Akash Gupta vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J.

Though there are consistent ratios as propounded by the various High Courts as well as the Apex Court that heinous offences, including the offence of the nature, at hand, i.e. under Sections 376 and 506 of I.P.C., it ought not to be compounded as it would carry a negative message to the society. But, there are instances, which have been laid down by the judicial precedence that invariably the said aspect and ratio of law cannot be taken as to be an un-invincible factor invariably in all the cases to be applied with same yardstick. The effect and circumstances in each case have to be dealt with in its peculiar set of circumstances. This would be one of those cases, which will be falling in the exception to the principle of compounding, as laid down by the various judgments of the Hon'ble Apex Court, which would be dealt with in subsequent paragraphs.

In the case, at hand, there have been an F.I.R. registered by the complainant/respondent No. 2, being F.I.R. No. 0046 dated 27th January, 2018, for the offences under Sections 376 and 506 I.P.C., which have been committed on 27th January, 2018. For the offences, as alleged by the complainant/respondent No.2 in the F.I.R., an investigation was held and concluded by way of submission of the chargesheet, being Chargesheet No. 54 of 2018 dated 11th February, 2018, which on its submission before the District and Sessions Judge, has been registered as Session Trial / Special Session Trial No. 2 of 2018, State Vs. Akash Gupta, and the same is pending consideration after issuance of the summoning order dated 21st February, 2018. It is on the receipt of the summoning order, the present C-482 Application has been preferred by the applicants / accused for the following reliefs :-

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the chargesheet dated 11-2-2018 (Annexure-2) & cognizance order dated 21-2-2018 (contained in Annexure-3) further to quash the entire proceedings of Special Sessions Trial No.2/2018, State Vs. Akash Gupta pending in the court of Sessions Judge / Special Judge SC & ST Act, Dehradun, arising U/s 376, 506 IPC & Section 3(2)(V), 3(1)(S) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

It is further prayed that this Hon'ble court may graciously be pleased to stay the further proceedings of Special Sessions Trial No. 2 /2018, State Versus Akash Gupta pending in the court of Sessions Judge / Special Judge SC & ST Act, Dehradun, arising U/s 376, 506 IPC & Section 3 (2) (V), 3(1)(S) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, otherwise the applicant shall suffer irreparable loss and injury."

The C-482 application was entertained by this Court and this Court vide its interim order dated 23rd March, 2018, the Court considered the affidavit filed by the complainant / respondent No. 2 herself, in which, she has stated that she has married the applicant and has solemnized the same at Kali Mandir, Ponta Marg, Dekhrani. In the affidavit, she also admitted the fact that she lived and continues to live with the applicant as a wife and now she has expressed her desire to get the marriage registered. The relevant part of the order dated 23rd March, 2018, is quoted hereunder :-

"The affidavit is filed by Smt. Sheetal (respondent no.2), in which, she has stated that her marriage with the applicant was solemnized at Kali Mandir, Paunta Marg, Dharkrani and she lived with the applicant as her wife for some time and now she wanted to register her marriage with the applicant before the Marriage Registrar Dehradun. She also stated in the affidavit that physical relation has been maintained by the applicant with her, with her consent without any violence or criminal force.

Considering the submissions, I direct that case be listed on 15.5.2018 after fresh cases.

In the meantime, I permit the applicant who is in jail, move an application for adjournment through an Advocate before the Trial Court, the Trial Court shall consider the same till 15.5.2018"

Considering the affidavit, which has been filed by the parties under the joint signature of the Advocates of the parties on 25.05.2018 and contents of affidavit of complainant dated 21.03.2018 and 22.03.2018, she has made following averments, wherein, they have prayed for that considering the factum of the marriage and its ultimate registration dated 18th May, 2018, which has been brought on record as Annexure-1 to the supplementary affidavit dated 25.05.2018, the proceedings of Special said S.T. No. 2 of 2018, State Vs. Aakash Gupta, had been sought to be quashed. Relevant paragraphs of the affidavit dated 21.03.2018 and 22.03.2018 are quoted hereunder :-

"2. That in view of facts and circumstances narrated in the accompanying misc. application, it is expedient in the interest of justice that this Hon'ble Court may graciously be pleased to quash the chargesheet dated 11-2-2018 (Annexure-2) & cognizance order dated 21-2-2018 (contained in Annexure-3) further to quash the entire proceedings of Special Sessions Trial No.2/2018, State Vs. Akash Gupta pending in the court of Sessions Judge / Special Judge SC & ST Act, Dehradun, arising U/s 376, 506 IPC & Section 3 (2) (V), 3 (1) (S) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, on the basis of amicable settlement.

That with the help of relatives both the parties, i.e. the applicant and the complainant / respondent no. 2 entered into a settlement and now the respondent no.2 doesn't want to press the prosecution against the applicant as her marriage was solemnized at Kali Mandir, Paunta Marg Dharkrani and she lived with the applicant as his wife for some time and now she wants registration of marriage before the Marriage Registrar, Dehradun.

That after the said marriage, the physical relation of applicant with deponent were established with the consent of deponent without any violence or criminal force."

Today, the matter was taken up, the parties are present in person duly identified by their respective counsel, the complainant / respondent No. 2 had supported her stand taken by her in the affidavit dated 21.03.2018 and 22.03.2018, filed along with the C-482 application itself, and she has also made a statement that they have been validly married and their marriage have been registered and they are living together as husband and wife and discharging her matrimonial obligation. Hence, she has, in the application, prayed for that the criminal proceedings as drawn and pending consideration by way of Session Trial No. 2 of 2018, State Vs. Aakash Gupta, pending before the Special Judge, S.C. & S.T. Act, Dehradun, may be quashed.

The prayer, as sought for by the parties to the application for composition of the offence and quashing of the Session Trial, is opposed by the Government Advocate on the ground that the offences under Sections 376 and 506 I.P.C. as has been levelled against the applicant are not compoundable and since they being serious offences, their prayer for composition deserves to be rejected.

There cannot be any doubt about the stand taken by the Government Advocate with regard to the impact of the nature of offence and as to whether the provisions under Section 320 Cr.P.C. could be invoked for compounding the same. But, it has been settled by the various judgment that the powers of the High Court or the Superior Courts under Section 482 Cr.P.C. are not eclipsed and dependent by the provisions contained under Section 320 of the Cr.P.C. as the powers under Section 482 Cr.P.C. are prefaced by the an non obstante clause and it gives an exclusive powers with the High Court that too curb the abuse of process and to meet the ends of justice, the Court can always expand the powers for compounding the offences and even those, which are otherwise not covered under Section 320 of the Cr.P.C.

In relation thereto, the learned counsel for the applicants argues that in such a circumstance where, after levelling of the offence under Section 376 of the Cr.P.C., if the parties have soleminized marriage, and it is a valid marriage recognized under the prevalent law, then even the offences under Section 376 I.P.C. could be compounded.

Considering the aforesaid fact that the parties have settled their scores amicably, they have married and living together as husband and wife, no fruitful purpose would be served to force upon the applicants to undergo the trial, as it would be a futile exercise, more particularly, in view of the various judgments rendered by the Hon'ble Apex Court. The view and argument as canvassed by Government Advocate is permitted to pervade, it will rather result into abuse of process by forcing on trial which would otherwise be of no consequence, except to be that of futility, entailing time and money of parties.

The Hon'ble Apex Court in the case of Gian Singh Vs. State of Punjab and another reported in (2012) 10 SCC 303 has held as follows:

"58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although 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 wrong doing that seriously endangers and threatens well-being of 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 victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under Indian Penal Code or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and 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 victim and the offender and 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 F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of 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.

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 favour 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 Hon'ble Apex Court in the aforesaid case of Gian Singh (Supra) has also dealt with the judgment in the cases of B.S. Joshi and others Vs. State of Haryana and another reported in (2003) 4 SCC 675 and Nikhil Merchant Vs. Central Bureau of Investigation and another reported in (2008) 9 SCC 677.

The Hon'ble Apex Court in the case of B.S. Joshi and others Vs. State of Haryana reported in (2003) 4 SCC 675, has held as follows:

"6. In Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate& Ors. [(1998) 5 SCC 749], this Court with reference to Bhajan Lal's case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers.

It is, thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extra ordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.

