Full Text
HIGH COURT OF DELHI
MR. AMIT KUMAR ..... Petitioner
Through: Mr. Amresh Kumar, Advocate with petitioner in person.
V
THE STATE & ANR. ..... Respondents
Through: Mr. Hitesh Vali, APP with Ms. Akanksha Sharma, Advocate for State/R-1 alongwith SI Ajay Sharma, P.S. Kalyanpuri.
JUDGMENT
1. The present petition is filed under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), for quashing of FIR bearing no. 0361/2018 registered at P.S. Kalyanpuri, Delhi registered under sections 376/313 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) and under section 6 Protection of Children from Sexual Offences Act, 2012 (hereinafter CRL.M.C. 3881/2019 MR.
2. The perusal of FIR bearing no.0361/2018 dated 19.07.2018 reflects that it was got registered on basis of the complaint made by the respondent no.2 pertaining to allegations as stated in FIR i.e. the petitioner had established sexual relations with her and caused abortion when the respondent no 2 got pregnant. The charge-sheet was filed after conclusion of investigation and the trial is stated to be pending in the court of Sh. Ravinder Singh, Additional Sessions Judge, Special Court (FTC), North-East, New Delhi.
3. It is stated in the petition that the petitioner and the respondent no.2 has solemnized their marriage in Arya Samaj Mandir, Yamuna Bazaar, Delhi -110006 on 10.05.2019 and are leading happy married life. The counsel for the petitioner after referring contents as mentioned in the petition argued that the present FIR bearing NO. 0361/2018 alongwith consequential proceedings be quashed. The respondent no.2 also stated that the petitioner no 1 had established physical relations with her consent and she had already got married with the petitioner no.1 out of her free will and at present she is leading happy married life with the petitioner no.1. The respondent CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 3 no.2 also stated that she does not have any objection if the present petition is allowed and the FIR bearing no. 0361/2018 alongwith consequential proceedings is quashed.
4. The Additional Public Prosecutor for the respondent No.1/State stated that the respondent no.2 was minor at the time of alleged incident and the offences for which the charge sheet has filed against the petitioner are non-compoundable and as such the present petition cannot be allowed.
5. Section 320 of the Code deals with compounding of offences. As per sub section (1) certain specified offences can be compounded without leave/permission of the court and as per sub section (2) certain specified offences can be compounded with leave/permission of the court. Section 482 saves the inherent power of the High Court and reads as follows:- Section. 482. Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
6. The Supreme Court in various decisions considered issues whetherHigh Court in exercise of its inherent powers under section CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 4 482 of the Code can quash criminal proceedings/ FIR/ complaint and section 320 of the Code does not limit or affect the powers under section 482of the Code. The Supreme Court in Dharampal and others V Ramshri (Smt.) and others, 1993 Cri.L.J. 1049 observed that the inherent powers under section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. The Supreme Court in Arun Shankar Shukla V State of Uttar Pradesh and others, AIR 1999 SC 2554 held as under:-...It is true that Under Section 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 powers 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-neigh 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 provision of the Code. In the present case, the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence. The High Court has intervened at an uncalled for stage and soft-pedalled the course of justice CRL.M.C. 3881/2019 MR.
7. The Supreme Court continuously observed that the extraordinary power Under Section 482 Code of Criminal Procedure should be exercised sparingly and with great care and caution and can be used to prevent abuse of the process of the court or to secure ends of justice and the exercise of inherent powers entirely depends on facts and circumstances of each case.
8. The Supreme Court in B.S. Joshi V State of Haryana (2003) 4 SCC 675 held that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and section 320 of the Code does not limit or affect the powers under section 482 of the Code. The Supreme Court in Manoj Sharma V State & others, (2008) 16 SCC 1 considered issue whether a FIR under sections 420/468/471/34/120-B IPC can be quashed either under section 482 of the Code or under Article 226 of the Constitution when the accused and the complainant have compromised and settled the matter between themselves. The Supreme Court observed that ultimate exercise of discretion under section 482 of the Code or under Article 226 of the Constitution is with the court which has to exercise CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 6 such jurisdiction in the facts of each case. It has been explained that the said power is in no way limited by the provisions of Section 320 of the Code. It was observed as under:-
8. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the first information report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. 9....In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility....
