Saket Sharma vs State Of Chhattisgarh

Ramesh Sinha, CJ

The petitioner has prayed for the following reliefs in this petition:

“a. A writ and/or an order in the nature of appropraite writ do issue directing call for the relevant records from the concerned Court below relating to the petitioner’s case for its kind perusal.

b. A writ and/or an order in the nature of appropriate writ do issue quashing the FIR and resultant charge sheet (Annexure P-1) being abuse of process of court and abuse of process of law and in the facts and circumstances of the case.

c. A writ and/or an order in the nature of appropraite writ do issue quashing the order framing charge against the petitioner dated 27.2.2019 (Annexure P-3) being illegal arbitrary and in excess of jurisdiction, in the facts and circumstances of the case.

d. Any other relief which this Hon’ble Court may deem fit in the facts and circumstances of case.

e. Cost of the petition may also be awarded.”

The facts, in brief, as projected by the petitioner is that the respondent No. 2 lodged a complaint to the Police Inspector, Mahila Thana Sector-6, Bhilai, District Durg, later on changed to Section-6 Police Station, Bhilai with the title लडके द्वारा धोखा एवं शादी के नाम पर संबंध बाबत् which is a part of charge-sheet. The sum and substance of the complaint is that the petitioner promised to respondent No.2 that he will marry her but the respondent No.2 has not agreed as there was caste difference but the petitioner has allegedly convinced her that he will take care and for that purpose, even he is ready to leave his parental home and looking into dedication and caring, the respondent No.2 agreed and they started living together. However, when the petitioner was promoted and posted at Balaghat (MP), he has refused to marry the respondent No.2 and started misbehaving using abusive language and also insulted her in the name of her caste as she belonged to Scheduled Caste (for short, SC). For this reason, the respondent No.2 has desired that reasonable be action taken to get her justice. It appears that the said police station has received the complaint on 2.5.2018, however, no action has been taken by the said police station and thereafter the matter has been transferred, for the reasons best known to the respondent State authorities, to the police station AJAK/Crime, Kanker. It appears that Deputy Superintendent of Police concerned has written a letter of the Superintendent of Police and sought leave for registration of the case vide letter dated 19.9.2018 as on that date the Deputy Superintendent of Police has found that the complainant has submitted in support of her version 'love letters' written to her on her birthday and a compact disc consisting of obscene videos and screen shots of the messages exchanged in between them in Whatsapp. The Deputy Superintendent of Police has found that the petitioner and respondent No.2 were known to each other being co-employees but no evidence was there showing intimate relationship between them. Further in categorical terms it has been said that as respondent No.2 is saying that the petitioner has duped the respondent No.2 by giving her impression or making her as wife and since the respondent No.2 belonged to scheduled caste, therefore, the provisions of Section 3 (2) (v) of Act of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the Act of 1989) is also attracted. After the inter-departmental correspondence, reluctantly the police has registered FIR No. 329/18 dated 2.10.2018, however, at that point of time, the police found that it is true that in between the petitioner and respondent No.2 being co-employees posted at the same place and office, official talks were held but they both were aware that their parents are in search of bride or bridegroom for them and there is no question of marriage between them as the respondent No.2 herself agreed that she has lodged a false report etc. Letter dated 02.06.2018 written by the office of the Additional Superintendent of Police to the office of Superintendent of Police, Durg also finds place in the charge sheet. Since the FIR has been registered and further investigation has been made and during the course of investigation, the police have found that respondent No.2 is originally resident of Vardha (MS) and in that region, their caste is treated as Scheduled Caste and on that basis, for the said reason specifically mentioning that respondent No.2 belongs to Mahar caste in that region and caste certificate is issued on the basis of earlier certificate of District Magistrate. Chandur (MS).

In the charge sheet, the evidence which has been filed showing intimate relationship is alleged Whatsapp chatting between the petitioner and respondent No. 2. However, the chatting between them will make it clear that atleast the respondent No.2 is involved with two other persons one namely Amit Kumar and other namely Binay Kumar and it is respondent No.2 who used to write or invite for fulfillment of her sexual desire and for that purpose, sent a book namely '50 shades of grey with the remark 'Happy Birthday Sir'. There are various shortcomings in the said correspondences particularly it appears that respondent No.2 has made interpolation in chats. and deliberately deleted all those chats from her side which are incriminating or against the interest of respondent No.2, but the fact remains that whatever chats are placed in the charge sheet show active participation of the respondent No.2.

