Bajma Khatoon and Others vs The State of Bihar and Another

Navin Sinha, J.—The prayer in this application u/s 482 Code of Criminal Procedure on behalf of the Petitioners was to quash the order dated 30.11.2002 passed by the Chief Judicial Magistrate, Purnea in C.A. Case No. 984/2002 whereby the learned Magistrate took cognizance against the Petitioners u/s 376 and 313 of the Indian Penal Code.

The opposite party No. 2 filed Complaint Case No. 984/2002 before the Chief Judicial Magistrate, Purnea on 22.8.2002 alleging that she was a minor. One Abu Amir, accused No. 1, caught hold of the opposite party No. 2/complainant and committed rape upon her. The said Abu Amir was alleged to have (sic) her repeatedly. As a result she conceived. The present Petitioners are said to have called opposite party No. 2/complainant to their house and administered betel etc. to her, as a result of which she aborted the pregnancy. The Petitioners herein are said to be mother, father and maternal uncle of accused No. 1 (sic) Amir.

The learned Magistrate on these allegations after holding an inquiry u/s 202 Code of Criminal Procedure took cognizance u/s 576 and 313 IPC by his order dated 30.11.2002. Though the Petitioners originally assailed the very order of cognizance but it appears subsequently that consequent to fresh development in the matter and perhaps upon social pressure, the complainant, the opposite party No. 2 herein, reconciled the matter and in pursuance of which Abu Amir has married the complainant. A supplementary affidavit has been filed on 13.4.2004 sworn by the opposite party No. 2 herself. In para 2 of the same it is specifically stated that she has been married to Abu Amir on 4.1.2004 In accordance with Muslim rites and Annexure A has been appended in support of the same. It has been stated in para 3 that a compromise application has been filed in the Court of Chief Judicial Magistrate, Purnea in 2004 which is appended as Annexure B series to this affidavit by Opposite party No. 2.

Learned Counsel for the Petitioners therefore submits that there is no justification for the present prosecution to continue and that the same therefore deserves to be accordingly quashed by this Court in exercise of its power u/s 482 Code of Criminal Procedure.

Section 320 Code of Criminal Procedure sets out details of the offence which are compoundable between the parties and those which are compoundable with the leave of the Court. The two provisions under which the present prosecution has been initiated do not come within the purview of Section 320 Code of Criminal Procedure. The question therefore arises whether this Court would be competent to allow compounding and quash the prosecution on that ground notwithstanding the bar of Section 320 Code of Criminal Procedure, in the larger interest of justice. Learned Counsel for the Petitioners In this regard relied upon the decision of the Apex Court reported in 1988 PLJR 468. In the said case, in the special circumstances, compounding was allowed for an offence u/s 307 IPC by the Apex Court. The direction however was to the trial judge to accord permission to compound the offence after being satisfied with the compromise agreed upon direction was that the connected papers filed before the Apex Court be transmitted to the trial court for the purpose and the parties, if they so wish, may file additional documents. He also relied upon another judgment of the Apex Court reported in (2004) 4 SCC 675. In the said case the compounding was assented to by the Apex Court in a proceeding u/s 498A which similarly was not compoundable u/s 320. While dealing with the issue of matrimonial disputes the Apex Court held that it would be the duty of the court to encourage genuine settlement. It was also observed therein that given the fact of the parties having arrived at settlement and the parties having revived their relationship as husband and wife, with such eventuality there would be almost no chance of conviction as quite obviously in view of the compromise no evidence would be forthcoming against the accused persons. It was thus noticed that there would be no reasonable likelihood of the accused being convicted of the offence.

The question that would yet then be appropriate to decline exercise powers of quashing as that would be permitting the parties to compound the non-compound-able offence, was clearly answered in negative. The lack of bonafides to allow compounding in such cases would be entirely a different matter. The width and contour of the jurisdiction u/s 482 possessed salient feature to advance cause of justice and not to stultify the same in a rigid hide bound approach. Their lordships then summed up that the power u/s 482 was not limited by the provisions of Section 320 of the Code of Criminal Procedure and that the proceedings could be quashed in individual cases on their special facts notwithstanding the limitation of Section 320 Code of Criminal Procedure.

In the present case undoubtedly the offence committed upon the opposite party No. 2 was heinous in its originality. It was also a crime against the society quite apart from the crime against the individual. The humiliation and consequence of sexual assault on a woman and its implication and ramification in the opinion of the Indian society need not be over emphasised. What would have been the position of the complainant, as victim of sexual assault, had the parties not settled their differences outside the court. Would the prosecution of the persons who committed sexual assault on her and his relatives who forced abortion on her and their consequent conviction restore the honor of the complainant/victim or her social prestige. The answer clearly is ''No''. It Is in this background that this Court is Inclined to consider the exercise of its Inherent powers u/s 482 to allow compounding between the parties notwithstanding that both the Sections under which cognizance has been taken are non-compoundable. The main accused Abu Amir has now got married to the complainant and both are now living as husband and wife. There could have been no greater act of penance on the part of the said Abu Amir. He could be said to have washed off his sin. As far as the complainant is concerned she could not have asked for better justice.

The difficulty however arises by reason of the fact that Abu Amir is not a party to the present proceeding. Secondly the compromise filed in the court below on 6.1.2004 as contained in Annexure B to the counter affidavit of Opposite party No. 2 does not reflect that it has been signed by the complainant and all other five accused persons as named in the complaint case. This would be an essential requirement on the part of the parties to the complaint case for compounding. In the said facts and circumstances this Court therefore expresses its difficulty in accepting the compromise at this stage and quashing the proceedings for the two reasons as aforesaid.

The present application is therefore disposed off with the aforesaid observations in the light of the observations of the Supreme Court in 1988 BLJR 468 with the direction to the court below to accord permission to compound the case. The trial Magistrate shall require the parties, i.e. five accused persons and the complainant, to file a joint compromise petition. He shall satisfy himself with the validity and genuineness of the compromise; before passing final orders. The parties shall also be at liberty to produce copies of their applications filed here for that purpose, before the court below as also to file additional documents, if any, in support thereof should they wish to do so.

This application is accordingly disposed off.