T. Rengarajan and Others vs The State and Others

R. Mala, J.—1. The petition is filed for quashing the charge sheet in C.C. No. 30 of 2008 on the file of the learned Judicial Magistrate, Tirukoilur, Villupuram District against the petitioners herein.

The learned counsel for the petitioners submitted that the defacto complainant/second respondent herein has lodged a complaint and on that basis, a case has been registered in Crime No. 23 of 2008 against the petitioners herein for the offences punishable under Sections 376, 417, 294(b), 323 and 506(ii) IPC. They are nothing to do with the alleged offences and the ingredients of the above offences are not made out. He further submitted that the defacto complainant has given a similar complaint against one Kumar, a Tailor stating that he borrowed money from her and when she demanded the money, he did not repay the same. Subsequently, the matter has been compromised. Now she lodged the complaint against the petitioners, which shows that she is having an habit of giving such false complaint.

Learned counsel for the petitioners further submitted that the ingredients of Sections 376 and 417 IPC are not made out. To substantiate his arguments, he relied upon the judgment of this Court in Crl.R.C. No. 2206 of 2002, dated 08.09.2004. Further, the petitioner has not mentioned the date, on which, she had physical relationship with the first petitioner. Moreover, she entered into a compromise with the petitioners and undertook to withdraw the case, but now she is prosecuting. It is further submitted that the third petitioner was 88 years old at the time of occurrence and she has falsely implicated in this case. In the complaint, it was stated that the petitioners 2 to 4 have assaulted the defacto complainant and made criminal intimidation, which is utter false. Therefore, he prays for quash the proceedings.

Learned Additional Public Prosecutor submits that date of occurrence has been mentioned in 161 Cr.P.C. statements of the defacto complainant. He further submits that ingredients of offences under Sections 376 and 417 IPC are clearly made out. Therefore, he prays for dismissal of the petition.

The defacto complainant/second respondent herein is present before this Court and submits that she is not willing for compromise and she has also not given any undertaking to withdraw the case. Therefore, she prays for dismissal of the petition.

Heard both sides and perused the typed set of papers.

A perusal of the petition prayer reveals that the petition has been filed to call for records relating to C.C. No. 30 of 2008 on the file of the learned Judicial Magistrate, Tirukoilur, Villupuram District against the petitioners and quash the charge sheet. In para- 3 of the typed set of papers itself, it was specifically mentioned that the case has been taken in P.R.C. No. 9 of 2009. As far as the offences under Sections 376 and 417 IPC are concerned, they are only triable by the Sessions Court. Under the said circumstances, I am unable to understand as to how the petitioners have given C.C. No. 30 of 2008 on the file of the learned Judicial Magistrate, Tirukoilur, Villupuram District in the prayer and on the sole ground itself, this petition is liable to be dismissed.

Before that, this Court has to decide the matter on merits. Insofar as the offences under Sections 376 and 417 IPC are concerned, they are question of facts and that can be decided only at the time of trial after letting oral and documentary evidence.

As per the judgment relied upon by the learned counsel for the petitioners in Crl.R.C. No. 2206 of 2002, dated 08.09.2004, a case in S.C. No. 97 of 1997 has been ended in acquittal, against which, the victim preferred the revision and the same was confirmed. It is well settled dictum of the Honourable Apex Court that acquittal need not be set aside, unless there is any strong evidence as against the accused for conviction. In such circumstances, the above judgment is not applicable to the facts of the present case.

According to the learned counsel for the petitioners, the defacto complainant is having an habit of giving false complaint against the persons. It is further submitted that she has also lodged a complaint against one Kumar, a Tailor, to whom she lent money and when she demanded the same, he did not repay and hence, she lodged the complaint. Subsequently, she has withdrawn the said complaint stating that matter has been compromised. But the learned counsel has not filed a single scrap of papers to show that the defacto complainant has given the complaint. So the above argument advanced by the learned counsel for the petitioners is only on air and it does not merit acceptance and hence, it is discarded.

Today, the learned counsel for the petitioners has produced a xerox copy of undertaking letter, dated 03.02.2012 stating that the matter has been compromised. It is pertinent to note that the present petition has been filed in the year 2009. Today, the defacto complainant herself appears before this Court and submits that she has not given any undertaking to withdraw the case. Her submission is recorded. Merely because, the case under Sections 376 and 417 IPC has been compromised, this Court is the last person to quash the proceedings. Because the Honourable Apex Court time and again held that offence under Section 376 IPC is concerned, which is against women, the matter cannot be quashed merely because the matter has been compromised.

As per the decision reported in , 2013 (1) SCC (Cri) 160 (Gian Singh v. State of Punjab and another), in para-58, the Apex Court held that in respect of serious offences like murder, rape, dacoity or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. But whereas it was specifically mentioned that the proceedings in respect of transaction in the civil flavour having arisen out of civil, mercantile, commercial, financial, partnership, can be quashed, if the matter has been settled between both the parties. So it is appropriate to incorporate para-58 of this judgment, which is extracted hereunder:

"58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the 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 wrongdoing that seriously endangers and threatens the well-being of the 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 the permission of the Court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the 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 the victim and the offender and the 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 FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the 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. "

Considering the aforestated facts and circumstances of the case, whether the ingredients of the offences under Sections 376 and 417 IPC are made out, can be decided only at the time of trial. Merely because the matter has been compromised, it is not a fit case for quashing the proceedings against the first petitioner. In respect of the offences under Sections 294(b), 323 and 506(ii) IPC are concerned, it is alleged that the petitioners assaulted the defacto complainant. Whether the ingredients of the said offences are made out, can be decided only at the time of trial. Therefore, this petition is dismissed in this ground also.

In the result, the Criminal Original Petition stands dismissed. According to the learned Additional Public Prosecutor, the case has been taken in P.R.C. No. 9 of 2009 and it is yet to be committed. Hence, the Registry is directed to return the entire records pertaining to this case to the trial Court and on receipt of the same, the learned Judicial Magistrate is directed to commit the case and act in accordance with law. Consequently, connected Miscellaneous Petition is closed.