In State of Karnataka v. L. Muniswamy & Ors. [(1977) 2 SCC 699], considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in 'negative'. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.

In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [(1988) 1 SCC 692], it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the Court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.

In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."

The Hon'ble Apex Court in the case of Nikhil Merchant (supra) has held as follows:-

"7. In support of the aforesaid contentions made on behalf of the appellant before the High Court, reference was made to the decision of this Court in the case of Central Bureau of Investigation v. Duncans Agro Industries Ltd. (1996) 5 SCC 591 wherein on the basis of facts similar to the facts of this case, this Court had held that even if an offence of cheating is prima facie made out, such offence is a compoundable offence and compromise decrees passed in the suits instituted by the Bank, for all intents and purposes, amount to compounding of the offence of cheating. This Court accordingly, upheld the order of the High Court quashing the criminal complaint after the civil action had been compromised between the parties.

Apart from the said decision, reliance was also placed on another decision of this Court in the case of B.S. Joshi and Ors. v. State of Haryana and Anr (2003) 4 SCC 675 wherein while dealing with the proceedings under Sections 498A and 406 Indian Penal Code involving matrimonial disputes and offences, this Court held that even though the provisions of Section 320 of the Code of Criminal Procedure would not apply to such offences, which are not compoundable it did not limit or affect the powers under Section 482 and the powers conferred on the High Courts and the Supreme Court under Articles 226 and 136 of the Constitution of India. Referring to the decision of this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 this Court observed that the categories indicated in the said case which warranted exercise of power under Section 482 CrPC were only illustrative and not exhaustive. This Court ultimately held that the High Court in exercise of its inherent powers can quash criminal proceedings or a FIR or complaint and Section 320 CrPC does not limit or affect the power of the High Court under Section 482 of the Code.

After considering the said decision in the light of the submissions made on behalf of the respective parties, the High Court took the view that in the Duncans Agro case (supra) this Court was considering the situation involving Section 420 IPC which was compoundable under Section 320(2) CrPC, while in the instant case, the charge sheet was also under Sections 467, 468, 471-A IPC along with the provisions of the Prevention of Corruption Act, which were non- compoundable. The High Court, therefore, held that neither of the said two cases would have application to the facts of this case and rejected the appellant's prayer for discharge from the criminal cases."

The learned counsel for the applicant also places reliance on a judgment rendered by the Punjab & Haryana High Court in the case of Deepak Vs. State of Haryana and another in CRM-M-31825-2017 decided on 19.01.2018, wherein, the Hon'ble High Court Punjab & Haryana while seized with the offences under section 376 (1) (A), 452 and 506 I.P.C. as well as Section 6 of the Protection of Children from Sexual Offences Act, on considering the fact that the applicant has solemnized the marriage, had compounded the offence, while drawing its authority from the judgment in the case of Narinder Singh and others Vs. State of Punjab and another reported in 2014 (6) SCC 466. Para 4, 5, 6, 7, 8 and 9 of the judgment reads as under :-

"4. In normal circumstances, this Court would not entertain a matter when the non compoundable offences are heinous and serious in nature. In the instant case, the offence complained of includes offence punishable under Section 376 IPC and Section 6 of the POCSO Act which is an offence of grave nature. This Court is aware of the fact that time and again it has been held that an offence under Section 376 IPC is a grievous offence and considered as an offence against the society at large and thus, such matters should not be compromised. In the eyes of law, the offence of rape is serious and non-compoundable and the Courts should not in ordinary circumstances interfere and quash the FIR that has been registered.

In a judgment rendered by the Hon'ble Supreme Court in Narinder Singh and others vs. State of Punjab and another, 2014(6) SCC 466, the Hon'ble Apex Court has laid down certain principles and guidelines which should be kept in mind while quashing of FIRs pertaining to noncompoundable offence. For ready reference paragraphs No. 29.2 and 29.5 are reproduced as under :-

"29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure :

(i) ends of justice, or

(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case."

Even in a judgment rendered by the Hon'ble Supreme Court in Madan Mohan Abbot vs State Of Punjab, 2008 (4) SCC 582, it has been held that it is advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings. Relevant paragraph of the said judgment is reproduced herein below :-

"5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other 3 of 5 documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11th January 2004, passed away and the possibility of a conviction being recorded has thus to be ruled out.

