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Madhya Pradesh High Court · body

2015 DIGILAW 964 (MP)

Pankaj Tiwari v. State of M. P.

2015-09-11

S.K.PALO

body2015
ORDER 1. This petition has been filed under section 482 of CrPC for invoking the inherent jurisdiction of this Court and to quash the Crime No.489/15 registered at Police Station Morar, under sections 376, 313, 120B of IPC. 2. The petitioner and the complainant/respondent No.2 have jointly filed application I.A.No.6634/15 under section 320 (2) of CrPC stating that they have entered into compromise amicably and settled the matter and no dispute remains between them. The complainant/prosecutrix and the petitioner/accused have filed separate affidavits in support of the same. It is stated that they married before Arya Samaj, Bilowa, District Gwalior on 14.7.2015. On the basis of which it is requested to quash the FIR at Crime No.489/15 dated 25.7.2015. 3. After sending the record for verification of the factum of compromise to the Principal Registrar of this Court vide note dated 11.8.2015, has submitted that after verifying the complainant/respondent No.2 and the accused/petitioner, he is satisfied that they have arrived at compromise voluntarily, without any threat, inducement and coercion. 4. On the basis of the same, the petitioner prayed for quashing the FIR and the subsequent criminal proceeding. Reliance has been placed on Gian Singh v. State of Punjab and another, reported in (2013)1 SCC (Cr) 160. On behalf of the petitioners, learned counsel advanced the arguments that both the parties have entered into marriage. Previously they were live-in relationship but now they have married and are living together. No fruitful result would come out if the criminal proceedings continue. Therefore, compromise be accepted for the ends of the justice and to prevent the abuse of the process of the Court. 5. Counsel for the petitioner relied on Hemant Choubey v. State of M.P. [2015(II) MPJR 62], in which framing of charge against accused under section 376 was set aside, for there was “consensual sexual relationship” between the accused and the prosecutrix. The case is not similar to the present one because the order was passed in a revision after evaluating evidence but in the present case, the petitioner seeks quashment of FIR and the criminal proceedings in a petition under section 482 of CrPC. 6. The case is not similar to the present one because the order was passed in a revision after evaluating evidence but in the present case, the petitioner seeks quashment of FIR and the criminal proceedings in a petition under section 482 of CrPC. 6. Counsel for the petitioner also placed reliance on Udai v. State of Karnataka [2003 SCC (Cr) 775], in which the Hon’ble Supreme Court in the appeal has held that “’Consent’ under misconception of fact-burden is on the prosecution to prove each and every ingredient of the offence, absence of “consent” being one of them. “Consent” given under misconception of fact contemplated by section 90 as a wider application so as to include circumstances not enumerated in section 375 and the appeal was allowed after evaluating evidence. The Hon’ble apex Court has held that the “consent” cannot be said to be given under a misconception of fact. But in the present case, the circumstances are different. The petitioner said to have committed sexual intercourse by pressurizing her to marry and later denied to marry. 7. Counsel for the petitioner further relied on Deelip Singh Alias Dilip Kumar v. State of Bihar, reported as 2005 SCC (Cr) 253, which is again on the question of “consent”. “Hon’ble the Supreme Court in this case discussed about the “consent” given by a woman believing the man’s promise to marry her would fall within the expressing “without her consent”, only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax”. Finding can only be given in this regard after evidence is adduced. Without which it cannot be held that the petitioner had the intention to marry her but could not do so. 8. In another case of Prashant Bharti v. State of NCT of Delhi, reported as 2013 (Suppl.) CrLR (SC) 62, which is relied by the learned counsel for the petitioner, Hon’ble Supreme Court has held that there was allegation of having physical relations with the prosecutrix on the basis of false promise to marry her as per se false. Hence, the complainant herself approached the High Court to quash the FIR lodged by her which was allowed. Similar is not the case in the present petition. 9. Learned counsel for the respondent/State opposed the application. 10. Hence, the complainant herself approached the High Court to quash the FIR lodged by her which was allowed. Similar is not the case in the present petition. 9. Learned counsel for the respondent/State opposed the application. 