9. The Supreme Court in Sushil Suri V Central Bureau of Investigation and another,(2011) 5 SCC 708, considered the scope and ambit of the inherent jurisdiction of the High Court and observed as under:-
16. Section 482 Code of Criminal Procedure itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely, (i) to give effect to an order under Code of Criminal Procedure; (ii) to prevent an abuse of the process of court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. CRL.M.C. 3881/2019 MR.
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10. The power of compounding and quashing of criminal proceedings in exercise of inherent powers are not equalor interchangeable in law.The Supreme Court in various decisions also considered scope of section 320vis-à-vis the inherent power of the High Court under section 482 of the Code. The Supreme Court in Shiji alias Pappu and others V Radhika and another, (2011) 10 SCC 705 considered the exercise of inherent power by the High Court under section 482 in a matter where the offence was not compoundable and observed that simply because an offence is not compoundable under section 320 Code of Criminal Procedure is by itself no reason for the High Court to refuse exercise of its power under section 482 Code of Criminal Procedure. It was further observed that there is a subtle distinction between compounding of offences by the parties before the trial court or in appeal and the exercise of power by the High Court to quash the prosecution Under Section 482 Code of Criminal Procedure. The Supreme Court in Y. Suresh Babu V State of A.P., (2005) 1 SCC 347 allowed the compounding of an offence under section 326 IPC even though such compounding was not permitted by section 320 of the Code. CRL.M.C. 3881/2019 MR.
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11. The Supreme Court in Gian Singh V State of Punjab and others, (2012)10SC C 303 laid down following principles:-
57. 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 F.I.R may be exercised where the offender and 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act 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. But the criminal cases having overwhelmingly and predominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 9 parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.
12. The Supreme Court in State of Madhya Pradesh V Laxmi Narayan & others, 2 (2019) 5 SCC 688 recapitulated principles laid down in Gian Singh case and observed as under:- (1) That the power conferred under Section 482 of the Code to quash the criminal proceedings for the noncompoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; (2) Such power is not to be exercised in those prosecutions which involved 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; (3) Similarly, such power is not to be exercised for the CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 10 offences under the special statutes 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; (4) xxx xxx xxx (5) While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc.
13. The Supreme Court in Ramgopal & another V State of Madhya Pradesh, Criminal Appeal No. 1489 of 2012 decided 29th September,2021 observed as under:-
11. True it is that offences which are „noncompoundable‟ cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C, which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C., which may justify its wider interpretation and include such offences in the docket of „compoundable‟ offences which have been consciously kept out as non-compoundable. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C. The High CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 11 Court, keeping in view the peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 Cr.P.C. in aid to prevent abuse of the process of any Court and/or to secure the ends of justice.
12. The High Court, therefore, having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non- compoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system.
13. It appears to us that criminal proceedings involving non-heinous offences or where the offences are pre-dominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions. It goes without saying, that the cases where compromise is struck post- conviction, the High Court ought to exercise such discretion with rectitude, keeping in view the circumstances surrounding the incident, the fashion in which the compromise has been arrived at, and with due regard to the nature and seriousness of the offence, besides the conduct of the accused, before and after the incidence. The touchstone for exercising the extra-ordinary power under Section 482 Cr.P.C. would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may rather lead to grave injustice. CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 12 On the other hand, in cases where heinous offences have been proved against perpetrators, no such benefit ought to be extended, as cautiously observed by this Court in Narinder Singh & Ors. vs. State of Punjab & Ors. 3 (2014) 6 SCC 466 and Laxmi Narayan (Supra).
14. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community but may also accord an undue benefit to unscrupulous habitual or professional offenders, who can secure a „settlement‟ through duress, threats, social boycotts, bribes or other dubious means. It is well said that “let no guilty man escape, if it can be avoided.”
