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Soni Nihal Dinesh Bhai and another vs Sandeep Patel and another

Karnataka High Court · Decided on 8 February 2017 · Citation: (2017) 02 KAR CK 0177

HON’BLE JUDGES
John Michael Cunha
CASE NUMBER
9463 of 2016

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Judgment

1 paragraphs · 1,762 words
1.

Whether the High Court has power under Section 482 of Criminal Procedure Code, 1973 for quashing of criminal proceedings for serious offence like rape, on the ground of settlement between an offender and a victim is the question that arises for consideration in this petition. 2. The facts giving raise to the petition are as follows: On 19-8-2015, respondent 1-the uncle of the victim lodged a complaint before the Nelamangala Town Police Station alleging missing of his niece since 19-8-2015. On the basis of this complaint, a missing case was registered by the Nelamangala Police Station in Cr. No. 245 of 2015. Thereafter, the respondent-Police recorded the further statement of the victim on 27-8-2015 wherein the victim specifically alleged that when she was going to the College, she came to know the petitioner 1 herein through Facebook and on 19-8-2015 at about 5.00 p.m., the petitioner 1 came near her house and made her to sit in a taxi and took her to Airport. But as they did not get the flight to Gujarat, he took her in a taxi to BTM Layout and booked a room in a lodge and in the night, he committed forcible intercourse on her and on the next day morning, he took her in another taxi on the pretext of taking her to Gujarat and left her at Hubli and at that time, he handed over Rs. 3,000/- to her. The victim has further alleged that from Hubli, she went to Pune and from there to Ahmedabad and on 23-8-2015 in the midnight, she reached her home. Based on the statement of the victim the Police incorporated charges under Sections 366-A and 376 of Indian Penal Code, 1860 and Section 6 of Protection of Children from Sexual Offences Act, 2012. After investigation, the police laid the charge-sheet against the petitioner 1 for the above offences before the Special Court and the same is numbered as Spl. Case No. 104 of 2016. 3. Petitioner 1- the sole accused and the victim (petitioner 2) have presented a joint petition before this Court under Section 482 of Criminal Procedure Code, 1973, seeking to quash the entire proceedings launched against petitioner 1 in Spl. Case No. 104 of 2016. In the petition, it is stated that the petitioner I who in love with the petitioner 2 and he had convinced his parents and had got their consent for his marriage with the petitioner 2. But on coming to know about the plan hatched by parents of petitioner 2 to marry her to a person of her caste, he came over to Nelamangala Town in search of petitioner 2. Petitioner 2 was also against the marriage arranged by her parents, hence she eloped along with the petitioner 1 on 19-8-2015. On 23-8-2015, the father of the petitioner 2 brought petitioner 2 to Bengaluru and on 27-8-2015, respondent 2-Police coming under the influence of the father of the petitioner 2 recorded a false statement of petitioner 2, falsely alleging that the petitioner 1 has committed rape on the petitioner 2 in a lodge at Bengaluru. 4. It is further stated that the respondent-Police coming under the influence of the father and the uncle of petitioner 2 have filed charge-sheet alleging falsely that petitioner 1 has committed offences punishable under Sections 366-A and 376 of Indian Penal Code, 1860 read with Section 6 of POCSO Act. It is further stated that petitioners 1 and 2 have contracted marriage and are living as husband and wife. But the Special Case No. 104 of 2016 which has been foisted against petitioner 1 on the basis of the false charge-sheet filed by respondent 2 is causing hardship to the petitioner as the petitioner 1 has to travel all the way from Nakatrana in Kutch District, Gujarat near India-Pakistan border to attend the Court at Bengaluru. On these grounds, the petitioners have sought for quashing of the proceedings. 5. I have heard the learned Counsel for the petitioners and the learned Special State Public Prosecutor. 6. Placing reliance on the decision of the Hon''ble Supreme Court in the case of Narinder Singh and Others v. State of Punjab and Another (2014)6 SCC 466 the learned Counsel for the petitioners submits that the allegation made against the petitioners are totally false and baseless. Petitioner 1 who is accused of alleged offence has already married the victim, as evidenced in the certificate of marriage produced along with the petition. Under the said circumstances, entire proceedings deserve to be quashed. Even otherwise, it is the submission of the learned Counsel that having regard to the fact that the victim herself has denied the incident and has filed a joint petition disputing the allegations made against petitioner 1, there is no likelihood of petitioner 1 being convicted for the alleged offence and the entire exercise carried on before the Trial Court would be an exercise in futility and therefore, in the interest of justice, the entire proceedings require to be quashed. 7. Learned Additional State Public Prosecutor however has seriously opposed the petition contending that the offence alleged against the petitioner is a serious offence and any settlement between the offender and the victim cannot have any legal sanction and therefore, merely on the ground of the alleged marriage between the petitioner 1 and the victim, the criminal proceedings cannot be quashed at this stage. 8. I have bestowed my careful consideration to the submissions made by the learned Counsel for the parties. 9. In what cases power to quash the criminal proceedings or complaint or FIR may be exercised where the offender and the victim have settled their dispute is no more res integra in view of the decision of the Hon''ble Supreme Court of India in the case of Gian Singh v. State of Punjab and Another (2012)10 SCC 303 After analysing the whole gamut of the case-law on the subject, in para 61 of the said judgment, the Hon''ble Supreme Court has summarised the legal position as under: "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 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, 1988 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." (emphasis supplied) 10. The principles laid down in the above decision are reiterated in the later decision rendered in the case of Narinder Singh v. State of Punjab and Others, (2014)6 SCC 466. As to under what circumstances the criminal proceedings in a non-compoundable case could be quashed when there is settlement between the parties, the Court has referred to the guidelines laid down in the case of Gian Singh and has held that if the offence is heinous or serious in nature, then it has to be treated as crime against the society and not against the individual alone. Then it becomes the solemn duty of the State to punish the crime doer. It is held by the Hon''ble Supreme Court: "that even if there is a settlement/compromise between the perpetrator of the crime and the victim, that is of no consequence". 11. In the said case, the Hon''ble Supreme Court has considered whether quashing of proceedings under Section 307 of Indian Penal Code could be held as falling under the category of heinous and serious offence. Analysing the various aspects of the prosecution case, the Hon''ble Supreme Court has held 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. 29.3 Such a power is not to 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 the offences alleged to have been committed under special statute like the Prevention of Corruption Act, 1988 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." 12. Rape, undisputedly, is one of the most depraved act. It is not only an offence against an individual, it is categorised as an offence against the society at large. In the instant case, petitioner 1 is accused of committing forcible rape against the petitioner 2 who was below 18 years of age as on the date of commission of the offence. The allegations made against the petitioner 1 squarely fall within clause Sixthly of Section 376 of Indian Penal Code. Hence, even though there is a settlement between the parties, and the parties are stated to have been married and are living together, the criminal proceedings initiated for the alleged offence cannot be quashed. In view of the ratio laid down in the above decisions of the Hon''ble Supreme Court, the power under Section 482 of Cr. P.C. cannot be exercised in the present set of facts. Hence, the criminal petition is dismissed.