Karnataka High Court
Rohith Edwin D Souza vs The State Of Karnataka on 24 September, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.4660/2020
BETWEEN:
Rohith Edwin D'Souza
S/o Eliyas D'Souza
Aged about 28 years
R/at D.No.2-8, Thota House
Balkanje Post and Village,
Mangaluru,
Dakshina Kannada-575 030.
...Petitioner
(By Sri B.Lethif, Advocate)
AND:
1. The State of Karnataka
by Mulki Police Station
D.K. District, Mangaluru
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
2. Flovina Mischel Rebello
D/o late Marshall Peter Rebello
W/o Rohith Edwin D'Souza
Aged about 19 years
R/at D.No.2-8, Thota House
Balkanje Post and Village,
Mangaluru,
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Dakshina Kannada-575 030.
...Respondents
(By Sri M.Divakar Maddur, HCGP for R1;
Sri Syed Akbar Pasha, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the entire proceedings in
Spl.C.No.101/2020 (Crime No.87/2019) of Mulki Police
Station, D.K. District, for the offence punishable under
Section 376 of IPC and Section 5(L) and 6 of POCSO Act on
the file of Additional District and Sessions Judge, FTSC-1
(POCSO), D.K., Mangaluru.
This Criminal Petition coming on for Admission
'through Video Conference', this day, the Court made the
following:-
ORDER
Though this case is listed for awaiting notice to respondent No.2, respondent No.2 and her counsel have appeared virtually by waiving the notice. Hence, this petition has been taken up for final disposal.
2. Sri.Rohit Edwin D'souza S/o Eliyas D'Souza is present along with his counsel Sri.Lethif B. The learned High Court Government Pleader Sri.M.Divakar Maddur is appearing for respondent No.1.
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Smt.Flovina Mischel Rebello D/o late Marshal Peter Rebello complainant-respondent No.2 is present along with her counsel Sri.Syed Akbar Pasha.
3. It is the submission of the learned counsel Sri.Syed Akbar Pasha that today he has filed Vakalath on behalf of respondent No.2. Registry is directed to print his name in the cause-list and directed to accept the Vakalath.
4. The learned counsels appearing for the parties identifies the petitioner-accused and the respondent No.2 as the same parties. They have filed the joint affidavit and the petitioner-accused has also filed a separate affidavit, stating that they have no grievance against each other and now they are happily married and leading their life. They have attained the age of majority and there is no threat or coercion to enter into compromise.
5. It is submitted that because of misunderstanding the complaint has been filed. Now they have amicably settled the said case. It is further stated that, when the Court questioned them, they stated that, they were loving -4- with each other and now respondent No.2 is pregnant. If the criminal proceedings pending against the petitioner- accused is continued, it will be in their mind, it may affect their happy matrimonial life, then their life may be prejudiced and there may be some difference of opinion. Now in the Society they have been recognized as husband and wife and they are comfortably staying in the Society.
6. It is further submitted that, taking into consideration the facts narrated above and in view of the compromise entered into between the parties, the proceedings may be quashed.
7. At this juncture, it is worth to mention here itself a decision of the Hon'ble Apex Court in the case of J.Ramesh Kamath and Others Vs. Mohana Kurupt and Others, reported in (2016) 12 SCC 179, wherein the Hon'ble Apex Court has laid down certain principles as to under what circumstances the Court can quash the proceedings or compound the offences even in respect of a non- -5- compoundable offences, wherein it has been held as under:-
"Held, power vested in High Court under S.482 is not limited to quashing proceedings within ambit and scope of S.320 of Cr.P.C., - In Gian Singh, (2012) 10 SCC 303, it was clearly expounded that quashing of criminal proceedings under S.482 of Cr.P.C., could also be based on settlements between private parties, and could also be on a compromise between the offender and victim - Only that, the above power did not extend to crimes against the society - Further, jurisdiction vested in High Court under S.482 Cr.P.C., for quashing criminal proceedings was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particular offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions, or even offences arising out of matrimony relating to dowry, etc., or family disputes where wrong is basically private or personal. In all such cases, parties should have resolved their entire dispute by themselves, mutually."
