Crl.M.C.No. 2279/2014: The petitioner herein is the accused in Crime No. 752/2012 of Kannamali Police Station, alleging offences punishable under Sec.
376 of the IPC. The prosecution allegation is that the petitioner having given promise of marriage to the defacto complainant, on 13.9.2012 committed rape on her at her house and thereby committed the above said offence. The petitioner avers that he has not committed the above said offence as alleged by the prosecution. Based on the complaint of the defacto complainant (2nd respondent) the Sub Inspector of Police, Kannamali, registered Crime No. 752/2012 of Kannamali Police Station, for offence punishable under Sec. 376 of IPC, against the petitioner. After investigation, the Police filed the impugned Annexure-I final report/charge sheet in the above said crime, which has led to the institution of C.P.No. 6/2013 on the file of the Judicial First Class Magistrate's Court-I, Kochi. It is stated that the petitioner/accused approached the 2nd respondent and her family and settled the matter and that on 29.5.2013 the marriage of the 2nd respondent (defacto complainant) was solemnized and that the 2nd respondent is now peacefully living with her husband and that in these circumstances, there is no need for her to proceed with the prosecution any further and that no purpose will be served by continuing the trial against the petitioner/accused. The 2nd respondent (defacto complainant) has sworn to affidavit dated 16.4.2014 produced as Annexure-II in this Criminal Miscellaneous Case stating the above said aspects and that the matter has been settled and the dispute is purely personal in nature and that her marriage was solemnized in the year 2013 and she is living peacefully with her husband and that since the disputes have been settled between the parties, there is no need to proceed with the prosecution further and that she does not wish to proceed with the impugned criminal proceedings that arose out of Crime No. 752/2012 of Kannamali Police Station and C.P.No.6/2013 on the file of the Judicial First Class Magistrate's Court-I, Kochi, etc. It is in the light of these factual aspects that the petitioner has filed this Criminal Miscellaneous case with the above said prayer.
Crl.M.C.No. 5926/2014:
The petitioner herein is the sole accused in Crime No. 691/2011 of Medical College Police Station, Kozhikode. The above said crime was registered on 26.10.2011 on the allegation that on 8.5.2014 between 9 a.m. and 10 a.m. the petitioner had taken the defacto complainant (2nd respondent) near from CIRHS School, Mathara into his car and raped her at a desolate place between Thondayadu and Palazhy and the same is recorded in his mobile phone, etc. Annexure-A1 is the copy of the FIR in Crime No. 691/2011 of Medical College Police Station, Kozhikode alleging offence under Sec.376/377 of IPC read with Sec.66(E) of the Information Technology Act, 2000. It is stated that now the matter between the defacto complainant (2nd respondent) and the petitioner has been settled and that the defacto complainant does not wish to proceed any further with the impugned criminal proceedings in relation to Annexure-A1 crime and that she has no objection in the quashing of the impugned Annexure-A1 FIR, etc. The 2nd respondent (defacto complainant) has sworn to affidavit dated 12.10.2014, which has been filed in this Crl.M.C. In the said affidavit it is stated by the defacto complainant that the disputes between the 2nd respondent and the petitioner have been settled amicably and that she is no longer interested to proceed with the impugned criminal proceedings in respect of Annexure-A1 FIR and that the disputes between the petitioner and the 2nd respondent are purely personal in nature and no public interest is involved and that she has no objection in allowing this Criminal Miscellaneous Case by quashing the impugned Annexure-A1 FIR, etc. It is in the above facts and circumstances that the petitioner has filed above Crl.M.C. Crl.M.C.No.5711/2014:
The three petitioners herein are accused Nos.1 to 3 in Crime No. 675/2011 of Parippally Police Station, Kollam district. The Police after investigation submitted the impugned Annexure-1 final report/charge sheet in the above said crime, which has led to the institution of S.C.No. 304/2014 on the file of the Principal Assistant Sessions Court, Kollam. The offences alleged therein are under Secs. 109, 120 (b), 376 read with Sec. 34 of the IPC. It is submitted that now there is a settlement between the petitioners and the 2nd respondent (defacto complainant) and she is not interested to prosecute the matter further. The 2nd respondent (defacto complainant) has sworn to affidavit dated 22.9.2014 produced as Annexure-II in this Crl.M.C. In the affidavit it is stated by the 2nd respondent that the allegations in the impugned crime are false and frivolous and that there is no iota of truth in this and she has no complaint against the accused in the above Criminal proceedings and that she is now married and leading a peaceful life with her husband and children and that any further proceedings in the above case would be futile and that it would be seriously affect her reputation and peaceful life, etc. It is further contended by the petitioners that it is clear from Annexure-A1 final report itself that the allegations made therein against the petitioners (accused) are totally false. It is in the background of these facts and circumstances that the petitioners have filed the present Crl.M.C. Crl.M.C.No. 4715/2013:
The petitioner is implicated as the accused in Crime No.
