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2014 DIGILAW 1183 (RAJ)

Kapil Anand v. State of Rajasthan

2014-05-20

MAHESH CHANDRA SHARMA

body2014
JUDGMENT This petition has been filed under Section 482 CrPC for dropping the proceedings in Case No. 1052/2013 – State of Rajasthan Versus Kapil Anand pending in the Court of Addl. Chief Metropolitan Magistrate No.2, Jaipur Metropolitan, Jaipur for the offence under Sections 354, 354 (D) of IPC on the basis of compromise filed by the parties on 20.2.2014 before the trial court. Brief facts of the case are as under : “Respondent no.2 Mrs. Jyoti Jethmalani lodged a First Information Report, which was numbered as FIR No. 355/2013 at Police Station, Gandhi Nagar, Jaipur against the accused petitioner for the offence under Section 354 IPC, in which it was stated that accused petitioner Kapil Anand was harassing and threatening her through Internet to divorce her husband and marry him and on 22.7.2013 at about 2.20 PM when she came to Kanodia College, Jaipur for examination, he met her and threatened that he would take her that day and while saying so, he caught her by hand. During the course of investigation, both the parties entered into the compromise and they submitted the same before the police, but police after completion of investigation, submitted a charge sheet against the accused petitioner for the offence under Sections 354 and 354 (C) IPC. During the course of trial before the Addl. Chief Metropolitan Magistrate No.2, Jaipur Metropolitan on 20.2.2014, both the parties submitted a joint application along-with the compromise with the prayer to attest the compromise entered into between the parties and to compound the matter on the basis of compromise. Learned counsel for the petitioner has contended that the aforesaid application is pending before the trial court, but the order has not been passed by the trial court on such application. The complainant lodged the First Information Report, but with the efforts of the well wishers of both the parties, they arrived to an amicable settlement, but even then the police has not submitted a Final Report and submitted the charge sheet. They have moved an application before the Addl. Chief Metropolitan Magistrate No.2, Jaipur Metropolitan on 20.2.2014 to settle the matter amicably on the basis of compromise, but the said application has not been decided by the court below. The dispute, which was narrated in the charge sheet could be brought to an end by way of compounding of the offence on the basis of compromise. Chief Metropolitan Magistrate No.2, Jaipur Metropolitan on 20.2.2014 to settle the matter amicably on the basis of compromise, but the said application has not been decided by the court below. The dispute, which was narrated in the charge sheet could be brought to an end by way of compounding of the offence on the basis of compromise. Hence, the direction be given to the court below to attest the compromise and drop the proceedings in Case No. 1052/2013 – State of Rajasthan Versus Kapil Anand. Learned PP appearing for the State has opposed the same. Here it is relevant to reproduce Sections 354A, 354B, 354C and 354D IPC, which are as under : “354A. Sexual harassment and punishment for sexual harassment.- (1) A man committing any of the following acts— (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 354B. Assault or use of criminal force to woman with intent to disrobe.- Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine. 354C. 354C. Voyeurism.- Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine. Explanation 1.—For the purpose of this section, "private act" includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public. Explanation 2.—Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section. 354D. Stalking.- (1) Any man who— (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, email or any other form of electronic communication commits the offence of stalking; Provided that such conduct shall not amount to stalking if the man who pursued it proves that- (i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or (ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or (iii) in the particular circumstances such conduct was reasonable and justified. (2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.” Hon'ble Apex Court in the case of Gian Singh Vs. State of Punjab & Anr., reported in JT 2012 (9) SC 426, held as under : “However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.” Further, the Hon'ble Supreme Court in the case of Shiji @ Pappu & Ors. vs Radhika & Anr, reported in (2011) 10 SCC 705 , held as under : “It was a case which has its origin in the civil dispute between the parties, which dispute has, it appears, been resolved by them. That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some misunderstanding and misconception will be a futile exercise that will serve no purpose. It is noteworthy that the two alleged eye witnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. It is noteworthy that the two alleged eye witnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. Section 482 Cr.P.C. could, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the Courts below.” Hon'ble Supreme Court in the case of B.S. Joshi & Ors vs State Of Haryana & Anr. reported in JT 2003 (3) SC 277, held as under : “In view of the above discussion, we hold 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.” Further, the Hon'ble Supreme Court in the case of Jagdish Chanana & Ors vs State of Haryana & Anr., reported in JT 2008 (4) SC 511 held as under : “The fact that a compromise has indeed been recorded is admitted by all sides and in terms of the compromise the disputes which are purely personal in nature and arise out of commercial transactions, have been settled in terms of the compromise with one of the terms of the compromise being that proceedings pending in court may be withdrawn or compromised or quashed, as the case may be. In the light of the compromise, it is unlikely that the prosecution will succeed in the matter. We also see that the dispute is a purely personal one and no public policy is involved in the transactions that had been entered into between the parties. In the light of the compromise, it is unlikely that the prosecution will succeed in the matter. We also see that the dispute is a purely personal one and no public policy is involved in the transactions that had been entered into between the parties. To continue with the proceedings, therefore, would be a futile exercise.” Hon'ble Apex Court in the case of Nikhil Merchant vs C.B.I. & Anr., reported in (2008) 9 SCC 677 held as under : “On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.” Hon'ble Supreme Court in the case of Jayrajsingh Digvijaysingh Rana vs State Of Gujarat & Anr. reported in 2012 Cr.L.R. (SC) 743 held as under : “In such bona fide circumstances, the power under Section 482 may be exercised. Further, in view of the settlement arrived at between Respondent No. 2-the complainant and the appellant (Accused No. 3), there is no chance of recording a conviction insofar as the present appellant is concerned and the entire exercise of trial is destined to be an exercise in futility. Inasmuch as the matter has not reached the stage of trial, we are of the view that the High Court, by exercising the inherent power under Section 482 of the Code even in offences which are not compoundable under Section 320, may quash the prosecution. However, as observed in Shiji (supra), the power under Section 482 has to be exercised sparingly 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. However, as observed in Shiji (supra), the power under Section 482 has to be exercised sparingly 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. In other words, the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law.” The Coordinate Bench of this Court in the case of B.S. Tomar (Dr.) & Anr. Versus State of Rajasthan reported in 2014 (2) Cr.L.R. (Raj.) 684 held as under : “6. Considering the fact that the offence alleged against the petitioners is more in the nature of personal wrong, rather than a threat to the society at large, considering the fact that parties have entered into a compromise, this Court is of the opinion that the offence under Sections 354A, 354D and 370 IPC are compounded. 7. Consequently, the petition is hereby allowed and the FIR No. 239/2013 registered at Police Station Chandawaji, Jaipur for the offences under Sections 354A, 354D and 370 I.P.C. Is hereby quashed and set aside.” Looking to the facts and circumstances of the case and in the light of the aforesaid judgments of Hon'ble Supreme Court as well as this Court, since it is a personal wrong between the parties and both the parties have entered into the compromise, this petition is disposed of with the following directions : (i) If both the parties submit a fresh compromise application along-with the affidavits before the Court below and put their signatures upon the order-sheet of the court file, which will be identified and attested before the Court, then the court below is directed to attest the compromise application filed by the parties, supported by affidavits, and compound the matter in the light of compromise arrived at between the parties. The stay application also stand disposed of accordingly.