Orissa High Court
Hari Mohapatra And Anr. vs State Of Orissa And Ors. on 10 April, 1996
Equivalent citations: 1996CRILJ2952, 1996(I)OLR488
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The two accused persons in G. R. Case No. 410 of 1990 pending in the file of the Sub-Divisional Judicial Magi-Decided on 10th April, 1996. strate, Nayagarh, have filed this revision for quashing the aforesaid criminal proceeding.
2. Petitioner No. 1 is the son of petitioner No. 2. The FIR was lodged on 3-10-1990 by present opp. party No. 2 alleging that on 27-9-1930 at about 4 p.m. the two petitioners entered inside the house of the informant and at the instigation of petitioner No. 2, petitioner No. 1 outraged the modesty of opp. party No. 3. the daughter of the informant, and attempted to commit rape. After investigation was over, charge-sheet was submitted under Sections 448/114/354/406/ 511 /34, Indian Penal Code, and cognisance was taken by the Magistrate. Though in the charge-sheet and order of cognisance. Section 511 alone was indicated, it is evident that the cognisance was in respect of the alleged offence under Section 376, read with Section 511, Indian Penal Code. Before commencement of the trial, a petition for compounding the offences was filed on behalf of the informant as well as the alleged victim, the present opp. parties 2 and 3 respectively. The contents of the petition for compounding were read over and explained to the informant and the alleged victim personally in Court and upon their admission that the contents of the petition for compounding were correct, the Sub-Divisional Judicial Magistrate granted permission for compounding the offences under Sections 448/114/354/506 34. Indian Penal Code, and accordingly acquitted both the accused persons of those charges. However, since the alleged offences under Section 511 read with Section 376. Indian Penal Code, was not compoundable, the Sub-Divisional Judicial Magistrate refused permission to compound the said offence and fixed the matter for commitment of the accused persons to the Court of Session. At that stage, the two accused persons have approached this Court for quashing the proceeding.
3. Opp. parties 2 and 3 have entered appearance through an Advocate and have filed two separate affidavits reiterating the fact that a compromise has already been effected and it has been specifically stated that they do not intend to prosecute the two accused persons any further.
4. The learned Advocate appearing for the petitioners submits that when the dispute between the parties has been settled long back, it would not be in the interest of justice to further prosecute the accused persons to rake up a matter which has been closed. It is submitted that even though the alleged offence under Section 511, read with Section 376, Indian Penal Code, is not compoundable, in the exercise of power under Sac. 482 of the Code of Criminal Procedure, the High Court should quash the proceeding. He has placed reliance on the decisions reported in AIR 1988 SC 2111 (Mahesh Chand and Anr. v. State of Rajasthan) ; (1988) 1 OCR 564 (Md. Khalilur Rahaman v. Stata of Orissa and Anr.) and (1994) 7 OCR 207 ; (Sudam Charan Barik v. State and Ors.).
5. In the present case, the alleged incident took place in 1990, when the alleged victim was aged about 14 to 15 years. About six years have elapsed in the meantime. The alleged victim and her mother, the informant have also filed affidavits in this Court indicating their disinclination to proceed further in the matter. While it is true that the alleged offence under Section 511 read with Sec 376, Indian Penal Code, is not compoundable and as such the Sub-Divisional Judicial Magistrate was justified in refusing to drop the proceeding, as he had no power to exercise inherent power under Section 482 of the Code of Criminal Procedure, in such a contingency the hands of the High Court are not tied down. If the proceeding is allowed to continue, the alleged victim is bound to be dragged to the Court to depose about an incident which allegedly occurred about six years back. In view of the petition before the Sub-Divisional Judicial Magistrate as well as the affidavit in the High Court, it is quite obvious that the alleged victim is no longer willing to support the prosecution case. To insist upon such a reluctant witness to depose about the traumatic incident after such a long lapse of time would be counter-productive. In other words, it would not be in the interest Of justice to proceed further in the case to rake up matters which have been buried by the parties. In fact, in the several decisions cited at the Bar, such a course was adopted by the High Court and the Supreme Court and the prosecution was quashed even though the alleged offences were not compoundable. Following a similar path, I direct that the proceeding should be quashed.
