph 2.
"2. It is brought to our notice that during the pendency of the appeals, both the appellants have paid Rs.1.5 lacks each in favour of the prosecutrix and she has accepted the same willingly for getting the matter compromised. However, it is imperative that we do not accept such compromise in matters relating to the offence of rape and similar cases of sexual assault. Hence the aforesaid compromise is of no relevance in deciding this matter."
Accordingly, no case for quashing of the charge sheet dated 3.9.2020 submitted in Case Crime No. 100 of 2020, under Sections 354, 323, 504, 506, 376 IPC, P.S. Sikandra Rao, District Hathras, as well as entire proceedings of consequential Case No. 3755 of 2020 (State Vs.Situ alias Bhuvnesh Kumar and others), under Sections 323, 504, 506, 354, 376 IPC, P.S. Sikandra Rao, District Hathras, is made out.
In view of above, application fails and is liable to be dismissed.
It is, accordingly, dismissed.
There shall be no order as to costs.
Order Date :- 6.8.2021 HSM