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2014 DIGILAW 2802 (ALL)

Abhishek Gupta v. State of U. P.

2014-09-10

SHASHI KANT, V.K.SHUKLA

body2014
JUDGMENT By the Court.—Abhishek Gupta s/o Ashwani Kumar Gupta is before this Court with the following prayers: (i) Issue an appropriate writ, order or direction in the nature of certiorari quashing the impugned First Information Report dated 5.8.2014 registered as Case Crime No. 59 of 2014 under Sections 498A, 323, 377, 376, 511, 354, 120B, 504, 506 IPC and 3 read with Section 4 of Domestic Violence Act, P.S. Mihila Thana, District Kanpur Nagar. Brief background of the case is that on 6.12.2013, petitioner has entered into matrimonial alliance with respondent No. 3, Smt. Ragini Gupta and this much is reflected that thereafter there has been matrimonial discord resulting in lodging of present FIR dated 5.8.2014 being Case Crime No. 59 of 2014 under Sections 498A, 323, 377, 376, 511, 354, 120B, 506, 504 IPC and 3 read with Section 4 of the Domestic Violence Act, P.S. Mahila Thana, District Kanpur Nagar. 2. Petitioner has come up with a case that on 25.8.2014, he has entered into compromise with respondent No. 3 and have amicably settled the matrimonial discord in question to the effect that entire dispute to the parties has been settled and the petitioner would withdraw proceedings under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights and petitioner would pay a sum of Rs. 35 lacs to the informant and her family members on account of which divorce proceedings would be initiated by filing a joint petition under Section 13B of the Hindu Marriage Act, 1955. Petitioner has further contended that once such is the factual situation that compromise has been entered between the parties, then this Court should come to the rescue and reprieve of the petitioner by quashing the present FIR. 3. On behalf of complainant, Shri Sanjay Srivastava, Advocate has entered appearance and he informs the Court that inter se parties compromise has been entered to settle all the dispute between the parties and parties to the dispute have all intentions to bring the dispute to an end, to lead further peaceful life. 4. 3. On behalf of complainant, Shri Sanjay Srivastava, Advocate has entered appearance and he informs the Court that inter se parties compromise has been entered to settle all the dispute between the parties and parties to the dispute have all intentions to bring the dispute to an end, to lead further peaceful life. 4. On the parameters of the aforementioned statement of fact, this Court proceeded to look into the records and it is reflected from the record that Abhishek Kumar Gupta, petitioner and Smt. Ragini Gupta, respondent No. 3 has entered into matrimonial alliance on 6.12.2013 and there has been matrimonial discord between the parties and Smt. Ragini Gupta has left her matrimonial house and has proceeded to live with her parents. It is further reflected that on 18.2.2014, petitioner has filed a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of his conjugal rights and thereafter on 5.7.2014 petitioner has proceeded to approach the D.I.G. Kanpur Nagar alleging that informant has been threatening him to implicate him in false and fabricate case and after one month of the same, the present FIR has been lodged u/s 498A, 323, 377, 376, 511, 120B, 506, 504 and Section 3 read with Section 4 of the Domestic Violence Act, P.S. Mahila Thana, District Kanpur Nagar by the informant mentioning therein that petitioner has time and again sought dowry and subjected the informant to cruelty and rape and now the parties have visualised that litigation would not reap any results, and this thought process has impelled them to arrive at settlement consenting to live separately and accordingly asking this Court to come to the rescue and reprieve of the parties by quashing the proceedings in question in peculiar facts of case for bringing peace and harmony in between the parties. 5. 5. The request from both the sides, i.e. the petitioner as well as the informant respondent No. 3 that FIR in question be quashed as parties have amicably settled the dispute as same has been arising out of matrimonial discord, has been vehemently resisted by learned A.G.A., who has proceeded to submit apart from other offences levelled against petitioner, the offence u/s 376, 377 IPC not being compoundable, same cannot be quashed, in the facts of the case, and same would tantamount to defeating the law itself, however this fact has been conceded that the informant on 5.9.2014 has moved application before the Investigating Officer, accompanied with compromise with a request that no further action be taken. Apart from this on the same date her statement under Section 161 Cr.P.C. and therein also she has given reference of compromise and has also made her intentions clear that she does not intend to further pursue the matter, and accordingly to ensure release of Abhishek Gupta report under Section 169 Cr.P.C. is being send separately. 6. After respective arguments have been advanced, this Court proceeds to take note of the view point of the Apex Court, wherein on account of settlement between an offender and victim, FIR has been quashed on the premises that ends of justice would justify such exercise of power as ultimate consequence of 498A, 323, 377, 376, 511, 120B, 506, 504 the same would be acquittal or dismissal of indictment, in the case of Gian Singh v. State of Punjab and another, (2012) 10 SCC 303 , the Apex Court has summarized the legal position in the matter of quashing the FIR. Relevant paragraph 61 of the aforementioned judgement reads as follows: “61. The position that emerges from the above 498A, 323, 377, 376, 511, 120B, 506, 504 discussion can be 498A, 323, 377, 376, 511, 120B, 506, 504 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. 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 498A, 323, 377, 376, 511, 120B, 506, 504 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.” 7. Once again in the case of Narindra Singh and others v. State of Punjab and another, (2014) 6 SCC 466 , the Apex Court has proceeded to give detailed guidelines wherein the Court should accept settlement between the parties and when it should refrain from doing so. The relevant extract of the same is as follows: “17. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of “emotion” in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter-se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the Court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences etc. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where “correctional” objective of criminal law would have to be given more weightage in contrast with “deterrence” philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after examining all these parameters and then deciding as to which course of action it should take in a particular case. 25. In the case of Dimpey Gujral (supra), observations of this Court were to the effect that offences involved in that case were not offences against the society. It included charge under Section 307 IPC as well. However, apart from stating so, there is no detained discussion on this aspect. Moreover, it is the other factors which prevailed with the Court to accept the settlement 498A, 323, 377, 376, 511, 120B, 506, 504 and compound he offence, as noted above while discussing this case. On the other hand, in Shambhu Kewat (supra), after referring to some other earlier judgments, this Court opined that commission of offence under Section 307 IPC would be crime against the society at large, and not a crime against an individual only. We find that in most of the cases, this view is taken. Even on first principle, we find that an attempt to take the life of another person has to be treated as a heinous crime and against the society. 26. We find that in most of the cases, this view is taken. Even on first principle, we find that an attempt to take the life of another person has to be treated as a heinous crime and against the society. 26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the Court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/Charge-sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under Section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessary included in the charge-sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties. 27. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173,Cr.P.C. is also placed before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined alongwith another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case.” 8. On the parameters that has been so settled by Apex Court, this Court proceeds to examine the facts of the case in hand as to when offence that has been alleged to have been committed is falling under Section 376 & 377 IPC alongwith other sections and admittedly petitioner and respondent No. 4 have entered into compromise and intend to bring quietus to the dispute, can this Court proceed to quash the FIR in question. 9. Section 376 & 377 IPC under the Indian Penal Code falls under the category of heinous and serious offence and there is a word of caution that offences like murder, rape, dacoity, unnatural sex etc. cannot be fittingly quashed even though the victim or victim’s family have settled the dispute as it is a crime against the society at large and not a crime against an individual only who has been victim. cannot be fittingly quashed even though the victim or victim’s family have settled the dispute as it is a crime against the society at large and not a crime against an individual only who has been victim. Apex Court in the case of Shimbhu and another v. State of Haryana, 2013 (83) ACC 711, has clearly taken the view that rape is a non-compoundable offence against the society and in such matters there is no need to take softer view. In the said case also during the pendency of appeal, the girl in question had come up with the case that she was a consenting party to the alleged crime and has settled the matter. 10. The issue is should this Court rest its decision merely because there is mention of Section 376 & 377 IPC in the FIR or this Court should examine as to whether Section 376 & 377 IPC has been mentioned for the sake of it or the prosecution has collected sufficient evidence, which if proved would lead to proving the charge under Section 376 & 377 IPC. While dealing with offence under Section 307 IPC Apex Court in the case of Narinder Singh v. State of Punjab, 2014 (6) SCC 464, mentioned that same falls in the category of heinous and serious offences and therefore, are to be generally treated as crime against society and not against individual alone, and Court should not rest its decision based on mention of section. Relevant extract of said judgement is as follows; “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. 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. 33. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now, which could not be finalized”. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No. 121 dated 14.7.2010 registered with Police Station Lopoke, District Amritsar Rural be quashed. We order accordingly.. ” 11. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No. 121 dated 14.7.2010 registered with Police Station Lopoke, District Amritsar Rural be quashed. We order accordingly.. ” 11. Here in the case in hand there is mention of Section 376 & 377 IPC alongwith Sections 498A, 323, 511, 354, 120B, 506, 504 IPC and and Section 3 read with Section 4 of the Domestic Violence Act. The picture that is so emerging in the present case is that Abhishek Gupta (petitioner) and respondent No. 3 Smt. Ragini Gupta have entered into matrimonial alliance with each other and thereafter some differences have arrived between the parties and the same has resulted in lodging of FIR on 5.8.2014, and before any investigation could be carried out to bring quietus to dispute, parties have come forward to settle the dispute and in the said direction, giving reference of settlement arrived at inter se parties, Ragini has not supported the case of prosecution, and report in favour of petitioner under Section 169 Cr.P.C. has been send separately, and now parties are before this Court and now respondent No. 3 Smt. Ragini Gupta has joined petitioner for quashing of proceedings as per the arrangement arrived at. 12. Once such factual situation is emerging alongwith settlement in question, the fate of prosecution case is written on the wall, as there are virtually no chances of witness coming forward to support the prosecution case and chances of conviction also being completely remote. 13. 12. Once such factual situation is emerging alongwith settlement in question, the fate of prosecution case is written on the wall, as there are virtually no chances of witness coming forward to support the prosecution case and chances of conviction also being completely remote. 13. Once immediate reason for lodging FIR has been matrimonial discord and relationship has been given slant of an offence under Section 376 & 377 IPC, and settlement has been arrived at in between parties, and this Court being fully conscious of the fact, that entire exercise henceforth would be of no consequence and contrarily would disturb harmony and peace inter-se parties, and by remotest chance would never end up in conviction, and, accordingly, keeping in view such attending and inseparable circumstances, in the ends of justice and to prevent the abuse of process of law, we are of the view that in peculiar facts of the case, there being hardly any chance of offender being punished, the FIR in question deserves to be quashed to bring quietus to the dispute and, accordingly, the entire proceedings so undertaken pursuant to F.I.R. Dated 5.8.2014, lodged by respondent No. 3, in Case Crime No. 59 of 2014 under Sections 498A, 323, 377, 376, 511, 354, 120B, 506, 504 IPC and 3 read with Section 4 of the Domestic Violence Act, P.S. Mahila Thana, District Kanpur Nagar, stands quashed. Writ petition is allowed. No order as to cost. —————