6. Even otherwise, the entire materials on record including the allegations made in the FIR and the statement of the alleged victim do not prima facie make out an offence under Section 376 read with Section 511, Indian Penal Code. Ordinarily, what constitutes an "attempt" within the meaning of Section 511, Indian Penal Code, is a mixed question of law and fact depending largely on the circumstances of the particular case. The expression "an attempt" defies a precise and 1988 (I) OLR 400 exact definition. Generally speaking, all crimes which consist of commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three phases. The first phase exists when the culprit first entertains the idea or intention to commit an offence. In second phase, he makes preparation to commit it. The first stage is never punishable whereas the second phase is punishable in exceptional cases such as preparation to commit dacoity et cetera. The third phase is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act if culminates in the intended act is the offence itself, but sometimes it may not culminate in the commission of the offence itself due to various reasons, in which case it is termed as "an attempt". Such overt act or step in order to be punishable need not be the penultimate act towards the commission of the offence in all cases. It is sufficient if such act or acts were deliberately done with a clear intention to commit the offence being reasonably proximate to the consummation of the offence.
As observed in the decision reported in AIR 1961 SC 1698 (Abhayananda Mishra v. State of Bihar) there is a thin tine between the stage of preparation and an attempt to commit an offence. A person commits the offence of "attempt to commit a particular offence" when he intends to commit that particular offence and having made preparations and with intention to commit the offence does an act towards its commission which need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing that offence. As explained in the decision reported in AIR 1980 SC 1111 (State of Maharashtra v. Mohd. Yakub and Ors.), though such overt act need not be the penultimate act towards the commission of the offence, such act must manifest a clear intention to commit the offence aimed being reasonably proximate to the consummation of the offence. As observed by Chinnappa Reddy, J, in his concurring view in the very same decision :
"...In order to constitute 'an attempt' first, there must be art intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be proximate to the intended result. The measure of proximity is not in relation to time and action but in relation to intention......"
Apart from the aforesaid decisions which have attempted to define "what is an attempt", let me refer to specific cases under Section 511 read with Section 376, Indian Penal Code. In (1912) 13 Cr LJ 469 (Muna v. Emperor) the accused had taken off the girl's clothes, thrown her on to the ground and then sat down beside her. in the above circumstances, it was held that the accused was not guilty of an attempt to commit rape.
In AIR 1960 M P 155 : State of Madhya Pradesh v. Babulal) the accused had gone near the victim and tried to seduce her for intercourse. When the victim repelled his advances, he became furious, caught hold of her and assaulted her and fell her down on the ground forcibly and snatched her lugda and thereby made her naked. On hearing the cries of the victim, her uncle came to the spot and the accused fled away. Upon these facts, relying upon several decisions, it was observed at page 156 of the decision :
" In the present case, as already stated, the accused only made the girl naked. He did not expose nor attempted to expose his private pArts. For all these reasons I cannot agree with the learned Additional Sessions Judge that from the challan or the first imformation report it was undoubtedly a case of an of fence to commit rape.........."
The aforesaid decision of the Madhya Pradesh High Court was distinguished in the decision reported in AIR 1967 Raj. 149 (Sittu v. State). In the Rajasthan case, the accused forcibly made the girl naked and tried repeatedly to force the male organ into her private part- despite strong resistance from the victim. In the back-ground of the aforesaid facts, it was held that the accused had gone much beyond the stage of preparation and offence committed was one under Sec, 3761511. Indian Penal Code.
In the present case, the allegation is that petitioner No. 1 after entering inside the room closed the door and molested the victim by squeezing her breast and tried to open her pants. There can be no doubt that such allegations definitely constituted an offence under Section 354, Indian Penal Cods. So far as the alleged offence under Section 376/511 is concerned, such an act in trying to open the pants is relatable to second phase that is to say, the stage of preparation and not to the third stage to bring it within the arena of the expression "attempt". The allegations in the present case are more or less similar to the facts of the decision of the Punjab Chief Court reported in (1912) 13 Cr LJ 459, and the decision of the Madhya Pradesh High Court reported in AIR 1960 Madhya Pradesh 155, and are quite distinguishable from the facts and circumstances found in the Rajasthan case (AIR 1967 Raj. 149).
Since the allegations contained in the FIR and the statement made by the alleged victim do not bring the matter within Section 511/376, Indian Penal Code, taking of cognisance in respect of alleged offence under Sac. 511 read with Section 376, Indian Penal Code, was also illegal and liable to be quashed.
7. In the result, in either view of the matter, the criminal proceeding in G. R. Case No. 410 of 1990 is liable to be quashed. The Criminal Revision is accordingly allowed and G. R, Case No. 410 of 1990 is hereby quashed.