Ajay Kumar Verma @ Pankaj vs Ut Of J&K Through Sho Police on 9 May, 2023

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Jammu & Kashmir High Court

Ajay Kumar Verma @ Pankaj vs Ut Of J&K Through Sho Police on 9 May, 2023

1. By invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (hereinafter referred as to the „Code‟), petitioner by the instant petition seeks quashment of the Charge-sheet No. 33/2021 titled UT of J&K vs Ajay Kumar @ Pankaj pending before the Court of learned Special Judge POCSO cases Jammu, arising out of FIR No. 0068/2021 dated 03.04.2021 registered against him in Police Station Bishnah District Jammu for the commission of offences punishable under sections 7 and 8 of the Protection of Children from Sexual Offences Act 2012 (for short „the POCSO Act‟).

2. It is averred, that petitioner is serving in Indian Army and is known in the Army for his good character/good human being, there has not been a single complaint of any sort or nature against him from any person till date, petitioner has friendly relation with respondent No.2 as he is also living in the same vicinity where the family of the petitioner is living, that 2 CRM(M) No. 449/2021 respondent No.2 by projecting certain urgent and emergent domestic exigency arising due to frequent lockdowns due to COVID-19 pandemic borrowed money amounting to Rs. 1.25 lacs from the petitioner with the condition that the same shall be returned by respondent No.2 in the beginning of January 2021, that the petitioner right since January 2021 time and again reminded respondent No.2 for return of the money but he on one pretext or the other remained dilly delaying the return of the money back to the petitioner and on 23.03.2021, the petitioner came to his home after obtaining leave, requested respondent No.2 to return the amount borrowed by him, but he adopted same dilly delaying tactics. It is averred, that on 03.04.2021 respondent No.2 invited the petitioner at his residence around 7.30 pm to the collect the money which he has borrowed from the petitioner, petitioner in good faith visited his residence and on reaching there, the respondent No.2 was not present whereas his wife, his daughter and his son were present there, petitioner was attended properly by the wife of respondent No.2 and after waiting for about an hour when respondent No.2 did not return back, the petitioner left the house respondent No.2, that respondent No.2 and his wife in order to get rid of the petitioner and his efforts to retrieve back the money advanced to the complainant, hatched a criminal conspiracy and in this behalf by inducting his minor daughter as alleged victim, got the petitioner involved in a criminal case under the Protection of Children from Sexual Offices Act, 2012 and on 03.04.2021, respondent No.2 lodged a highly false, baseless and vexatious complaint with Police Station Bishnah alleging therein that the petitioner had visited his residence in his absence and allegedly forcibly grabbed his minor daughter and pressed her breast, the minor daughter narrated the incident to her mother i.e wife of respondent No.2, with these allegations, the complaint was filed and the police of Police Station Bishnah without undertaking any preliminary enquiry and believing the allegations as contained in the complaint as gospel truth, straightway registered the impugned FIR containing same set of allegations as were indicated in the complaint filed by respondent No.2. It is moreso averred, that immediately with the registration of FIR, the petitioner was arrested, the petitioner filed bail application before the Court of learned Special Judge POCSO Cases Jammu which was rejected 3 CRM(M) No. 449/2021 vide order dated 29.04.2021, that during the period the petitioner was facing incarceration in jail, respondent No.2 has sworn an affidavit on 28.06.2021 duly attested before Special Excise Mobile Magistrate Jammu in which he has admitted that due to misinformation, miscommunication and in a complete haste without proper understanding, he approached the police station with a complaint against the petitioner, in the said affidavit, respondent No.2 has admitted that he is swearing the said affidavit for dropping of the proceedings against the petitioner, thereafter the petitioner again approached before the Court of learned Special Judge POCSO Cases Jammu, the said Court keeping in view the affidavit sworn by respondent No.2 admitted the petitioner to bail vide order dated 16.07.2021. It is prayed, that the instant petition be allowed and the charge sheet titled UT of J&K vs Ajay Kumar @ Pankaj pending before the Court of learned Special Judge POCSO Cases Jammu arising out of FIR No. 0068/2021 dated 03.04.2021 registered against the petitioner in Police Station Bishnah District Jammu for the commission of offence punishable under sections 7/8 of POCSO Act may kindly be quashed.