261/2007 of Chakkarakkal Police Station, Kannur district. The above said crime was registered on the basis of a complaint dated 8.12.2007 of the 2nd respondent (defacto complainant) before the said Police authorities alleging that the petitioner had committed rape on the 2nd respondent on 26.11.2007 at her residence and had subsequently taken from there to Safa Lodge, Kannur and raped her many times till 7.12.2007 and thereby committed the above offence. Annexure-I is the copy of the FIR along with the first information statement in Crime No.261/2007 of Chakkarakkal Police Station. The Police after investigation has filed the impugned Annexure-II final report/charge sheet in the above said impugned Annexure-1 crime alleging offence under Sec.376 of IPC. It is stated that now the disputes have been settled between the petitioner and the 2nd respondent and that the 2nd respondent does not wish to pursue the impugned criminal proceedings any further. The 2nd respondent has sworn to affidavit dated 14.8.2014 produced as Annexure-III in this Crl.M.C. stating about the above said settlement and praying that the impugned criminal proceedings may be terminated accordingly. It is in the background of these facts and circumstances, that the instant Crl.M.C. has been filed.
Crl.M.C.No. 5317/2014:
The petitioner herein is the defacto complainant in Crime No. 1004/2011 of Oachira Police Station, in which, respondents 2 and 3 are accused Nos.1 and 2, for offences alleged under Secs. 366(A) and 376 of the IPC. The prosecution case is that during May, 2011, A-1 (2nd respondent) had promised the defacto complainant, who was then a minor aged 16, to marry her and induced to have sexual intercourse with him at his residence and also in a Maruthi Omini Van and that A-2 (the 3rd respondent), who is a friend of A-1, had assisted to commit the above said offences. The Police after investigation submitted impugned Annexure-1 final report/charge sheet in the above said Crime No. 1004/2011 of Oachira Police Station, which has led to the institution of the Sessions Case S.C.No. 435/2012 on the file of the Sessions Court, Kollam. It is submitted that A-1 was the petitioner's neighbour and A-2 is the friend of A-1 and that there was a love affair between the petitioner and A-1 and that her relatives had interfered against this and that the petitioner was compelled to lodge the complaint. It is averred by the petitioner that the matter has now been settled between the parties and that the petitioner's marriage is fixed with another person and that the pendency of the above case will affect her married life. The petitioner and her parents have no surviving grievance against the accused and she does not want to proceed with the impugned criminal proceedings. The petitioner has filed affidavit dated 15.9.2014, produced as Annexure-2 in this Crl.M.C., stating the above aspects stating therein that the impugned final report/charge sheet against the accused in this case are not true and that at the time of giving her statement before the Police, the petitioner was a minor girl and due to interference of her relatives, she was constrained to lodge such a first information statement, which led to the registration of the instant crime and that all the matters are now settled between the parties and she has no complaints or grievances against the accused persons and that her marriage is decided to be solemnized with another person and that the continuance of the impugned criminal proceedings would affect her future marriage life, etc. It is accordingly prayed in the said affidavit that the entire proceedings pending in S.C.No. 435/2012 on the file of the Sessions Court, Kollam, may be quashed considering the necessity in that regard for her future welfare or otherwise it will cause irreparable injury and hardship to her future family life. The father of the petitioner has also sworn to affidavit dated 15.9.2014 produced as Annexure-3 in this Crl.M.C. stating the above aspects and that they have no further complaints or grievances against the accused and that the petitioner's marriage has been decided to be solemnized with another person and that the pendency of the impugned criminal proceedings would adversely affect her future married life and that they have no intention to proceed with the impugned criminal proceedings. Accordingly, it is prayed that this Court may quash the entire proceedings in S.C.No. 435/2012 on the file of the Sessions Court, Kollam and that this is an immediate need for his daughter's future welfare or otherwise it will cause irreparable injury to her future married life, etc. It is in the background of these facts and circumstances that the petitioner has filed the instant Crl.M.C. with the above said prayer.
