Rajendra Kumar Behera vs State of Orissa and Another

P.K. Tripathy, J.—This case is taken out of turn from the weekly admission list on the request of learned counsel for the petitioner on the ground of urgency and on consent of learned Standing Counsel.

Learned counsel for the petitioner files certified copy of the F.I.R. That be kept on record.

Heard.

Petitioner is one of the accused persons in G. R. Case No. 987 of 2000 of the Court of S.D.J.M., Jaipur for the offences alleged under Sections 366-A/376/354/34, I.P.C. He prays to quash the said proceeding on the basis of the affidavit filed that they (petitioner and opposite party No. 2) have married in the meantime and that, no useful purpose will be served by pursuing the criminal litigation. In support of that, petitioner relies on the case of Gaurirani Das v. State of Orissa (2002) 22 O C R 418.

On the other hand, learned Standing Counsel referring to the case of Anil Kumar Panda Vs. State of Orissa and Another, argues that the criminal proceeding should not be quashed when the offence is not compoundable in view of the provision in Section 320, Cr. P.C.

In the case of Gaurirani Das (2002 (22) O C R 418) (supra) while in seisin of a similar matter it was held by this Court that--

"4. Though there is dispute with regard to age of the petitioner No. 1, I am of the view that in the circumstances no useful purpose will be served by allowing the proceeding to continue. The Apex Court in the decision reported in 2000 SCC 686 (Fazle Gaffar Khan v. State of West Bengal) while dealing with a similar situation thought it proper to quash criminal proceeding and in the said case allegation was that the victim was minor. Relying on the said decision of the Apex Court, I allow this application and quash the criminal proceeding in G. R. Case No. 205/96 pending in the Court of learned J.M.F.C., Jaleswar."

On a reference to the above noted case of (2000) 10 SCC 10 in the case of Fazle Gaffar Khan and Ors. v. State of W.B. and Anr., the order of the Apex Court reads as hereunder :--

"1. Leave granted.

Though notice has been duly served on the complainant, but there has been no appearance. The State has entered appearance.

The appellant faces criminal proceedings on a charge u/s 366, I.P.C. on the allegation that he kidnapped a minor girl. On the basis of the First Information Report (FIR) the police took up the investigation and submitted a final form. A protest petition being filed by the complainant, the Magistrate treated it as a complaint and took cognisance. The accused moved the High Court u/s 482, Cr. P.C. for quashing of the proceedings. The High Court having refused to quash the proceedings, the present appeal has been filed in this Court. An affidavit of the girl has been filed clearly stating therein that she was married to the appellant-accused. In view of such affidavit, the Court had issued notice pursuant to which the State entered appearance, but the complainant did not make any appearance. In the light of the said affidavit of the girl admitting the marriage between her and the present appellant and the statement made by Ms. Indira Jaising, learned senior counsel appearing for the appellant that a child has been born, we think it in the interest of justice to quash the criminal proceedings. We, therefore, allow this appeal and direct that the criminal proceedings be quashed."

In the case of Anil Kumar Panda Vs. State of Orissa and Another, posted with a similar situation, this Court referred to the decision of Apex Court in the case of Nathan Raul v. Subhra Raul (Special Leave to Appeal (Civil) No. 12303 of 1998) wherein direction was given for appropriate order on the basis of settlement between the parties and the case of Arnit Das Vs. State of Bihar, in which the well settled principle has been reiterated by the Apex Court that :--

"20. A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as contemplated by Article 141. That which has escaped in the judgment is not ratio decidendi. This is the rule of a sub-silentio, in the technical sense when a particular point of law was not consciously determined. (See State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, para 41)."

and held that the ratio in the case of Ram Lal and Another Vs. State of Jammu and Kashmir, and Surendra Nath Mohanty and Anr Vs. State of Orissa, have binding effect and the precedent is to be followed accordingly.

In the case of Fazle Gaffar Khan (2000 SCC 686) (supra) the Apex Court did not make any comment oh the order of High Court refusing to quash the proceeding by invoking the inherent power but while exerising the jurisdiction under Article 136. their Lordships were pleased to make the decision in the manner as quoted above. The jurisdiction of the Supreme Court, be it under Article 136 and/or Article 32 of the Constitution of India is distinct and exclusive and power and jurisdiction u/s 482, Cr. P.C. cannot be equated with that. Under such circumstances, this Court finds that in the case of Fazle Gaffar Khan (2000 SCC 686) (supra) the Apex Court has not propounded the principle for quashing of a criminal proceeding involving the offence of kidnapping by exercise of inherent power u/s 482, Cr. P.C. only because kidnapped girl has married to the perpetrator of the crime.

As noted above in the case of Ram Lal and Another Vs. State of Jammu and Kashmir, and Surendra Nath Mohanty and Anr Vs. State of Orissa, , the Apex Court has reiterated on the principle that there should not be compounding of non-compoundable offences by use and exercise of inherent power in view of the provision in Sub-section (9) of Section 320, Cr. P.C. When such decisions of the Apex Court, have neither been overruled or distinguished by the Apex Court in any subsequent decision and when no latter decision of a coordinate or larger Bench of the Apex Court has been placed regarding contrary view, if any, therefore, this Court is duty bound to follow the ratio in the cases of Ram Lal and Another Vs. State of Jammu and Kashmir, and Surendra Nath Mohanty and Anr Vs. State of Orissa, because such is the binding precedent not only to be followed but also to be respected.

In the case of Arun Shankar Shukla Vs. State of Uttar Pradesh and Others, the Apex Court has held that (para 2 of Cri LJ) :

"It is true that u/s 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But the expressions "abuse of the process of law" or to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary power to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court, to achieve the said object. It is well nigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provisions of the Code."

That ratio has been followed by this Court in Anil Kumar Panda Vs. State of Orissa and Another, to hold that (para 10) :

"The ratio in the above quoted passage precisely prevents invoking of inherent power in matters which are governed or covered by any specific provision in the Code and also in cases where granting the claimed relief by invoking the inherent power would infringe any specific provision of the Code."

The fact of kidnapping not being disputed by the accused-petitioner, it is not desirable for this Court to grant protection to the petitioner whose present status is that of a kidnapper. Kidnapping a girl from the custody of the guardian even if for the purpose of marriage if makes out offence of kidnapping or abduction, this Court should not grant any undue protection to a person accused of such crime. It may so happen that because of an amicable settlement between the parties, prosecution may suffer for want of sufficient evidence resulting in acquittal but that is no reason to grant protection to an accused of heinous crime. Apart from that if the prosecution and the trial Courts shall be vigilant to peruse the measures as provided in Section 340, Cr. P.C. and corresponding relevant provisions in the Indian Penal Code then that shall cater to the need of discouraging tendering false evidence. On the other hand, grant of such protection to persons accused of such heinous crime, will lead to a chaotic situation in the society and shall tend to encourage people to commit such offence on the assurance of law remaining as their protector in the eve of performing marriage with the victim girl after such kidnapping. In other words, a personal benefit to an individual accused will lead to disastrous consequences in the society. When the inherent power has been vested with this Court to be exercised in a just and proper case, within the parameter provided in that section, Court has to circumspect the whole situation and the consequences thereof before invoking the same. As it is well said, ''more the power more the restraint.''

Apart from that the investigating and prosecuting agency should not be at the mercy of the victim or the informant so as to dance to their tune inasmuch as when they wish investigation should be done and for any reason (i.e. either due to inducement, threat or otherwise) if they compromise then the investigation should be closed or the criminal proceeding shall be quashed. State provides the aforesaid machineries for preventing wrong and protecting the victims. Under such circumstances, when the State has done its job by bringing to book the wrong doer, Court should allow a logical and legal conclusion to the criminal proceeding. What else an Indian girl can do after being kidnapped and ravished when the perpetrator of the crime proposes for a marriage? Therefore, marriage with the victim girl is not a solution so as to grant protection to such a criminal. If such a protection can be granted to a kidnapper and a rapist then why such protection shall not be granted to a murderer who comes within some sort of such a solution of profusedly compensating the deceased''s family. There is no end to this logic if individuals shall be looked at the cost of the law and the interest of justice. Above all, when the codified law does not permit compounding of such offences, petitioner''s prayer to quash the criminal proceeding on the ground of amicable settlement is definitely to over reach the law as provided in Section 320, Cr. P.C.

Under the given facts and circumstances and the position of law as noted above, this Court finds no exception for a prosecution against the petitioner simply because he has married to the victim lady. If at the stage of consideration of charge or trial, accused shall be capable of proving on record, if acceptable at such stages, that there does not exist prima facie case for any or all the offences for which he has been charge-sheeted then that shall be appropriately considered by the trial Court but strictly in accordance with law. For the reasons indicated above, this Court finds no merit in the application u/s 482, Cr. P.C. and, therefore, the same stands rejected and the Criminal Misc. Case is dismissed.