IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO.3269/2017 BETWEEN 1. JAMEEL JABBAR @ MIRZA, S/O JABBAR MIRZA, AGED ABOUT 23 YEARS, R/AT #11, 4TH MAIN ROAD, 7TH CROSS, 4TH BLOCK, HBR LAYOUT, HENNUR MAIN ROAD, BENGALURU-560 035 ALSO R/AT #36, SMT VINODH’S HOUSE, POLICE RANGAPPA STREET, 5TH CROSS, KUSHALNAGAR, K G HALL ARABIC COLLEGE POST, BENGALURU-560 047 PERMANENTLY R/AT #60/3 MEHER BUILDING, DADY SAIT ROAD, CHAUPATI C PHASE, BAND STAND, NEAR BOMBAY GARAGE, MUBMAI-400 006 2. SMT SABEERA MIRZA, W/O JABBAR MIRZA, AGED ABOUT 23 YEARS, R/AT NO.60/3, MEHER BUILDING, DADY SAIT ROAD, CHAUPATI C PHASE, BAND STAND, NEAR BOMBAY GARAGE, MUBMBAI-400006 3. SABA MIRZA, D/O JABBAR MIRZA, AGED ABOUT 20 YEARS R/AT #60/3,MEHER BUILDING, DADY SAIT ROAD, CHAUPPATI C PHASE, BAND STAND, NEAR BOMBAY GARAGE, MUBMAI-400 006 ... PETITIONERS (BY SRI.MOHAMMED PASHA C., ADV.) AND 1. STATE OF KARNATAKA, THROUGH R T NAGAR POLICE, REP. BY ITS SPP, HIGH COURT OF KARNATAKA, BENGALURU-560 001 2. MEHABOOB PASHA, S/O LATE HYATH SHARIEF, AGED ABOUT 51 YEARS, R/AT 71, 3RD MAIN, KOUSARNAGAR, R. T. NAGAR POST, BENGALURU-560 032 ... RESPONDENTS (BY SRI. SANDESH J. CHOUTA, SPP-II FOR R-1. SRI. MAQBOOL PASHA, ADV. FOR R-2 & E-3) THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN CR.NO.459/2012 AND SPL.C.C.NO.95/2013 FOR AN OFFENCE P/U/S 366(A), 376, 120(B) OF IPC AND SEC. 4 OF POCSO ACT WHICH IS PENDING BEFORE THE LIV ADDL. CITY CIVIL AND S.J., BENGALURU ON THE FILE OF R.T.NAGAR POLICE, BENGALURU.
THIS CRL.P COMING ON FOR ADMISSION A/W IA 1/2017 THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER On the previous date of hearing, that was on 11.12.2017, this court has in fact recorded the compromise between the parties as stated by them before this court and dispensed their presence before the court today.
2. After hearing with regard to the legality and admissibility of the compromise and to consider the same, I have heard the arguments of the learned counsel for the petitioners and the learned Addl. SPP-II for the State. I have carefully perused the records.
3. The brief factual matrix which are important to be noted before arriving at any conclusion in this case are:- The respondent No.1 – R.T. Nagar Police have registered a case against the petitioners on the complaint lodged by the second respondent herein in Crime No.459/2012 for the offence punishable under section 363 of IPC on the allegations that the first petitioner has kidnapped the 3rd respondent, who is none other than the daughter of the second respondent. The police have investigated the matter and have filed a charge sheet for the offence punishable under section 366A, 376 and 120B of IPC and Section 4 of the POCSO Act, and the same has been registered before the Special Court in Spl.CC No.95/2013, which is still pending on the file of LIV Addl. City Civil and Sessions Judge CCH-55, at Bengaluru. The petitioner has called in question the initiation of Criminal case and continuation of the Special case for the above said offences and sought for quashing of the proceedings on the ground that the matter has been compromised between the parties, particularly between the petitioners and the respondent Nos.2 & 3.
4. In this context, before adverting to the compromise entered into between the parties, it is just and necessary to have some rulings of the Hon'ble Apex Court as to under what circumstances, the court can record the compromise between the parties, even in the cases where the offences alleged are serious in nature.
5. In this regard, it is worth to refer a decision of the Hon'ble Apex Court in the case of Gian Singh Vs.
State of Punjab and Another reported in [(2012) 10 SCC 303], wherein, the Apex Court has held thus:-
“Thus, held, heinous and serious offences of mental depravity, murder, rape, dacoity, etc., or under special statutes like Prevention of Corruption Act or offences committed by public servants while working in their capacity as public servants, cannot be quashed even though victim or victim's family and offender have settled the dispute - Such offences are not private in nature and have a serious impact on society.
But criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing – Offences arising from commercial financial, mercantile, civil, partnership or like transactions or offences arising out of matrimony relating to dowry, etc. or family disputes where the wrong is basically private or personal in nature and parties have resolved their entire dispute, High Court may quash criminal proceedings – High Court, in such cases, must consider whether it would be unfair or contrary to interest of justice to continue with the criminal proceeding or continuation of criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between parties and whether to secure ends of justice, it is appropriate the criminal case is put to an end. If such question(s) are answered in the affirmative, High Court shall be well within its jurisdiction to quash the criminal proceedings.”
6. On careful perusal of the above said decision, the Hon'ble Apex Court has not categorized any particular provisions under the IPC or under any law for the time being in force. But the guidelines are that the offences arising out of matrimonial disputes relating to dowry or any family dispute, where the wrong is basically private and personal in nature and when the parties have resolved their entire dispute amongst themselves, the court can quash such proceedings.
7. In another ruling, the Hon'ble Apex Court has considered that offence u/s.307 of IPC though is a heinous offence and have a serious impact on the society. But still, the Hon'ble Apex Court has laid down certain guidelines, where the court can quash the proceedings u/s.307 of IPC, reported in (2014) 6 SCC 466 between Narinder Singh and others vs. State of Punjab and another. Head Note A of the decision reads thus – “Quashment of proceedings on basis of settlement between parties – Offence alleged u/s.307 of IPC – Falls in the category of heinous and serious offences and generally to be treated as crime against society – Power of quashment in such cases – Guidelines laid down – Held, only because FIR/charge-sheet incorporates provisions of S.307 IPC would not, by itself, be a ground to reject the petition u/s.482 of Cr.P.C. and refuse to accept the settlement between the parties – Quashment of proceedings depends on facts and circumstances of each case – Detailed guidelines laid down (in para 29) for High Courts to form a view under what circumstances it should accept the settlement between the parties and quash the proceedings and when it should refrain from doing so.
8. In paragraph 29 of the said decision, the Hon'ble Apex Court has observed thus -
“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.
Xxxxx 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly 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.
29.6. xxxx Whereas in the latter 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.”
9. The court has observed that filing of the charge sheet u/s.307 of IPC would not by itself is a ground to reject the petition u/s.482 of Cr.P.C. Therefore, it all depends upon the facts and circumstances of each case, which has to be taken into consideration by the court in order to ascertain whether permitting the parties to compromise such an offence would have serious impact on the society or not and whether it amounts to any illegality as such or not.
10. In this background, now let me consider the grounds urged before this court for considering the compromise entered into between the parties.
11. The petitioners have urged that the 3rd respondent - complainant herself has stated that she has married to the first petitioner and she was aged more than 17 years as on the date of the incident and there is no whisper with regard to any forcible sexual intercourse with her by the first petitioner. It is submitted before the court that they are also having two children and first petitioner and 3rd respondent are living happily with each other together. The father of the third respondent who is second respondent before this court also submitted that the first petitioner and the 3rd respondent are residing together and they begot two children and happily leading their matrimonial bond. In the above said circumstances, continuation of criminal proceedings against the petitioners before the trial Court would amounts to abuse of process of the court. Further, it is also to be taken note of that even if the said proceedings are allowed to continue, the consequences would be hostility of the 3rd respondent and there may not be any fruitful evidence and the court may not draw any inference against the petitioners. Though this may not be the criteria for the purpose of quashing the proceedings, but the court with other circumstances available on record can also take this circumstance for consideration.
12. It is seen from the records that in view of the above said circumstances, the second respondent has lodged a complaint stating that the 3rd respondent, aged about 15 years as on the date of the incident, left the house at about 8.30 a.m., in the morning and she did not return and it was suspected that the first accused -
petitioner might have taken her somewhere. On the basis of this complaint, the police have investigated the matter. The police have also got recorded the statement of the victim girl before the jurisdictional Magistrate u/s.164 of Cr.P.C.