2. Heard Sri.Ramakumar, learned Senior Counsel, instructed by Sri.S.M.Prasanth, learned counsel appearing for the petitioner and Smt.Resmi Thomas appearing for the 2nd respondent in Crl.M.C.No. 2279/2014; Sri.Abu Mathew, learned counsel appearing for the petitioner and Sri.Vinu Chand, learned counsel appearing for the 2nd respondent in Crl.M.C.No.5926/2014; Sri.B.Krishna Mani, learned counsel appearing for the petitioners and Sri.C.R.Sivakumar, learned counsel appearing for the 2nd respondent in Crl.M.C.No.5711/2014; Sri.M.R.Venugopal, learned counsel appearing for the petitioner and Smt.T.Sudhamani, learned counsel appearing for the 2nd respondent in Crl.M.C.No. 4715/2014 and Sri.G.Ajaya Kumar, learned counsel appearing for the petitioner and Sri.M.R.Sarin, learned counsel appearing for respondent Nos.2 and 3 in Crl.M.C.No.5317/2014 and Sri.T.Asaf Ali, learned State Public Prosecutor and the D.G. of Prosecutions appearing for the official respondents in these cases.
3. The learned counsel for the respondents, during the course of the submissions, relied on paragraph 61 of the decision of the Apex Court in Gian Singh v. State of Punjab and Anr. reported in (2013) 1 SCC (Cri.) 160 = (2012) 10 SCC 303, wherein it was held that the criminal cases having overwhelmingly and predominantly civil flavour stand on a different footing for the purpose 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 etc. The Apex Court in aforementioned Gian Singh's case cited supra, after surveying many rulings of the Apex Court on the point, has categorically held that the inherent power of the High Court under Sec.482 of the Cr.P.C. is of wide plenitude with no statutory limitation and is to be exercised (i) to secure the ends of justice, or (ii) to prevent the abuse of the process of any court (iii) to do real, complete and substantial justice. In Inder Mohan Goswasmi v. State of Uttaranchal reported in (2007) 12 SCC 1, the Apex Court has held that every High Court has the inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which the court exists or to prevent abuse of process of the court and it is contended by the learned counsel for the petitioners that the principles laid down by the Apex Court in those decisions would squarely apply in the facts of the present case.
4. The learned Advocates appearing for the contesting respondents have also made submissions in tune with the averments in the respective affidavits filed by their parties concerned in these cases.
5. It has been now well settled in the case Gian Singh v. State of Punjab and Anr. reported in (2013) 1 SCC (Cri.) 160 = (2012) 10 SCC 303 that the inherent power vested with this Court under Sec.482 of the Cr.P.C. is of wide plenitude with no statutory limitation, but it has to be exercised in accordance with the guideline engrafted in such power viz., (i) to secure the ends of justice, or (ii) to prevent the abuse of the process of any court, etc.
That 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 option, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties put to an end and peace is restored and placing the ends of justice as the ultimate guiding factor. It has been held therein in paras 55 and 56 that in the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent the continuation of unnecessary judicial proceedings. That whenever anything is authorised and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless somethingelse not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment and that ex debito justitiae is inbuilt in such exercise of power, the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Sec. 482 of the Cr.P.C. is of wide amplitude but requires exercise with great caution and circumspection. It needs no emphasis that exercise of the inherent power by the High Court would entirely depend on the facts and circumstances of each case and it is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Sec. 482 and no precise and inflexible guidelines can also be provided. However, it has been very explicitly laid down by the Apex Court in para 61 of the Gian Singh's case supra that before exercise of such power under Sec.482 of the Cr.P.C., the High Court must have due regard to the nature and gravity of the crime. That 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 the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc. cannot provide for any basis for quashing the impugned criminal proceedings involving such offences, etc.