14. The Supreme Court in Daxaben V The State of Gujrat & others, SLP Criminal No.1132-1155 of 2022 decided on 29.07.2022 also observed as under:-
38. However, before exercising its power under Section 482 of the Cr.P.C. to quash an FIR, criminal complaint and/or criminal proceedings, the High Court, as observed above, has to be circumspect and have due regard to the nature and gravity of the offence. Heinous or serious crimes, which are not private in nature and have a serious impact on society cannot be quashed on the basis of a compromise between the offender and the complainant and/or the victim. Crimes like murder, rape, burglary, dacoity even abetment to commit suicide are neither private nor civil in nature. Such crimes are against the society. In no circumstances can prosecution be quashed on compromise, when the offence is serious and grave and falls within the ambit of crime against society. CRL.M.C. 3881/2019 MR.
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15. The Co-ordinate Bench of this court in Mohd. Sufiyan & others V. State of NCT of Delhi & another, W.P. (CRL.)2568/2021 decided on 11.05.2021has declined to quash offence punishable under section 376 IPC despite statement given by the wife to the effect that she lodged FIR in anger and out of vengeance without paying due attention as to the consequences of FIR and settlement between the concerned parties and the reliance was placed on State of Madhya Pradesh V. Madan Lal, (2015)7SCC681. In Pawan Gaur V State (NCT of Delhi), Crl. M.C. 981/2021 decided on 26.03.2021 another Coordinate Bench of this court declined to quash FIR pertaining to offence punishable under section 376 IPC despite compromise between the parties.
16. In Kundan & another V State & others, Crl.M.C. 27/2022 dated 21.02.2022, Coordinate Bench of this Court has quashed FIR pertaining to offences punishable under section 363/366/376 IPC and section 6 of the Prevention of Children from Sexual Offences Act, 2012 on the ground that the victim/prosecutrix and the accused got married and the victim/prosecutrix delivered a baby boy. The victim/prosecutrix in statement under 164 of the Code also stated that CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 14 she was in love with the accused and due to opposition of marriage by her parents, she decided to go with the accused. This Court in Jaimeet Singh Kalra & others V. State & another, Crl.M.C. 1474/2019 decided on 02.06.2022 also quashed FIR under sections 328/498A/406/376/377/506/34 as registration of FIR originated from matrimonial dispute.This court again in Sunny Kumar @ Mukesh Kumar & others V The State & another, Crl.M.C.3561/2022 decided on 02.08.2022 has quashed FIR pertaining to offences punishable under section 363/366/376 IPC and section 4 of Protection of Children from Sexual Offences Act, 2012 and section 9 of Prohibition of Child Marriage Act, 2006 as the victim/prosecutrix and the accused got married and they have been blessed with two children and undertook to build the future life of their children by mutual love, affection and understanding.
17. The inherent powers under section 482 of the Code can be used to prevent abuse of process of law and to secure the ends of justice.The Supreme Court in Gian Singh as referred hereinabove laid down that inherent power under section 482 of the Code is required to be exercised to secure the ends of justice or to prevent CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 15 abuse of the process of any court and power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and victim have settled their dispute depending on the facts and circumstances of each case. However the Supreme Court cautioned that for exercise of inherent power due regard must be given to the nature and gravity of the crime and observed that heinous and serious offences such as murder, rape, decoity, etc. cannot be quashed even despite settlement of disputes between the victim and the offender as these offences are not private in nature and have serious impact on society. It was further observed that that the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for quashing including offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes as these disputes are private or personal in nature and the parties have resolved entire dispute. The High Court may also quash criminal proceedings where possibility of conviction is remote and bleak and continuation of criminal case is causing great oppression and prejudice to the accused and extreme injustice would CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 16 be caused to him and to put an end to criminal case would be appropriate. The Supreme Court in State of Madhya Pradesh V Laxmi Narayan & others, Criminal Appeal No 349/2019 decided on 05.03.2019 besides reiterating principles laid down in Gian Singh case observed that while exercising the power under section 482 of the Code to quash the criminal proceedings in respect of noncompoundable offences, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc. The Supreme Court in Ramgopal & another V State of Madhya Pradesh observed that the High Court after considering peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 of the Code in aid to prevent abuse of the process of any Court and/or to secure the ends of justice. It was further observed that the High Court can quash non compoundable offences after considering nature of the offence and amicable settlement between the concerned parties. The High Court can evaluate the consequential effects of the offence and need to CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 17 adopt a pragmatic approach to ensure that quashing is not paralyze the very object of the administration of criminal justice system. It was further observed that a restrictive construction of inherent powers under Section 482 of the Code may lead to rigid or specious justice which may lead to grave injustice.