It is the petitioner’s says it was the respondent No.2's lust which has made her to have intimate relationship with various males wherever and whenever the she had the chance and finally the respondent No.2 in fulfillment of her avowed object to trap the petitioner so that the petitioner may be forced to give her status of 'wife', not allowed him to go out of her reach even after the petitioner's posting at the far-away place and continued chatting. The records of chatting, particularly messages and photographs/ video posted by the respondent No.2 will make it clear that it is only the respondent No.2 who is at major fault or atleast in pari delicto and merely the respondent No.2 being the SC woman despite reaching to such conclusion charge sheet has been filed against the petitioner. In other words, various parts of the charge sheet favours the petitioner's version and further show that under compelling circumstances that if the charge sheet is not filed against the petitioner, the police officers may be involved invoking Section 4 of the Act, 1989

Mr. Sharma, learned counsel for the petitioner submits that the Whatsapp chat shows the nature of intimate relationship and also photographs posted by respondent No.2 by using web or Information Technology makes the respondent No.2 liable as well under Section 67 and 67A of the Information Technology Act, 2000 (for short, the Act of 2000) for which the petitioner has been charged with as both were sailing in the same boat, but the respondent No.2 has not been charged with or no action against her has been taken and therefore the petitioner filed an application under Section 156 (3) of CrPC before the Court concerned and the learned JMFC, Kanker has ordered for filing of final report against the respondent No.2 as well because the contents of the application make cognizable offence punishable under said section of the Act, 2000 and also offence against administration of justice. Mr. Sharma submits that in the above situation, the prosecution should not have adopted partial approach by filing charge sheet under the aforesaid sections and even after filing of charge sheet in case of such nature, framing of charge vide order dated 2.3.2019 under Section 376 (2)( ढ) 294, 354 (1) of the IPC & Section 3 (2) (v) & 3 (1) (u) of the Act of 1989 and Section 67 and 67A of the Act of 2000 suffers from illegality and said illegality should not be allowed to continue. There is no evidence admissible in nature by which it can be said that any charge much less the charge framed against the petitioner has been made out. Merely, a lady belonging to SC community in one State although not treated as SC in the this State has stated under Section 161 CrPC statement and thereafter also repeated the same in her statement recorded under Section 164 CrPC and when there is no corroborative piece of evidence, framing of charge and continuance of trial not only amounts to abuse of process of court and abuse of process of law but also violation of a citizen's fundamental and constitutional rights.

Mr. Sharma further submits that the very initiation of the proceedings by registration of FIR by the police station having no jurisdiction and thereafter investigation by the authority without jurisdiction, filing of charge sheet and further continuance of the proceedings is abuse of process of court and abuse of process of law. The prosecution has come with improbable story or the story of prosecutrix as put-forth has several shortcomings and the prosecutrix comes within the purview of pari delicto and in such case, robing the petitioner in case and trial of offence of grievous nature amounts to violation of fundamental and constitutional rights of the petitioner. The version of respondent No.2 should not be treated in the case in hand as gospel truth when from time to time the prosecutrix is coming to the authorities with oscillating version and embellishment in various statements are writ large, the continuance of criminal proceeding will infringe the petitioner's fundamental constitutional right. Framing charge against the petitioner under the above mentioned charges, without prejudice to each other, is bad in law and the criminal prosecution should not be used as an instrument to settle private or personal vendetta or to pressurize the petitioner.

In support of his contentions, Mr. Sharma relies on the decisions rendered by the Supreme Court in Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra & Others {(2019) 18 SCC 191}, Pramod Suryabhan Pawar v. State of Mahrashtra & Another {(2019) 9 SCC 608}, Prashant Bhartiya v. The State of Delhi & Another {Criminal Appeal No. 708/2021, decided on 30.07.2021} judgment rendered by learned Single Judge of Karnataka High Court in Sri Sathish K & Others v. State of Karnataka {2022 SCC OnLine Kar 899}, judgment rendered by a learned Single Judge of Rajasthan High Court in Radhakrishna Meena v. State of Rajasthan {CRLMP No. 4952/2019, decided on 23.02.2022} and Saurabh v. State of Rajasthan & Another {CRLMP No. 9687/2022, decided on 06.01.2023}, order passed by the learned Single Judge of the Madhya Pradesh High Court in Gopay Oyam v. State of Madhya Pradesh in M.Cr.C. No. 37322/2021, decided on 12.05.2022, judgment rendered by the learned Single Judge of Kerala High Court in Kripesh Krishnan v. The State of Kerala, in CRL.MC. No. 7507/2017, decided on 26.06.2023 and a Division Bench judgement in Ramachandran @ Chandran v. State of Kerala & Others, in CRL.A. No. 568/2020 decided on 30.04.2022, judgment rendered by the learned Single Judge of Delhi High Court in Arshad Ahmad v. State of NCT & Another {2022 SCC OnLine Del 1736}, a Division Bench judgment of the Bombay High Court in Tarun Pratapmal Lohar v. The State of Mahrashtra & Another, in Criminal Writ Petition No. 2641/2022, decided on 27.02.2023, a judgment of learned Single Judge of High Court of J&K and Ladhakh in Ashok Kumar v. Union Territory of Jammu & Kashmir, {B.A. No. 206/2021, decided on 21.02.2022}, and the order dated 05.04.2022 passed by a learned Single Judge of this Court in Kabir Das v. State of Chhattisgarh & Another {Cr.M.P. No. 907/2021}.

