Allahabad High Court
Durgesh Chauhan And 4 Others vs State Of U.P. And Another on 17 May, 2023
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:109224 Court No. - 68 Case :- APPLICATION U/S 482 No. - 6053 of 2020 Applicant :- Durgesh Chauhan And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shad Khan,Chandra Prakash Singh Counsel for Opposite Party :- G.A.,Krishna Kant Singh Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Shad Khan, learned counsel for the applicants, Mr. Amit Singh Chauhan, learned AGA-I for the State and perused the records. None appears on behalf of opposite party even in the revised calling of the list.
This application under Section 482 Cr.P.C. has been filed to quash the charge sheet dated 28.09.2019 as well as cognizance order dated 30.10.2019 in Special Session Trial No. 534 of 2019 (State Vs. Durgesh Chauhan and others) arising out of Case Crime No. 0099 of 2019, under sections 363, 366, 504, 506, 376 IPC and Section 3, 4, 16, 17 of POCSO Act, Police Station Kothibar, District Maharajganj pending before the Court of learned Additional Sessions Judge-I, Maharajganj.
As FIR was lodged against the applicant no. 1 and his family members with the allegation that the applicant no. 1 had enticed away the minor daughter of the informant and she has been sexually exploited by him. The matter come up before this Court on 08.06.2020 and the co-ordinate Bench of this Court passed following order:-
"Heard learned counsel for the applicant, learned AGA for the State and perused the material brought on record.
Claim is that no offence is made out, which claim has been raised on the various averments contained in the affidavit. Prosecution claims that the matriculation certificate gives date of birth of the victim as 15th June, 2001 and the incident took place short of the period of 18 years in April, 2019. However, no incriminating specific material is coming forth in the statement of the victim recorded under Section - 164 Cr.P.C.
Now, claim is that the victim is residing with applicant no.1 and her state being minor would not come in the way of the applicants for the reason that assuming it to be that she is minor even then she is just on the verge of attaining majority (only two months short of her majority) and it cannot be said that she is unable to understand her well being and it is settled law that in case any minor is found to be safe and has developed understanding of her safety and security and securing her future, then minority alone would not count for any offence under Sections - 363, 366, 376 I.P.C., if the circumstances are genuinely placed and no force is applied.
The submission made by learned counsel for the applicant prima facie appears to have some substance. The matter requires consideration after receiving response from opposite parties.
Learned AGA has accepted notice on behalf of opposite party no.1. He prays for and is granted four weeks' time to file counter affidavit.
Issue notice to opposite party no.2 who may file counter affidavit within the same period.
Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List on expiry of the aforesaid period.
Till the next date of listing, further proceedings of Special Session Trial No. 534 of 2019 (State vs. Durgesh Chauhan and others) arising out of Case Crime No. 0099 of 2019, under Sections - 363, 366, 504, 506, 376 I.P.C. & Sections - 3, 4, 16, 17 of POCSO Act, Police Station - Kothibar, District - Maharajganj, pending before the Court of learned Additional Session Judge-I, Maharajganj shall remain stayed."
The aforesaid interim order was extended on 05.01.2023 and then subsequently on 23.03.2023.
In compliance of the order of the Court dated 09.05.2023, daughter of opposite party no. 2 namely Neelu Yadav and applicant no. 1 namely Durgesh Chauhan are present alongwith two children, who are four years and one year old, in the Court today, who have been identified and signatures have also been attested by their respective counsel.
On query being raised, the daughter of opposite party no. 2 namely, Neelu Yadav has stated that she has married the applicant no. 1 out of her own sweet will and is living happy married life. Out of their wedlock, they are blessed with two children, who are presently four years and one year old. She has also stated that her in-laws have accepted their marriage and she is staying happily with them. She has further stated that she has entered into compromise and deposed before this Court, out of her free will, consent and without any external pressure, coercion or threat of any kind, she does not have any grudge against Durgesh Chauhan.
Learned counsel for the applicants submits that on account of compromise entered into between the parties concerned, all disputes between them have come to an end, and, therefore, no purpose would be solved to keep the matter going as the same would be futile exercise and wastage of time of the Court and will be abuse of process of law as the same will ruin happy married life of a couple and will effect the carrier of their children. He further submits that the purpose of POCSO Act, is to save minor child from sexual exploitation and not to criminalize consensual romantic relationship which has resulted into marriage. In support of his contention, learned counsel for the applicant has relied upon the judgment of this Apex Court in the case of Mafat Lal and another vs. State of Rajasthan report on 2022 LawSuit(SC) 463 and also relied upon the judgment of this Court in the case of Gufran Shaikh @ Gani Munawwar vs. State of U.P. and another decided on 28.07.2022 passed in Application U/s 482 No.10258 of 2021.
Learned A.G.A. does not dispute the aforesaid fact and submitted at the Bar that since the parties concerned have settled their dispute as mentioned above, therefore, he has no objection in quashing the impugned criminal proceedings against the applicant.
Before proceeding any further it shall be apt to make a brief reference to the case of Gian Singh Vs. State of Punjab reported in (2012) 10 SCC 303, wherein the Apex Court has categorically held that the compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. The relevant portion of the said judgment of the Apex Court reads as follows:-
"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."
The Apex Court in Parbatbhai Aahir alias Parbhathbhai Bhimsinghbhai Karmur and others vs. State of Gujarat and another, (2017) 9 SCC 641, summarizing the broad principles regarding inherent powers of the High Court under Section 482 Cr.P.C. has recognized that these powers are not inhibited by provisions of Section 320 Cr.P.C.
The Apex Court in the case of Narinder Singh and others vs. State of Punjab and others reported in (2014)6 SCC 466 and also in State of Madhya Pradesh vs. Laxmi Narayan and others reported in (2019) 5 SCC 688, has summed up and laid down principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercise its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with criminal proceedings.
In the present case, no doubt offence under the relevant sections 363, 366, 504, 506 and 376 of IPC and Sections 3, 4, 16, 17 of POCSO Act are not compoundable under Section 320 Cr.P.C. However, as explained by Hon'ble Apex Court in Gian Singh's, Narinder Singh's, Parbatbhai Aahir's and Laxmi Narayan's cases (supra), power of High Court under Section 482 Cr.P.C is not inhibited by the provisions of Section 320 Cr.P.C and FIR as well as criminal proceedings can be quashed by exercising inherent powers under Section 482 Cr.P.C, if warranted in given facts and circumstances of the case for ends of justice or to prevent abuse of the process of any Court, even in those cases which are not compoundable where parties have settled the matter between themselves.
In the case of Madan Mohan Abbot vs. State of Punjab, reported in (2008) 4 SCC 582, the Apex Court emphasized and advised that in the matter of compromise in criminal proceedings, keeping in view of nature of this case, to save the time of the Court for utilizing to decide more effective and meaningful litigation, a commonsense approach, based on ground realities and bereft of the technicalities of law, should be applied.
In the aforesaid judgments, the Apex Court has categorically held that compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. The present case is also a case where two societal interests are in clash. To punish the offenders for a crime, involved in present case, is in the interest of society, but, at the same time, husband is taking care of his wife and in case, husband is convicted and sentenced for societal interest, then, wife will be in great trouble and their future would be ruined. It is also in the interest of society to settle and resettle the family for their welfare.
Considering the facts and circumstances of the case, as noted herein above, and also the submissions made by the counsel for the parties, the court is of the considered opinion that the victim/ daughter of opposite party no. 2 herself, has stated before this Court that she has married the applicant no. 1 out of her own sweet will and is living happy married life. Out of their wedlock, they are blessed with two children who are presently four years and one year old. Therefore, no useful purpose shall be served by prolonging the proceedings of the above mentioned criminal case as the parties have already settled their dispute.
Accordingly, the charge sheet dated 28.09.2019 as well as cognizance order dated 30.10.2019 in Special Session Trial No. 534 of 2019 (State Vs. Durgesh Chauhan and others) arising out of Case Crime No. 0099 of 2019, under sections 363, 366, 504, 506, 376 IPC and Section 3, 4, 16, 17 of POCSO Act, Police Station Kothibar, District Maharajganj pending before the Court of learned Additional Sessions Judge-I, Maharajganj, are hereby quashed.
The application is, accordingly, allowed. There shall be no order as to costs.
A copy of this order be certified to the lower court forthwith.
Order Date :- 17.5.2023 Arti