8. The Hon'ble Apex Court has reiterated the principles of law laid down in the case of Gian Singh Vs. State of Punjab and another reported in (2012) 10 SCC 303, wherein it has been observed that the Court can exercise the power under Section 482 of Cr.P.C. depending upon the facts and circumstances of each case and -6- compound the offence. In the case of Narinder Singh and others Vs. State of Punjab and another reported in (2014) 6 SCC 466, it has been observed as under:
"8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence. However, compounding under Section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. Insofar as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of these powers were described by this Court in B.S.Joshi v. State of Haryana which has been followed and further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter.
9. At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to the Court under Section 320 of the Code and quashing of criminal proceedings by the High Court in -7- exercise of its inherent jurisdiction conferred upon it under Section 482 of the Code. Once it is found that compounding is permissible only if a particular offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided solitarily and squarely by the compromise between the parties, insofar as power of quashing under Section 482of the Code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of indictment. Such a distinction is lucidly explained by a three-Judge Bench of this Court in Gian Singh v. State of Punjab. Lodha, J. speaking for the Court, explained the difference between the two provisions in the following manner: (SCC pp.340-41, paras 57 & 59).
"57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable.
Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the -8- ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.
59. B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section
482. The two powers are distinct and different although the ultimate consequence may be the same viz.
acquittal of the accused or dismissal of indictment."
10. Apart from narrating the interplay of Section 320 and Section 482 of the Code in the manner aforesaid, the Court in Gian Singh case also described the extent of power under Section 482 of the Code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. In the first instance it was emphasized that the power under Section 482 of the Code is not to be resorted to, if there is -9- specific provision in the Code for redressal of the grievance of an aggrieved party. It should be exercised very sparingly and should not be exercised as against the express bar of law engrafted in any other provision of the Code. The Court also highlighted that in different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non.
11. As to under what circumstances the criminal proceedings in a non- compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines: (Gian Singh case, SCC pp.340-41. para 58) "58. Where the High Court quashes a criminal proceeding having regard to the facts that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well- being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the
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victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed."
12. Thereafter, the Court summed up the legal position in the following words: (Gian Singh case, SCC pp.342-43, para 61)
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"61. The position that emerges from the above discussion can be summarized thus:
the power of the High Court in quashing a criminal proceeding or FIR or a 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 plentitude with no statutory limitation but it has to be exercised in accord with the guidelines 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 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. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the
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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, the 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 or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the 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."
The Court in Gian Singh case was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the Prevention of Corruption Act or the offences committed by
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Public Servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such heinous crime cannot have imprimatur of the Court."
9. Even in the case of Srinivasan Iyenger and Another v. Bimla Devi Agarwal and Others reported in (2019) 4 SCC 456 at paragraph Nos.8 to 14 it has been observed as under:
"8. During the hearing of these appeals, the learned counsel for the appellants agreed to pay to the original complainant a total sum of Rs 10,00,000 (Rupees Ten lakh only) towards the full and final settlement of the claim of the original complainant and it is agreed that, on such payment, the claimant will not proceed with the complaint any further and that the parties may be permitted to compound the offences.
9. The learned counsel appearing on behalf of the original complainant has stated that the original complainant is agreeable to accept a total sum of Rs 10,00,000 offered and that, on such payment, the complainant has no objection if the offences against the appellants are compounded and the criminal proceedings initiated against them are quashed.
10. The learned counsel appearing on behalf of the original complainant has submitted that the appellants may deposit a total sum of Rs
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10,00,000 in the bank account of the original complainant, the particulars of which are already on record, and on doing so, the appellants may be permitted to withdraw the amount of Rs 3,75,000 plus interest if any, already deposited by them.
11. Having heard the learned counsel appearing on behalf of the respective parties and that now the parties have settled the dispute amicably and that the dispute between the parties seems to be having predominant element of a civil dispute and the origin is predominantly or overwhelmingly a civil dispute, we are of the opinion that this is a fit case to exercise the power under Article 142 of the Constitution of India to meet the ends of justice.
12. We are of the opinion that on payment of total sum of Rs 10,00,000 by the appellants to the original complainant, as agreed between the parties, the criminal proceedings be quashed, considering the decisions of this Court in Parbatbhai Aahir v. State of Gujarat [Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641 : (2018) 1 SCC (Cri) 1] and Gian Singh v. State of Punjab [Gian Singh v. State of Punjab, (2012) 10 SCC 303 :
(2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] .