13. It is worth to note here the statement of the victim girl made before the Magistrate, wherein she has categorically stated that on 15.12.2012, at about 8.30 p.m., while she was standing near the RT Nagar bus stand, the accused/petitioner came there and he called her to go along with him and thereafter, he persuaded her and took her to a resort and stayed there and then, she requested to send her back to her house. Then, he again took her to a lodge at Kalasipalya in Bengaluru, and thereafter, she once again requested to leave her as she wanted to go back to her house, however, they stayed in the lodge on that day and on the next day, the petitioner persuaded her and took her to Mumbai to his house and there, every day she used to ask him to leave her to go to her parents house. In that context, the petitioner assured her that he would marry her and thereafter she told that the petitioner has to contact her father and then she will marry him. But the petitioner did not agree for the same. However, on 21.12.2012, both of them married each other and on 6.1.2013, the petitioner took her to his friend’s house and thereafter, the father and uncle of the victim girl came to that particular area and took her back to their house.
14. It is specifically stated by her that after the marriage both of them have had sexual intercourse with each other. Therefore, it is very clear from the statement of the victim girl that the victim girl and the petitioner married each other and thereafter only they entered into the sexual activity between themselves.
15. The learned counsel for the petitioner also made available the certified copy of the certificate of birth issued by the BMC pertaining to the 3rd respondent Ayesha, which shows that her Date of Birth is 12.10.1996. Therefore, as on the date of the alleged offence i.e., on 15.12.2012, she was aged more than 16 years 9 months. Therefore, she has crossed 16 years. In this context, as rightly contended by the learned counsel that provision of Section 376 of IPC cannot be said to have been attracted.
16. In this regard, it is worth to refer a decision of the Hon’ble Apex Court reported in AIR 2011 SC 2564 between Thimmappa Gowda Vs. State of Karnataka, wherein it has held thus – “S.376 – Rape – Sex with woman about 16 years of age with her consent – Is not rape – Victim herself stated in her evidence that she had sex with accused on several occasions – Shows that she was consenting party – Accused entitled to benefit of doubt – Accused agreed to transfer two acres of land due to breach of promise to marry victim and she has given her consent to accept same – Accused directed to transfer two acres of land within three months from the date of judgment.”
17. Further added to that, the provision of Section 375 of IPC, which is a definition clause, prior to the amendment clearly indicates that if a man is said to commit “rape” would fall under any of the following seven descriptions:
“Firstly – against her will;
Secondly — Without her consent;
Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt;
Fourthly — With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;
Sixthly — With or without her consent, when she is under sixteen years of age;
Seventhly – When she is unable to communicate consent.
Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The definition of this section, as noted section is prior to the amendment. But subsequently, the age of the girl is increased to 18 years.
18. The prosecution has also invoked the provisions of the Protection of Children from Sexual Offences Act, 2012 [for short “POCSO Act”]. Admittedly, when the offence alleged to have been committed i.e., on 15.12.2012, POCSO Act, was not in existence. POCSO Act, came into force from 3.2.2013 by Act 32 of 2012 which received the assent of the President on 19.6.2012 and published in Gazette of India extraordinary Part II Section 2, No.34 dated 20.06.2012, which came into force on 14.11.2012. Therefore, the said Act was not in existence, when the alleged offence has committed by the first petitioner. Therefore, invocation of the said provision itself is not proper. Perhaps, the police have filed the charge sheet subsequently. Therefore, at the time of filing of the charge sheet, they might have wrongly incorporated the provisions of POCSO Act, 2012.
19. Even the provision of Section 366A of IPC if it is taken note of, the same is also not attracted because in order to attract Section 366A of IPC which defines that, “Procuration of minor girl – Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.”
20. Therefore, the said provision is also not attracted. When these two provisions do not attract, attracting of Section 4 of the POCSO Act, and Section 120B of IPC does not arise. Therefore, when the allegations made in the charge sheet if it is read in consonance with Section 375 of IPC and the definition clause of Section 366A of IPC that the allegations does not constitute the offences. Even assuming that those offences are broadly attracted, there is no question of rejecting the application for compromise filed by the parties, under the above said circumstances. I am of the considered opinion that the compromise entered into between the parties requires to be accepted and all the proceedings in Spl.CC No.95/2013 deserves to be quashed.
21. The facts and circumstances of this case clearly discloses that the parties have amicably settled the matter and particularly, petitioner No.1 and respondent No.3 are married and they begot children and they are happily living together and for any reason if the criminal proceedings are allowed to continue, that will cause great hardship and inconvenience. Therefore, the proceedings requires to be quashed. Accordingly, I proceed to pass the following:
ORDER The Petition is allowed. Consequently, all further proceedings in Spl.CC No.95/2013 arising out of Crime No.459/2012, which culminated into CC No.7175/2013 for the offence punishable under sections 366(A), 376, 120B of IPC and Section 4 of POCSO Act, pending on the file of LIV Addl. City Civil and Sessions Judge, Bengaluru, are hereby quashed.
Sd/-
JUDGE PL*