6. The learned State Prosecutor appearing for the official respondents in this case has also relied on the decision of the Apex Court in the case Shimbhu and Anr v. State of Haryana reported in 2013 KHC 4673 = 2013 (10) SCALE 595. In that case, the appellants (accused) therein had allegedly abducted the victim at knife point, confined her in their shop for two days and raped her taking turn. Later, she got married and she has four children. The trial court convicted them and sentenced them 10 years rigorous imprisonment. During pendency of appeal, the parties (accused and the victim) compromised and the Apex Court in the aforementioned decision in Shimbhu's case cited supra held that the compromise is not a reason to reduce the sentence. The Apex Court held that a compromise entered between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded and that rape is a non-compoundable offence and it is an offence against the society and not a matter to be left for the parties to compromise and settle. Since the court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise and that accepting this proposition will put an additional burden on the victim as the accused may use all his influence to pressurise her for a compromise and that in the interest of justice and to avoid unnecessary pressure or harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise discretionary power under the proviso of Sec.376(2) of IPC, etc. The learned counsel appearing for the petitioners has argued that the above said decision in Shimbhu's case cited supra is distinguishable, by contending that the said case did not involve an issue of quashment under Sec.482 of the Cr.P.C., but was a case wherein the accused were convicted of the offence of Sec. 376 IPC for rape and that the compromise was highlighted at the time of the imposition of sentence as a plea for reduction thereof and that the said decision is clearly distinguishable on those facts.
7. The learned counsel for the petitioners has also relied on the decision of the Supreme Court in Yogendra Yadav & ors. v. State of Jharkhand & Anr. reported in 2014 (8) SCALE 634, wherein the Supreme Court has allowed the plea of quashment in a case involving offences under Secs. 307 (attempt to murder), 324, 323, 341, 504 read with Sec. 34 of the IPC. The learned Public Prosecutor has relied on the decision of the Apex Court in Narinder Singh v. State of Punjab reported in (2014) 6 SCC 466, para 29. In Narinder Singh's case cited supra the Apex Court was dealing with the case, wherein the crime was registered for offences under Secs. 307, 324 323 read with Sec. 34 of the IPC. The Apex Court, after dealing with various decisions on the point, has issued various guidelines in paragraph 29 thereof, which read as follows:
“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.
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 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 offences alleged to have been committed under special statute 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.
29.4 On the other, those criminal cases having overwhelmingly and pre-dominantly 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.
29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
29.6 Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later 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.
29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.”
The above said decision in Narinder Singh v. State of Punjab was subsequently relied on by the Supreme Court in the case Manohar Singh v. Madhya Pradesh & Anr. reported in 2014 Crl.L.J.4326.
8. After consideration of the submissions of the petitioners' counsel, the counsel for the contesting respondents and the learned Public Prosecutor in the respondent-State, this Court is of the considered opinion that taking into account the specific guidelines engrafted by the Apex Court in para 61 of Gian Singh v. State of Punjab, reported in (2013) 1 SCC (Cri) 160 and the further detailed guidelines laid down by the Apex court in Narinder Singh's case reported in (2014) 6 SCC 466, that the present cases involving quashment of impugned criminal proceedings for offences under Sec. 376 IPC, is not a fit case for exercise of discretion under the extra ordinary powers under Sec. 482 of the Cr.P.C. on the ground of settlement. The power under Sec. 482 is of wide plenitude, but the same has to be exercised with great caution and circumspection. Therefore this Court is not inclined to exercise the discretion for allowing the plea of quashment of the impugned criminal proceedings for an offence under Sec. 376 of the IPC on the ground of settlement between the accused and the Prosecutrix in the facts and circumstances of this case. It is made clear that this Court has not made any observations on the sustainability or otherwise of the case of the prosecution in the instant case. In this view of the matter, this Court is not inclined to allow the prayer for quashment.
Faced with this situation, the learned counsel for the petitioners sought liberty of this Court to seek plea of discharge before the court below, at the appropriate stage. It is made clear that nothing in this order will preclude the petitioners in any manner to seek appropriate plea of discharge before the court below, if the stage for seeking such plea has not yet been crossed.
With these observations, the Criminal Miscellaneous Cases stand dismissed.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge