Allahabad High Court
Shahnawaz vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 27 June, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:44380 Court No. - 5 Case :- APPLICATION U/S 482 No. - 5774 of 2024 Applicant :- Shahnawaz Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home U.P. Lko. And 4 Others Counsel for Applicant :- K.K. Singh Counsel for Opposite Party :- G.A.,Faizal Hashmi Hon'ble Arun Kumar Singh Deshwal,J.
1. Vakalatnama filed by Sri Faizal Hashmi, learned counsel on behalf of opposite party Nos.2 and 3, is taken on record.
2. Heard Shri K.K. Singh, learned counsel for the applicants, Shri Faizal Hashmi learned counsel for opposite party Nos.2 and 3 and Shri Nirmal Pandey, learned A.G.A. for the State.
3. Present application under Section 482 Cr.P.C. has been filed with the following prayer:
"A) To quash the N.B.W. dated 19.12.2023, in Case Crime No.- 423/2021, in Special S.T. No. 51/2022, State vs. Shahnawaz @ Sameer, under section 363, 366 IPC & 7/8 POCSO Act, P.S.- Maharajganj, District- Ayodhya.
(B) To quash the charge sheet No. 136/2022 dated 12.04.2022, in Case Crime No. 423/2021, in Special S.T. No. 51/2022, State vs. Shahnawaz @ Sameer, under section 363, 366 IPC & 7/8 POCSO Act, P.S.- Maharajganj, District- Ayodhya.
C) To quash the summoning order dated 11.05.2022, by which applicant is being directed to appear and participate in the trial in registered in Special S.T. No. 51/2022.
D) To quash the entire proceedings of the Special S.T. No. 51/2022, instituted before the court of learned Special Judge, P.O.C.S.O. Act, First, Faizabad/ Ayodhya, in Case Crime No.- 423/2021, State vs. Shahnawaz @ Sameer, under section 363, 366 IPC & 7/8 POCSO Act, P.S.- Maharajganj, District- Ayodhya."
4. Learned counsel for the applicants submits that the impugned proceedings have been culminated on the basis of charge sheet filed in pursuance of investigation in F.I.R. lodged by opposite party no.2 against the applicant for kidnapping of her daughter Sireen @ Neha. He has further submitted that during the investigation, the statement of victim girl was also recorded under Sections 161 and 164 Cr.P.C. wherein she has stated that she is about 18 years of age with date of birth 04/01/2004 as per High School mark-sheet and has stated that she herself had left her house and called the applicant who was having friendly relation with her. It was further mentioned in the above statement of the victim girl that when the applicant refused to meet the victim girl then she threatened that she would commit suicide, only then the present applicant had joined her. Thereafter, they willingly solemnized marriage on 07.02.2022. Now they are living as husband and wife. It is further submitted that on the basis of material collected during investigation by the Police, no case is made out against the present application. Now the applicant and opposite party no.2 have settled their dispute amicably which was also reduced in written compromise dated 20.02.2024. He has further submitted that this Court by order dated 09.04.2024, passed in Application u/s 482 No. 3234 of 2024, had directed the court below to verify the aforesaid compromise. In pursuance of the aforesaid order of this Court, the court below has verified the compromise on 06.05.2024. The copy of the verification order dated 06.05.2024 is annexed at page no.73 to the present application.
5. The aforesaid fact is not disputed by learned counsel for the opposite party No.2. He has submitted that the complainant is the mother of the victim girl and she has no objection on the marriage of the applicant and victim girl as both of them have already attained majority and also got married and are living as husband and wife.
6. However, learned A.G.A. has submitted that the offence of impugned proceedings is not compoundable, therefore, proceedings cannot be quashed on the basis of compromise.
7. Hon'ble Apex Court in the case of Gian Singh Vs. State of Punjab & Another; (2012) 10 SCC 303, in paragraph No. 61 of the judgement, observed 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 victim and offender in relation to the offences under special statutes like the 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 the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
8. Hon'ble Apex Court in the case of State of M.P. vs. Laxmi Narayan; (2019) 5 SCC 688, observed as under:-
"15.1. 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;
15.2. 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;
15.3 similarly, such power is not to be exercised for the offences under the special statutes like the 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.
15.4. 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/delicate 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 paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;"
9. From above noted judgements, it is clear that merely mentioning the section of serious offences will not refrain the court from quashing the proceeding, if on considering the material on record, offences under that section is not made out.
10. Considering the material on record, this Court finds that no serious offence is made out against the applicants, which falls in the category of mental depravity or serious offences.
11. Considering the fact as well as on perusal of record, the victim girl at the time of incident was about 18 years (17 years, 11 months and 24 days) and the victim girl did not make any allegation against the applicant for kidnapping her or committing rape upon her.
12. From perusal of the entire case diary, it appears that the victim girl herself left her house, thereafter, called the applicant and on the date of incident, victim girl was about 18 years of age and now the applicant and victim have willingly got married with the consent of opposite party no.2/complainant, therefore, no offence under Sections 363, 366 I.P.C. is made out against the applicant. As the victim was about the age of 18 years, therefore, no case under the POCSO Act is made out against the applicant. Now after getting married, the applicant and victim girl have been residing as husband and wife. This Court in the case of Fakhrey Alam Vs. State of U.P. considered this issue and after relying upon several judgments of Hon'ble Apex Court and other High Courts and quashed the proceedings under Section 363, 366 IPC and 3/4 POCSO Act. Facts of the present case are squarely covered with the issues covered in the case of Fakhrey Alam (supra). In such circumstances, no heinous and serious offences of mental depravity or other offences, which may affect the society in general, are made out and both the parties have amicably settled their dispute through compromise which has been duly verified by the court below as well as in view of the law laid down by the Apex Court in Gian Singh Vs. State of Punjab & Another ; (2012) 10 SCC 303, Narinder Singh & Others vs. State of Punjab & Another (2014) 6 SCC 477, State of M.P. Vs. Laxmi Narayan, (2019) 5 SCC 688 and State of M.P. vs. Dhruv Gurjar, AIR 2017 SC 1106, the proceeding of entire proceedings of the Special S.T. No. 51/2022, instituted before the court of learned Special Judge, P.O.C.S.O. Act, First, Faizabad/ Ayodhya, in Case Crime No.- 423/2021, State vs. Shahnawaz @ Sameer, under section 363, 366 IPC & 7/8 POCSO Act, P.S.- Maharajganj, District- Ayodhya,charge sheet No. 136/2022 as well as N.B.W. dated 19.12.2023, in Case Crime No.- 423/2021, in Special S.T. No. 51/2022, State vs. Shahnawaz @ Sameer, under section 363, 366 IPC & 7/8 POCSO Act, P.S.- Maharajganj, District- Ayodhya are hereby quashed.
13. With the aforesaid direction, the present application is allowed.
Order Date :- 27.6.2024 DiVYa