Allahabad High Court
Nitin Singhal And Another vs State Of U.P. And Another on 12 January, 2018
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No.-49 Case :- APPLICATION U/S 482 No. - 40971 of 2017 Applicant :- Nitin Singhal And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Kandarp Srivastava, Kaustubh Srivastava Counsel for Opposite Party :- G.A.,Devesh Kumar Shukla Hon'ble Rahul Chaturvedi J.
Heard Sri Kandarp Srivastava and Kaustubh Srivastava counsel for the applicants, Shri D.K. Shukla, counsel for the opposite party no.2 and learned A.G.A. for the State and perused the records of the case.
By means of instant 482 Cr.P.C. application, the applicants Nitin Singhal and Ruchi Singhal are jointly assailing the summoning order dated 25.10.2017 and entire criminal prosecution against them U/s 384, 293, 294 I.P.C. and Section 11,12,17 and 18 of POCSO ACT 2012 pending in the court of Addl. Sessions Jude, Court No.17, Agra in Criminal Case No. 2070/2017 Inre: State Vs. Nitin Singhal and others with the prayer to quash the same in the light of the settlement agreement between the contesting parties dated 14.11.2017 annexed as Annexure No.4 to the affidavit.
The present criminal prosecution against the applicants started rolling after lodging of the F.I.R. dated 19.08.2017 for the alleged incident said to have taken place on 15.08.2017 registered as Case Crime No. 620/2017 U/s 384 I.P.C. and 7/8 POCSO ACT, 2012 by opposite party no.2 Prashant Kumar of Agra. The prosecution story as culled out from the F.I.R. are as follows:-
The informant's minor son Ronit is subject of sexual abuse, assault and was blackmailed by the accused/applicants. The informant is a silversmith at Agra doing his business as manufacturer of silver ornaments. His 15 years old son was mentally perturbed from last few days. When his wife inquired from that boy then he revealed that his teacher Nitin Singhal-applicant no.1, where he used to visit for tuition purpose sexually assaulting/abusing him and blackmailing him for long time. Not only this, in the stage of intoxication, the accused persons have taken his obscene photographs and videos, started blackmailing him. On the account of this blackmail, the minor boy Ronit started stealing money and other valuables from his residence and handing over the same to the accused persons. He was regularly shown obscene and pornographic films and in this process, Ruchi and Anjali use to force him to prepare the said videos. The F.I.R. Is vivid and elaborate description of the distasteful incident which need not to be mentioned for the purposes of adjudication of this case.
On the reading of the F.I.R., it is clear that a minor lad of 15 years was subject of this cruel, obscene and impure treatment by none other than his own teacher, where he use to visit for tuition purposes. Keeping in view his tender age and the sacrosanct relationship of teacher and taught, the present case is not only, outrageous but also caustic to taste.
After registering the case, the police has started investigating into the matter and after collecting the sufficient material, has submitted charge sheet on 26.9.17 U/s 384, 293, 294 I.P.C. and U/s 11, 12, 17 and 18 of the POCSO ACT against Nitin Singhal and Ruchi Singhal relying on the statements of Prashant Kumar, Ronit (the victim), Vikas Kumar Verma as witnesses of fact besides other formal witnesses. The learned Additional Sessions Judge on 25.10.2017 has taken cognizance of the aforementioned offences, fixing 24.11.2017 for framing of the charge.