13. In view of the above and for the reasons stated above, we allow the parties to compound the offences, even though the offences alleged are non-compoundable, as the dispute between the parties predominantly or overwhelmingly seems to be of a civil nature and that the dispute is a private one and between the
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two private parties. Accordingly, it is ordered that on payment of a sum of Rs 10,00,000 by the appellants to the original complainant to be deposited in the bank account of the original complainant within a period of two weeks, the criminal proceedings being CR Case No. 40-C of 2014 pending in the Court of the learned CJM, Tinsukia, stand quashed. On furnishing proof of deposit of Rs 10,00,000, the Registry to return the amount of Rs 3,75,000 along with interest, if any, to the appellants herein, which the appellants have deposited pursuant to the earlier order of this Court.
14. The present appeals stand disposed of accordingly in terms of the above."
10. Bearing in mind the above facts and circumstances and on perusal of the charge sheet material, though the offences leveled against the petitioner-accused are under Section 376 of IPC and also under Sections 5L and 6 of POCSO Act and the alleged offences are non- compoundable in nature, in the case of Gaian Singh the Hon'ble Apex Court has described the extent of power to be used under Section 482 of Cr.P.C. in quashing the criminal proceedings where the parties have settled the matter although offences are not compoundable, wherein it has
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been observed that it can exercise its power (i) to prevent abuse of process of any Court or; ii) to secure the ends of justice. It can also exercise its power where in the opinion of the Court continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties put to an end and peace is restored, securing the ends of justice, keeping in view above aspect.
11. As could be seen from the submissions made by the parties, the parties have compromised the matter amicably and they have got married, they have also produced the wedding card for having married on 19.2.2020 at St.Paul's Church, Balkunje and now respondent No.2 who is also virtually present submitted that now she is pregnant and they are leading a happy marital life.
12. When both the victim as well as accused have compromised the matter and they have married, if the
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proceedings initiated are continued, the family which has been already settled peacefully is going to be disturbed and continuation of criminal proceedings will be a futile exercise, when the victim has got married the accused. On the contrary, when a family is going to be settled after the alleged incident, it will be a boon to the Society by accepting the compromise the stigma which will be on the victim in the society will be vanished, a status of wife will be given, she can walk in the street by raising her head and it will also send a good signal in the Society to live happily.
13. It is well settled proposition of law that if they are able to understand the consequences and had a physical contact and thereafter they have also got married, then under such circumstances, this court can hold that it is a fit case in order to meet the ends of justice to accept the compromise. This case is considered to be a peculiar facts and circumstances. When both the victim and accused have got married and they intended to live a matrimonial
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relationship, then continuation of the proceedings will disturb their family life. In that light, I am of the considered opinion that the compromise which has been entered into by the parties can be allowed.
14. Keeping in view the ratio laid down in the case of Gian Singh (quoted supra) it has been observed that the High Court is having power under Section 482 of Cr.P.C. to weigh the material on record and take an appropriate decision in accordance with law. Depending upon the facts and circumstance of each case, when the parties have entered into an amicable settlement and have compromised the matter, then under such circumstances, I am of the considered opinion that, if the compromise is accepted, two families will live happily. On the contrary, the settlement entered into will give a life to the victim who is affected more and the subsequent child which is going to born.
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15. In the light of the discussion held by me above and as the parties have entered into a compromise, I am of the considered opinion that, it is a fit case to exercise the power under Section 482 of Cr.P.C. and permit the compromise and settle the dispute amicably.
With the above observation, the joint affidavit filed by the petitioner-accused and respondent No.2 has been taken on record.
Accordingly, the petition is allowed. The proceedings in Special Case No.101/2020 (Crime No.87/2019) of Mulki Police Station, D.K.District, Mangaluru, for the offence punishable under Section 376 of IPC and also under Sections 5(L) and 6 of POCSO Act on the file of Additional District and Sessions Judge, FTSC-1 (POCSO), D.K. Mangaluru, is quashed.
Sd/-
JUDGE *AP/-