10. Having gone through the rival arguments and on perusal of the record, it is found that FIR was lodged by respondent No.2 on 25.7.2015, whereas photocopy of Arya Samaj Bilova, Gwalior, shows the date of marriage is 14.7.2015. The affidavits were also sworn on the same date. That means the FIR was lodged after the so called date of marriage. Alleged crime was committed on 17th April, 2014 at the first floor of the Police Station, Morar, where it is allegedly committed by the petitioner by calling the prosecutrix on the pretext of election duty and the matter was reported to the Town Inspector. The petitioner fell on the prosecutrix’s legs and pleaded for excuse and promised to marry her within two months. She was also taken to different places by the accused and sexually abused her. 11. In Gian Singh case (supra), Hon’ble the Supreme Court has categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statue, like the Prevention of Corruption Act or the offences committed by public servant while working in that capacity, no compromise can be accepted. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court, and in as much as, settlement of such heinous crime cannot have imprimatur of the Court. 12. At paragraph 61, Hon’ble the apex Court has clearly and unambiguously stated that for 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 Prevention of Corruption Act or offences committed by the public servants while working in that capacity etc. cannot provide for any basis for quashing criminal proceedings involving such offences. Such offences are not private in nature and have a serious impact on society. 13. Similarly, any compromise between the victim and the offender in relation to the offences under the Prevention of Corruption Act or offences committed by the public servants while working in that capacity etc. cannot provide for any basis for quashing criminal proceedings involving such offences. Such offences are not private in nature and have a serious impact on society. 13. It would be appropriate to refer the case of Divine Retreat Centre v. State of Kerala and others [ (2008)3 SCC 542 ], in which Hon’ble the apex Court has opined that : “There is nothing like unlimited arbitrary jurisdiction conferred on the High Court under section 482 CrPC. The power under section 482 has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself. Section 482 does not confer any new power on the High Court but only saves the inherent power which the Court possessed before the enactment of the Criminal Procedure Code, 1973. There are three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the CrPC, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.” In the present case, none of the three ingredients warranted the exercise of the inherent jurisdiction. 14. In an unreported case by Delhi High Court in Mayank Pandey v. State and others, decided on 16th December, 2013, in Criminal Miscellaneous Case 2206/2013, has declined to quash such proceeding in a similar case. 15. The main contention of the petitioner in the case of Mayank (supra), that the petitioner is married to respondent No.2, therefore, both of them are now living happily, the prosecutrix has agreed not to pursue the complaint and as such keeping in view the interest of justice, the FIR be quashed. However, while disallowing the same, the High Court of Delhi placed reliance on Shimbhu and another v. State of Haryana [ (2014)13 SCC 318 ]. 16. However, while disallowing the same, the High Court of Delhi placed reliance on Shimbhu and another v. State of Haryana [ (2014)13 SCC 318 ]. 16. In a recent judgment, Hon’ble the apex Court in State of Madhya Pradesh v. Madanlal, reported as 2015(3) JLJ 295= (2015)7 SCC 681 , relied on the case of Shimbhu (supra), and held that : “A. Penal Code, 1860 -- S.376 r/w S.511 – rape or attempt to rape -- compromise -- Relevance -- Held, in case of rape or attempt to rape, compromise under no circumstances can really be thought of since these are crimes against the body of a woman, which is her own temple -- principles laid down by three -Judge Bench in Shimbhu [ (2014)13 SCC 318 ], relied on -- Courts must beware of this subterfuge to adopt soft/liberal approach which would be in the realm of error, and is legally impermissible -- such attitude reflects lack of sensibility towards the dignity of woman – Single Judge of High Court erred in being influenced by compromise entered into between accused and parents of victim since victim was a minor, and convicting accused under section 354 IPC while setting aside his conviction under section 376(2)(f) r/w section 511 -- matter remanded for decision afresh.” 17. The Court observed that in a case of rape or attempt to rape the compromise under no circumstances can be really thought of, since there are crimes against the body of a woman which is her own temple. These are the offences which suffocate the breath of life and sully the reputation. The Supreme Court has categorically stated that there cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of “spectacular error”. Such an attitude reflects lack of sensibility towards the dignity, the ‘elan vital’, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility. 18. Such an attitude reflects lack of sensibility towards the dignity, the ‘elan vital’, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility. 18. In view of the aforesaid discussion, the petition is dismissed.