On the other hand, Mr. H.S.Ahluwalia, learned Deputy Advocate General appearing for the respondent No. 1 would submit that the police has registered the offence on the complaint lodged by the respondent No. 2 and now the trial is under progress. He submits that at this stage, neither the FIR nor the charge-sheet or the other proceedings pursuant to the FIR can be quashed as the evidence of respondent No. 2/complainant has already been recorded by the learned trial Court wherein she has deposed against the petitioner and the case is fixed for recording of the evidence of remaining prosecution witnesses. In support of his contention, he relies on the decision of the Supreme Court in Kapil Gupta v. State of NCT of Delhi & Another {2022 SCC OnLine 1030}.

Mr. Jaideep Singh Yadav, learned counsel for the respondent No. 2 submits that now the respondent No. 2 and the petitioner have settled their dispute amicably and the respondent No. 2 does not want the prosecution to be continued against the petitioner and intends to withdraw all the allegations levelled against the petitioner.

We have heard Mr. B.P.Sharma, learned counsel for the petitioner as well as Mr. H.S.Ahluwalia, learned Deputy Advocate General for the State/respondent No. 1 as well as Mr. Jaideep Singh Yadav, learned counsel for the respondent No. 2.

From perusal of the records, it is evident that the petitionerhas filed IA No. 3 of 2021 which is an application for disposal of the matter in the light of law laid down by the Supreme Court in the matter of Sonu v. State of U.P. {(2021) SCC OnLine 181} stating that since the facts and issue involved in the present case is squarely covered by Sonu (supra), which was also relied upon by this Court in Monika Sarthi v. State of Chhattisgarh & Another {WA No. 83/2021}, when the complainant herself has filed an affidavit which amounts to absolving the petitioner from the charges, this petition may also be allowed. Alongwith the said IA, the petitioner has filed a copy of the affidavit sworn by the respondent No. 2/complainant filed before the Court of Sessions Judge, Kanker, in Sessions Trial No. 7/2019, deposing that she had a love affair with the petitioner and they had physical relationship also and at present, she is having no complaint against the petitioner and furthe that she does not want any action against the petitioner.

Further, by way of a covering memo dated 03.03.2022, the petitioner has filed a copy of the order sheet dated 07.02.2022 whereby the petitioner has been acquitted of the charges under Section 294 of the IPC by the Special Judge (Atrocities), Uttar Bastar, Kanker, however, the learned Special Judge has directed that the trial with respect to offence under Sections 354(घ), 450, 376(2)( ढ) of IPC, 3(2)(v) and 3(1) (ध) of the Act of 1989 and Section 67, 67(a) of the Act of 2000 shall continue. The petitioner has also filed a copy of the application which was made by the complainant/respondent No. 2 for compromise on 29.02.2020 before the Sessions Judge, Kanker. Similarly, a copy of the application dated 29.02.2020 has also been filed in which the complainant/respondent No. 2 has prayed for closure of the case pending against the petitioner alongwith an affidavit wherein she states that she wants to take back her complaint.

The offences under which the charge-sheet has been filed are all non-compoundable offences and even if the complainant wishes to take back her complaint, the same may not be allowed. Firstly, the complainant has made serious allegations against the petitioner that she has been abused and exploited sexually and has been uttered filthy language naming her caste. For the reasons best known to the respondent No. 2, she now intends to withdraw her complaint and does not want any action to be taken against the petitioner which cannot be done at this stage when the trial is under progress and the statement of the complainant/respondent No. 2 has been recorded by the learned Trial Court where she has deposed against the petitioner with regard to sexual exploitation. Further, out of total 21 prosecution witnesses, statement of 19 witnesses have been recorded and only two formal witnesses’ statements are left to be recorded.

The Supreme Court, in the matter of Kapil Gupta (supra), has referred to the judgment passed in Narender Singh v. State of Punjab {2014 (6) SCC 466} at paragraphs 29 observed as under:

“29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

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.

29.3 Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4 On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

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 cases.

29.6 Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7 While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/ material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court...”

As observed by the Supreme Court in Narender Singh (supra), timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/ investigation. In the case in hand, the prosecution evidence is almost complete as out of total 21 prosecution witnesses, 19 have already given their statement, and even in the deposition made before the learned trial Court, the complainant/respondent No. 2 has deposed against the petitioner and now at this juncture, filing any application/affidavit for compromise or compounding of the offences cannot be accepted.

Even otherwise, the offences alleged are in relation to sexual exploitation and uttering caste based remarks against the complainant by the petitioner which cannot be termed to be a private dispute between the parties. It has serious adverse societal effects. Therefore, the criminal proceedings on the basis of alleged compromise of the accused and the victim cannot be quashed. The same is not legally permissible. The trial of the case is required to proceed where the accused/petitioner will have the opportunity to put forth his version and to take defence, whatsoever may be available to him.

In view of the ratio laid down by the Supreme Court in Kapil Gupta (supra) and Narender Singh (supra), we are of the considered opinion that this is not a fit case where we should exercise the powers under Article 226 of the Constitution of India to quash the FIR and the consequential proceedings or to quash the order framing charge against the petitioner dated 27.2.2019 (Annexure P-3).

Accordingly, this petition is dismissed. Interim order dated 03.03.2022 passed by the learned Single Judge also stands vacated.