We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law."

In the judgment rendered in Gian Singh vs State of Punjab & Anr, reported as 2012(10) SCC 303 the basic principle of law as laid down is that where offences are purely private in nature and do not concern public policy, the power to quash proceedings involving non-compoundable offences on the basis of compromise can be exercised.

Therefore, while relying upon the ratios of the aforesaid judgments, this Court is of the view that the compromise which has been entered into for quashing of an offence under Section 376 IPC and Section 6 of the POCSO Act on the basis of the compromise should be accepted. As 4 of 5 has been held in Narinder Singh & Ors. case (supra) those cases where a settlement is arrived at immediately after the alleged commission of the offence, the High Court may be liberal in accepting the settlement to quash the criminal proceedings. Moreover, there is a specific plea in the petition that continuation of the proceedings under the FIR in question would hamper the settlement of the prosecutrix in future.

Consequently, keeping in view the peculiar facts and circumstances of the present case and in view of the above ratios of law, this petition is allowed and the FIR No. 461 dated 11.12.2015, registered under Sections 376(1)A, 452 and 506 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act at Police Station Hansi Sadar, District Hisar and all subsequent proceedings arising out of the same are quashed qua the petitioner herein."

The Punjab & Haryana High Court has also considered the ratio and the extent of powers which has been conferred to the superior courts, as it has been settled in the case of Madan Mohan Abbot Vs. State of Punjab reported in 2008 (4) SCC 582, wherein, it has been held that that the High Court can quash the proceedings when the parties have settled their disputes on the basis of the compromise and when the Court considering the said circumstances of the each case comes to the conclusion that continuance of the proceedings would be an act of futility leading to no logical conclusion.

There is another judgment of Coordinate Bench of Punjab and Haryana High Court in the case of Dheeraj Kumar @ Kannu Vs. State of Punjab and another, reported in 2015 SCC OnLine P&H 1124. Paragraph Nos. 8, 9, 10 and 11 of the said judgment reads as under :-

"8) In Court on its Own Motion (Lajja Devi) v. State, 2012(4) RCR (Civil) 821, Full Bench of Delhi High Court dealt the controversy in detail and passed the order thereby protecting the matrimonial tie between the couple. This Court in Yogesh Handa v. State of Punjab, 2013(4) RCR (Criminal ) 472 while relying upon the aforesaid judgment of Delhi High Court quashed the proceedings.

9) Had it been a case of 376 not arising out of matrimonial tie this Court would be reluctant to interfere and to rely upon any compromise on the issue, but in view of the fact that allegations of rape have emerged during the subsistence of love affair between the petitioner and respondent No.2 when respondent No.2 was in care and custody of her family members and subsequently they have tied themselves in Jupiter knot and are living happily.

10) This Court is of the view that ultimate trial of the case would result in vacuum and continuance of criminal proceedings would be having adverse effect on the matrimonial relation of petitioner with respondent No.2 since the case is at initial stage.

11) Keeping in view the totality of facts and circumstances, this Court is of the opinion that continuance of criminal proceedings before the trial Court would be an abuse of process of law. Ends of justice would be met if FIR No. 168 dated 25.09.2014, registered under Section 376 IPC, at Police Station City Sunam, District Sangrur along with entire subsequent proceedings in pursuance are quashed. "

Same is the situation in the instant case. Considering the fact that after lodging of the F.I.R. and during the pendency of the proceedings since, the parties have married and now they are residing together and according to the affidavits filed by the complainant, her father, she does not want to prosecute further. It would be absolutely a futile exercise to force the parties to undergo the trial.

Hence, considering the ratio as laid down by the Punjab & Haryana High Court as well as the Hon'ble Apex Court, the present C-482 Application is allowed. The Special Session Trial No. 2 of 2018, State Vs. Aakash Gupta under Sections 376 and 506 I.P.C. and Section 3(2)(V) and 3(1)(S) of S.C. & S.T. Act, pending before the Sessions Judge / Special Judge, S.C. & S.T. Act, Dehradun is quashed. The Compounding Application stands disposed of accordingly.