Court No. - 65
Case :- APPLICATION U/S 482 No. - 29595 of 2019 Applicant :- Vinod Nirwal And Anr Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajiv Sisodia,Virendra Singh Tomar Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Sri Dhirendra Srivastava, learned counsel for the opposite party no. 2 has filed an affidavit today, the same is taken on record Heard Sri Virendra Singh Tomar, learned counsel for the applicants, Sri Dhirendra Srivastava, learned counsel for the opposite party no. 2 and Sri G.P. Singh, learned A.G.A. for the State.
The present application has been filed with a prayer to quash the impugned charge sheet no. NIL dated 30.10.2018 in S.T. No. 1311 of 2018, arising out of Case Crime No. 275 of 2018, under Sections 376D, 354 IPC and Section 3/4 POCSO Act, P.S. Adarsh Mandi, District Shamli.
It has been argued by the learned counsel for the applicants that the sole ground of seeking quashing of proceedings is that the accused-applicant and the opposite party no. 2 were in live-in- relationship on the date of occurrence. The opposite party does not want to proceed with the case.
Sri Dhirendra Srivastava, learned counsel for the opposite party no. 2 has filed an affidavit and in paragraph no. 5 of which, it has been averred that the present parties are not living together and have amicably resolved their controversy. They are not interested to pursue first-information-report and she has no objection if the present sessions trial is quashed, therefore, it is prayed that the proceedings may be quashed as there is no dispute lying between the parties.
Learned A.G.A. has vehemently opposed the prayer of quashing.
According to F.I.R., the opposite party no. 2 had come in contact with the accused-applicant on Facebook and thereafter she was enticed away by him and was taken to a hotel where he established illicit relationship with her. On 31.8.2018 at about 6:00 pm, she had received phone call and that her father's treatment would be given at Shamli in Ganga Amrit Hospital and when she inquired about the expenditure to be incurred, she was assured that the same would be taken care of and the amount was not disclosed. On 1.9.2018 again phone-call was received and she was called to Shamli and when she went there, she was taken to a hospital and thereafter she was taken to an unknown place and when the opposite party no. 2 resisted and made hue and cry, she was asked to consume some cold-drink, thereafter, she informed police by calling at 100 number. After investigation, police has submitted charge sheet in this case under the above mentioned sections and on the basis of allegations made in the F.I.R., it cannot be denied that cognizable offence is made out against the accused-applicant.
It would be pertinent to refer here the law laid down by Apex Court in Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303, which is as follows:-
"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."
In view of above position of law, even if the settlement takes place, in such a case which falls under the category of heinous offence, the compromise cannot be permitted. Accordingly, the quashing of the charge sheet is refused.
However, the applicants may approach the trial court to seek discharge, if so advised, and before the said forum,they may raise all the pleas which have been taken by them 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 applicants may appear before Committal Court within 30 days to get their 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 do not appear before the Committal Court, the said Court shall take coercive steps to procure their attendance.
With aforesaid direction, this application is finally disposed of.
Order Date :- 30.7.2019 A.P. Pandey