3. Vide order of this Court dated 06.10.2021 learned counsel for respondent No.2 stated before this court that the parties have amicably settled the disputes/issues at their own level, pursuant thereto, counsel for petitioner and respondent no. 2 were directed to get the statements of parties recorded before Registrar Judicial of this Court. Vide order dated 31.03.2023, learned counsel for the petitioner was also directed to get the statement of petitioner recorded before the Registrar Judicial of this Court. The petitioner has supported the averments of the petition by an affidavit.

4. Pursuant to the orders dated 06.10.2021 and 31.03.2023, the Registrar Judicial has recorded the statements of the parties, the same are placed on record which read as under:-

Statement of Akashdeep Sharma (respondent No.2); Age; 37; S/o Late Sh. Manohar Lal Sharma R/o Lower Kanhal, Tehsil Bishnah, District Jammu on oath today i.e 22.11.2021;

"Stated, that I filed a complaint against the petitioner-Mr. Ajay Kumar Verma @ Pankaj in Police Station Bishnah which came to be registered as FIR No. 0068/2021 dated 03.04.201 for the offences punishable u/s 7 and 8 of Protection of Children from Sexual Offences Act, 2012. After filing the complaint, I enquired about the entire incident and came to know that petitioner-Ajay Kumar Verma has not committed any such offence. The 4 CRM(M) No. 449/2021 complaint before the Police Station, Bishnah has been lodged by me due to misinformation, miscommunication and in complete haste without proper understanding. I have also executed an affidavit in this regard before the Excise Magistrate, Jammu on 28.06.2021. I have no objection in case Hon‟ble Court quashes the FIR No. 0068 of 2021 dated 03.04.2021 registered with Police Station, Bishnah, District Jammu for commission of offences punishable under section 7 and 8 of Protection of Children from Sexual Offences Act, 2012."

Statement of Ajay Kumar Verma @ Pankaj (petitioner); Age; 37 years; S/o Kasturi Lal R/o Chak Waziro, Tehsil Bishnah, District Jammu on oath today i.e 31.03.2023;

"Stated, that respondent No.2-Akashdeep Sharma filed a complaint against me in Police Station Bishnah which came to be registered as FIR No. 0068/2021 dated 03.04.2021 for the offences punishable u/s 7 and 8 of Protection of Children from Sexual Offences Act, 2012. While I was facing incarceration in jail, respondent No.2-Akashdeep Sharma had sworn an affidavit before the Court of Excise Magistrate of his own on 28.06.2021 wherein he stated that I have not committed any such offence and he had enquired about the entire incident and got the knowledge that the entire story as mentioned in the FIR No. 0068/2021 is false and it was lodged due to misinformation, miscommunication and in complete haste without proper understanding. He further submitted in the affidavit to drop the proceedings against me as the allegations leveled against me are purely due miscommunication and misunderstanding. That when I have filed the instant petition for quashing of FIR as well as the charge sheet and arrayed him as respondent No.2, he appeared before the Hon‟ble High Court of his own and prayed the Hon‟ble High Court to quash the FIR No. 0068/2021 as well as chargesheet arising out of the same FIR. Hon‟ble High Court on 06.10.2021 directed respondent No.2 to get his statement recorded before the Registrar Judicial and place the same on record as the parties have entered into compromise. The respondent No.2 got the statement recorded on 22.11.2021 in which he had reiterated the same stand which he had taken in the affidavit and had categorically stated that he has no objection in case the Hon‟ble Court quashes the FIR No. 0068/2021 dated 03.04.2021 registered with Police Station Bishnah, District Jammu. Since I have not committed any such offence as mentioned in the aforesaid FIR and I and respondent No.2 have good family relations, which exists as on date. So in view of statement of respondent No.2 as well as compromise between the parties, I pray before the Hon‟ble Court to quash the aforesaid FIR No. 0068/2021 dated 03.04.2021 and consequent challan pending before the POCSO Court."

5. In a case titled, "Gian Singh Vs. State of Punjab and Another" [2012 (10) SCC 303] while considering the aspect of whether the High Court has power to quash the proceedings when some of the offences alleged to have been committed are non-compoundable, the Apex Court has observed as follows:

5 CRM(M) No. 449/2021

"57. 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 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".

