Court No. - 65
Case :- APPLICATION U/S 482 No. - 32435 of 2019 Applicant :- Nitin Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mohd. Akbar Shah Alam Khan Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Mohd. Akbar Shah Alam Khan, learned counsel for the applicant, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge-sheet No. 620 of 2017 dated 23.10.2017 as well as entire criminal proceedings of S.T. No. 347 of 2019 (State vs. Sunil Kumar and others) arising out of Case Crime No. 921 of 2017, under section 376-D, 506, 363, 34 IPC and 5/6 POCSO Act, P.S. Kairana, District Shamli pending in the court of Additional District Judge First, Shamli and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is argued by the learned counsel for the applicant that the accused applicant has been falsely implicated by the opposite party no.2. There are various discrepancies in the statement of the victim, her father/opposite party no. 2 and the FIR version. In FIR it has been stated that the accused- applicant along with other two co-accused namely Sunil Kumar and Rohit had met his daughter/victim and gave narcotic drug to the wife of opposite party no. 2 and thereafter the victim was lifted away from her house to the house of accused Sunil Kumar where she was gang raped and she was thrown out in unconscious condition in front of the house of opposite party no.2 at about 3.00 A.M. The occurrence is stated to have taken place on 17.8.2017 at 11.00 P.M. and it is further mentioned that a threat was given to the victim that her dirty video was also prepared and if she would take any action against the applicant and co-accused, the same would be made viral. Further, attention was also drawn to the statement of the victim recorded under section 161 Cr.P.C. which is at page 23 of the paper book in which it was stated by him that all the three accused including the applicant had told the victim that she should give drug in the milk to her mother and when she would turn unconscious, her birth day would be celebrated and if she would not do so, her mother would be killed. Attention is also drawn to the statement of victim recorded under section 161 Cr.P.C. in which she has stated that rape was committed by accused Sunil while the other co-accused including the applicant made dirty video clipping and had threatened her that the same would be placed on website. The attention is also drawn to the statement of the victim also recorded under section 164 Cr.P.C. in which she has also stated that the accused Sunil Kumar, Nitin and Rohit had taken her from her house to the house of Sunil Kumar where they had given her cold drink and Sunil had committed rape and she does not know whether the other co-accused had committed the rape or not. Sunil Kumar had made indecent video. Further it is argued that the opposite party no. 2 had given an application to SHO P.S. Kairana which is at page 55 of the paper book stating therein that some hot talk had taken place between the opposite party no. 2 and the resident of his locality Sunil Kumar co-accused but some responsible citizen of the Mohalla had got comprise effected and now he does not want to take any legal action. Citing the above piece of evidence, it is argued that the present charge sheet needs to be quashed as there is nothing but it is a malicious prosecution because there are various discrepancies in the statement of the witnesses cited above as well as due to compromise.
Learned A.G.A. has vehemently opposed the prayer for quashing the charge-sheet and has stated that in proceedings u/s 482 Cr.P.C. discrepancies inn the statement cannot been looked into. As per FIR, the allegation has been made against the three accused having committed rape on the victim/daughter of the opposite party no. 2 and attention was drawn to the law laid-down in Gian Singh's case wherein it is held that no such compromise can be permitted in serious offences like rape.
As regards compromise for offence under section 376 IPC, law laid-down by Supreme Court in Gian Singh vs. State of Punjab and another, 2012(10) SCC 303 specifically bars any compromise even if the parties have settled the matter which is quoted herein below.
"61. 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 pre- dominatingly civil flavour 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 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."
I have gone through the FIR. It is mentioned in it that on 17.8.2017 at 11.00 p.m. the opposite party no. 2 had gone out of home and his wife and daughter were sleeping. The accused Sunil Kumar, Nitin Kumar (Applicant) and Rohit came to his house and at the pistol point narcotic drug was given to the wife of the opposite party no. 2 and thereafter the victim/daughter of opposite party no. 2 was lifted away to the house of co- accused Sunil Kumar where gang rape was committed and in unconscious condition she was thrown out of the house of opposite party no.2 at about 3.00 A.M. The victim was also threatened that her dirty video clipping had been made which would be placed on the net in case she would reveal anything about this occurrence. The Investigating Officer after having investigated the case, has submitted charge-sheet after recording statement of as many as nine witnesses. The veracity of the said witnesses cannot be tested in proceedings u/s 482 Cr.P.C.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R.
P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings of the aforesaid case is refused.
However, the applicant may approach the trial court to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with law. The committal court shall commit the case within 30 days subject to compliance of provision of section 209 Cr.P.C. to facilitate the trial court to hear and dispose of discharge application.
The applicant may appear before committal court within 30 days to get his case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 30 days from the date of order, no coercive action shall be taken. But if the accused does not appear before the Committal court, the said court shall take coercive steps to procure his attendance.
With aforesaid direction, this application is finally disposed of.
Order Date :- 26.8.2019 AU