The order-sheet shows that prior to date fix i.e. 24.11.2017, on 14/15.11.2017, a settlement was arrived at between the complainant as well as accused persons with the help and aid of some seniors of the society, (panchs) which is being annexed as Annexure No.4 to the affidavit. I have got an opportunity to go through the contents of the above mentioned settlement. Its para-2 reads as under:-
;g fd mijksDr izdj.k esa lekt ds izfrf"Br O;fDr;ksa }kjk dh x;h iapk;r esa izFke i{k }kjk ntZ djk;h x;h fjiksVZ dh ckor nksuksa i{kksa dk fookn nwj djk fn;k gS ftlds pyrs izFke i{k }kjk iapksa ds le{k ;g vk'oklu fn;k x;k fd og f}rh; i{k ds fo:) fdlh izdkj dh dksbZ fof/kd dk;Zokgh ugha djuk pkgrk gS vkSj uk gh U;k;ky; esa eqdnek pykuk pkgrk gSA Thus from the above, when the parties have settled their "VIVAD" and on this ground, the learned counsel for the applicants has prayed from this court that in exercise of extraordinary powers U/s 482 Cr.P.C. the entire criminal prosecution against the accused/applicants should be dropped/quashed as the said VIVAD has been buried and compromised between the rival parties of the case and consequently the entire criminal prosecution may be dropped and in abundant. It is a million dollor question, as to whether this abhorring offence with young boy is only a VIVAD? which is settled between the parties. In order to lay emphasis and draw a parallel, the learned counsel for the applicants has drawn my attention on number of citations decided by Hon'ble Apex Court, different High Courts, as well as this Court. Few of them deserve a special reference, they are-
I. B.S. JOSHI VS. STATE OF HARYANA AND OTHERS 2003 (4) ACC 675.
II. GIAN SINGH VS. STATE OF PUNJAB 2012 (10) SCC 303.
III. DIMPEY GUJRAL AND OTHERS VS. UNION TERRITORY THROUGH ADMINISTRATOR 2013 (11) SCC 697.
IV. NARENDRA SINGH AND OTHERS. VS. STATE OF PUNJAB AND OTHERS 2014(6) SCC 466.
V. YOGENDRA YADAV AND OTHERS VS. STATE OF JHARKHAND 2014 (9) SCC 653.
The learned counsel for the opposite party no.2, has also filed his 'vakalatnama' as well as a short counter affidavit which is taken on record. In his response, the learned counsel for opposite party no.2, has also nodded in affirmative mentioning therein, that since the contesting parties have buried their differences, settled down the allegations outside the court with the help of respectable persons of the society (Panch), the entire exercise/trial would be a futility and wastage of time of the court.
Under this extraordinary circumstance where the contesting parties are sailing in a same boat, in a same direction, then what is expected from this court ? To become a silent spectator and promote the cause of rival parties OR the court is to examine whether the present case is an apt and appropriate case where the extraordinary powers U/s 482 Cr.P.C. should be exercised ?. Whether the ratio lay down in Gian Singh's case is applicable upon the facts of the present case ? High Court should become party to serve the objective to contesting parties in closing of the case? Whether the act of mental depravity over a child of 15 years is only a VIVAD simplicitor which the rival parties have settled by way of compromise deed dated 14.11.17 itself ? All these aspects of the issue has to be duly addressed and considered by way of the present judgment.
To start with, it is relevant to mention the paragraph no.61 of the celebrated judgment of GIAN SINGH VS. STATE OF PUNJAB 2012 (10) SCC 303 which lay down the guidelines which act as a touchstone to decide as to whether the powers of 482 Cr.P.C. should be extended to drop any criminal prosecution in the light of the settlement. Paragraph no. 61 of the judgment is relevant for the purpose of adjudication of present controversy, quoted herein below: -
".....The power of the High Court is quashing a criminal proceeding of 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 FIR may be exercised where the offender and the 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 the 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 a serious impact on society. Similarly, any compromise between the victim and the 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".
The catchword in the above judgment is serious offence of the mental depravity. This word ''Mental depravity' means, -a degree of moral turpitude and physical debasement associated with a crime such as a repeated and excessive acts of physical abuse or unreasonably brutality or outrageously, wantonly, vile, horrible, an inhuman. (ii). Depravity of mind-means an utterly corrupt, perverted or immoral state of mind.
Besides above, in a latest judgment pronounced by Hon'ble Apex Court, in Criminal Appeal No. 1723/2017 arising out of SLP (Crl.) No. 9549/2016, the Full Bench of the Hon'ble Apex Court in the case of DPARBATBHAI AAHIR @ PARBATBHAI BHIMSINHBHAI KARMUR AND OTHERS. VS. STATE OF GUJARAT AND ANOTHER, decided on 4th October, 2017, Hon'ble Dr. D.Y. Chandrachud J. delivering the judgment on behalf of the Full Bench has summarized the broad principles with regard to exercise of powers under Section 482 Cr.P.C. in the case of compromise/settlement between the parties. Which emerges from precedent of the subjects as follows: -
i. "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 recognizes and preserves powers which inhere in the High Court.
ii. 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.
iii. 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;
iv. 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;
v. 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;
vi. 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;
vii. 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;
viii. Criminal cases involving offences which arises 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;
ix. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and x. There is yet an exception to the principle set out in propositions (viii) and (ix) 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."