18. The Gian Singh in broad perspective prohibits quashing of FIR pertaining to rape. As per contents as mentioned in FIR, the petitioner and the respondent no.2 were having acquaintance for each other. The respondent no 2 also developed friendship and intimacy for the petitioner. The petitioner and the respondent no.2 got married with each other on 10.05.2019. The petitioner and the respondent no.2 are leading happy married life with love, affection and mutual understanding and without any matrimonial discord and trouble between them. The petitioner and the respondent no 2 have already moved in their matrimonial life with deep bonding.
19. The Supreme Court in Dr. Monica Kumar & another V State of Uttar Pradesh & others, (2008) 8SCC781 held that the inherent power under section of the Code should not be exercised to stifle a legitimate prosecution. However in trial arising out of present FIR, CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 18 there is remote and bleak possibility of conviction of the petitioner under given facts and circumstances of case and continuance of legal proceedings arising out of FIR bearing no 0361/2018 shall cause great oppression and prejudice to the petitioner and the respondent no 2 as they shall be subjected to extreme injustice and as such to put an end to legal proceedings arising out of FIR bearing no 0361/2018 would be appropriate and be in the interest of society.The Supreme Court in Shiji alias Pappu and others V Radhika and another, AIR 2012SC499 held as under:- …plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law.
20. The Supreme Court in The State of Maharashtra V Maroti, Criminal Appeal No.1874 of 2022decided on 02.11.2022 observed that if FIR and the materials collected disclose a cognizable offence and the final report filed under Section 173(2), Cr.P.C. on completion of investigation based on it would reveal that the ingredients to constitute an offence under the POCSO Act and a prima facie case CRL.M.C. 3881/2019 MR.
AMIT KUMAR V STATE & ANR Page 19 against the persons named therein as accused, the truthfulness, sufficiency or admissibility of the evidence are not matters falling within the purview of exercise of power under Section 482 Cr.P.C. and undoubtedly they are matters to be done by the Trial Court at the time of trial. However in said case FIR came to be registered against unidentified persons on the accusation of commission of sexual offences against minor tribal girls who were students and were residing in its girls’ hostel. It was found that 17 minor girls were abused by the accused. In present case, the petitioner and the respondent no 2 were known to each other and developed intimacy for each other. The allegations pertaining to cause abortion are without any specification in material particulars. The antecedents of the petitioner is clear and never been indulged in criminal activities.
21. As observed in Ramgopal & another V State of Madhya Pradesh the High Court need to adopt a pragmatic approach to ensure that quashing is not paralyze the very object of the administration of criminal justice system and a restrictive construction of inherent powers under Section 482 of the Code may lead to rigid or specious justice which may lead to grave injustice. CRL.M.C. 3881/2019 MR.
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22. After considering all facts and totality of the circumstances, the present petition is allowed and FIR bearing no. 0361/2018 registered at P.S. Kalyanpuri, Delhi is quashed along with all consequential proceedings including judicial proceedings stated to be pending in court of Sh. Ravinder Singh, Additional Sessions Judge, Special Court (FTC), North-East, New Delhi.
23. The present petition along with pending applications, if any, stands disposed of.
SUDHIR KUMAR JAIN (JUDGE) NOVEMBER 25, 2022 KG/N