6. Hon‟ble Supreme Court of India in a case titled "Kapil Gupta vs State of NCT of Delhi &Anr.", decided on 10.08.2022 in Criminal Appeal No. 1217 of 2022 and SLP(Crl.) No. 5806 of 2022, while quashing FIR in rape 6 CRM(M) No. 449/2021 case u/ss 376 IPC and observing that as compromise has occurred between the parties, charges are yet to be framed, and if trial is permitted to go, it will end in nothing else than an acquittal, in paras 12, 13, 14, 15, 16, 17 & 18 held as under:-

12. No doubt that the learned ASG is right in relying on various judgments of this Court which reiterate the legal position that in heinous and serious offences like murder or rape, the Court should not quash the proceedings. It will be relevant to refer to paragraph 29.5 to 29.7 of the judgment of this Court in the case of Narender Singh versus State of Punjab, which read thus:

"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/delegate 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 7 CRM(M) No. 449/2021 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 chargesheet 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 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."

13. It can thus be seen that this Court has clearly held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Court has also to take into consideration as to whether the settlement between the parties is going to result into harmony between them which may improve their mutual relationship.

14. The Court has further held that it is also relevant to consider as to what is stage of the proceedings. It has been observed that if an application is made at a belated stage wherein the evidence has been led and the matter is at the stage of arguments or judgment, the Court should be slow to exercise the power to quash the proceedings. However, if such an application is made at an initial stage before commencement of trial, the said factor will weigh with the court in exercising its power.

15. The facts and circumstances as stated hereinabove are peculiar in the present case. Respondent No.2 is a 8 CRM(M) No. 449/2021 young lady of 23 years. She feels that gong through trial is one case, where she is a complainant and in the other case, wherein she is the accused would robe the prime of her youth. She feels that if she is made to face the trial rather than getting any relief, she would be faced with agony of undergoing the trial.

16. In both the cases, though the charge sheets have been filed, the charges are yet to be framed and as such, the trial has not yet commenced. It is further to be noted that since the respondent No.2 herself is not supporting the prosecution case, even if the criminal trial is permitted to go ahead, it will end in nothing else than an acquittal. If the request of the parties is denied, it will be amounting to only adding one more criminal case to the already overburdened criminal courts.

17. In that view of the matte, we find that though in a heinous or serious crime like, rape, the Court should not normally exercise the powers of quashing the proceedings, in the peculiar facts and circumstances of the present case and in order to give succor to respondent No.2 so that she is saved from further agony of facing two criminal trials, one as a victim and one as an accused, we find that this is a fit case wherein the extraordinary powers of this Court be exercised to quash the criminal proceedings.

18. In that view of the matter, the appeal is allowed and proceedings in the criminal cases arising out of following FIRs are quashed and set aside: 1. FIR No.569/2020 registered at Police Station, Mehrauli, New Delhi (Rape) 2. FIR No.824/2020, registered at Police Station, Mehrauli, New Delhi (Extortion).

7. Ratio of the judgment of Kapil Gupta‟s case (supra) makes the legal proposition abundantly clear, that the High Court has inherent powers under Section 482 of Cr.P.C to quash the proceedings to meet the ends of justice subject to the parameters that, if the parties have settled their disputes amicably by a compromise even in a heinous and serious offence of rape, if the application/petition is made at an earliest stage even though charge sheet has been filed but charges are yet to be framed and trial has not commenced, and even if the criminal trial is permitted to go ahead it will end in nothing else than an acquittal. Ratio of the judgments (supra) squarely apply to the facts of the case in hand. Bare perusal of the statements of petitioner and respondent No.2 placed on record demonstrate that the parties have entered into a compromise whereby they have settled their disputes/issues, so there would be no chance of conviction of accused in near future in case trial is held and concluded.

9 CRM(M) No. 449/2021

8. In view of the above, this petition stands allowed. Consequently, Charge-

sheet/challan No. 33/2021 titled "UT of J&K vs Ajay Kumar @ Pankaj", arising out of FIR No. 0068/2021 dated 03.04.2021 registered against the petitioner in Police Station Bishnah District Jammu for the commission of offences punishable under sections 7/8 of the Protection of Children from Sexual Offences Act 2012, pending before the Court of learned Special Judge POCSO Cases Jammu, in view of compromise arrived at between the parties, is quashed.

9. Disposed of accordingly along with all connected CM(s).

10. Copy of this order be sent to the Court of Learned Special Judge POCSO Cases, Jammu for information and compliance.

(Mohan Lal) Judge Jammu:

09.05.2023 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

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