On the basis of above guidelines and point no. (V) and (VI) are relevant for deciding the present case. It has been pointed out by Hon'ble Apex Court that facts and circumstances of each case has to be taken into account while adjudicating the case depending upon the compromise. The court must give due weight to the fact, that what is the nature and gravity of the offence. No uniform or steel jacket formula could be formulated in this regard. The offences involving 'mental depravity' and offences such as dacoity, rape or murder cannot appropriately be quashed. Though the victim or the family of the victim have settled the dispute. Such type of offences has far reaching and serious impact upon the society. The decision to continue with the trial in such case is founded upon the element of public interest in punishing a wrong doer who is an author of such a serious offence.
In the instant case, the F.I.R. which was registered by opposite party no.2 Prashant Kumar with the allegations that his son Ronit (15) is constantly sexually assaulted by "Nitin Singhal Sir" and his sisters Ruch and Anjali for last 9 months, casting serious stigma on the teacher and taught pious relationship, as the victim use to visit the residence of accused no.1 for the tuition purposes. A boy of tender age was initially sexually abused and exploited by showing him obscene pornographic films and videos and blackmailed by accused persons for ulterior motives. The co-accused Ruchi and Anjali prompted the boy to act upon after seeing those dirty videos. As alleged in the FIR the accused persons have taken victim's obscene photographs for the purpose of blackmail him . All these abhorring, distasteful, brutal and horrible allegation on which this F.I.R. was lodged cannot be said a simplicitor VIVAD, as mentioned in paragraph no.2 of the settlement dated 14.11.2017. Without making any comment on the truthfulness of these allegations, either way, which is subject matter of the trial, which has caused serious and irreparable dent to the psyche of the boy, is not simplicitor dispute/vivad between two families.
The question as to whether an offence of murder, rape, dacoity and for that matter of facts present case, which is having serious in nature of the offences. The finding to this question becomes imperative, as the philosophy and jurisprudence of sentencing is based thereupon. It is a heinous crime of serious nature then it has to be treated as crime against society and not against the individual alone. It is the solemn duty of the State to punish a crime doer. Even there is a settlement/compromise between the perpetrator of the crime and the victim that is of no consequence. The law prohibits certain acts and conducts and treats them as an offence.
The question as to whether on above paramerters as laid down by Hon'ble Apex Court, facts of present case too fall in the same category. On the basis of the allegations of the FIR, the police after conducting investigation has submitted its report under Section 173(2) Cr.P.C. and learned Magistrate have taken cognizance of those offences. It cannot be said that these are only pure and simple allegations now. The author of this offence, which axed our basic, culture, values established norms of civilized society and more over a punishable act under POCSO Act as well as offences under Sections 293 and 294 IPC. This is no more an offence where two individuals are involved, it has serious and far reaching reprecussion on the society at large and thus any number of settlement or compromise would not going to mitigate the gravity or severity of the offence or it would lead to bad precedent if the High Court in exercise of extraordinary powers under Section 482 Cr.P.C. quash the proceedings and become party to this settlement.
Allegation of the offence of present nature certainly cannot be said that this is offence of a trivial and private in nature, whereby the victim and its author has settled their score outside the court. It is crime against society and settlements would not going deter the State to prosecute a wrong doer/offender and to reach its logical conclusion.
As a result the present 482 application on behalf of applicants sans and lacks merits and dismissed as such, there is no order to cost.
However, if the applicants have not been bailed out as yet, they shall surrender before the concern court and apply for bail, their bail application shall be heard and decided strictly in accordance with law, unaffected by the observations made in this judgment, without any unwarranted and unreasonable delay. The office is directed to forward copy of this judgment within a week for the compliance.
Dated: 12.01.2018 Abhishek Sri/-