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2017 DIGILAW 1466 (GAU)

Abubakkar Siddique @ Dhanti Ali v. State of Assam

2017-11-22

MIR ALFAZ ALI

body2017
JUDGMENT : 1. Heard Mr. J.I. Borbhuiya, learned counsel for the petitioner. Also heard Ms. S. Jahan, learned Addl. P.P. for the State/respondent No. 1 and Mr. S. Sarma, learned counsel for the respondent No. 2. 2. By this application under section 482, Cr.PC, the petitioner has prayed for quashing the criminal proceeding in GR Case No. 781/2012 arising out of Kamalpur PS Case No. 240/2012 on the basis of compromise arrived at between the parties. 3. The brief facts of the case are that an FIR was lodged by the respondent No. 2, Smt. Marija Bibi with the Changsari Police Outpost stating, inter alia, that on 18.7.2012, the present petitioner kidnapped her daughter, who was aged about 17 years at that time. On the basis of such FIR, police registered a case under section 366A, IPC. During the course of investigation, the statement of the alleged victim was recorded under section 164, Cr.PC by the learned Magistrate, wherein she had stated that she was in love with the present petitioner and she eloped with the petitioner out of her own will, as the members of her family wanted to give her in marriage with someone else against her will. After usual investigation, police submitted charge-sheet against the petitioner. 4. Learned counsel for the petitioner submits that the petitioner and the daughter of the informant have already married as per Muslim Personal Law and they are living as husband and wife, having been blessed with a girl child. 5. Learned counsel for the respondent No. 2 (informant) also submits, supporting the petitioner, that both the parties have settled the matter, as the daughter of the respondent No. 2 already married the petitioner and they are living as husband and wife. The marriage certificate has also been produced as proof of the marriage. As the trial court lacks jurisdiction to entertain a compromise between the parties because of the statutory bar under section 320, IPC, the petitioner has approached this court under section 482, Cr.PC for quashing the proceeding. 6. The law relating to quashment of the criminal proceeding on the basis of compromise between the parties is by now well settled. 7. As the trial court lacks jurisdiction to entertain a compromise between the parties because of the statutory bar under section 320, IPC, the petitioner has approached this court under section 482, Cr.PC for quashing the proceeding. 6. The law relating to quashment of the criminal proceeding on the basis of compromise between the parties is by now well settled. 7. The Apex Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 , a three-judge Bench, elaborately dealing with scope of inherent power of the High Court under section 482, Cr.PC in quashing a criminal proceeding on compromise observed as under: “The position that emerges from the above discussion can be summarized, 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 of FIR 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. 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 favour 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 proceedings 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.” 8. In Narinder Singh v. State of Punjab, (2014) 6 SCC 466 laid down the following guidelines for the High Court while exercising the power under section 482, Cr.PC for quashing the criminal proceeding, accepting compromise between the parties: “31. In Narinder Singh v. State of Punjab, (2014) 6 SCC 466 laid down the following guidelines for the High Court while exercising the power under section 482, Cr.PC for quashing the criminal proceeding, accepting compromise between the parties: “31. 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: (I) 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. (II) 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. (iii) 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. (IV) On the other, those criminal cases having overwhelmingly and pre-dominantly dvil 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. (IV) On the other, those criminal cases having overwhelmingly and pre-dominantly dvil 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. (V) 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. (VI) 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. (VII) While deciding whether to exercise its power under section 482 of the Code or not, timings of settlement play a crucial role. 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. (VII) 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 to 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. In the present case, FIR No. 121 dated 14.7.2010 was registered under section 307/324/323/34, IPC. Investigation was completed, whereafter challan was presented in the court against the petitioner herein. Charges have also been framed; the case is at the stage of recording of evidence. 33. In the present case, FIR No. 121 dated 14.7.2010 was registered under section 307/324/323/34, IPC. Investigation was completed, whereafter challan was presented in the court against the petitioner herein. Charges have also been framed; the case is at the stage of recording of evidence. At this juncture, parties entered into compromise on the basis of which petition under section 482 of the Code was filed by the petitioners, namely, the accused persons for quashing of the criminal proceedings under the said FIR. As per the copy of the settlement which was annexed along with the petition, the compromise took place between the parties on 12.7.2013 when respectable members of the Gram Panchayat held a meeting under the Chairmanship of Sarpanch. It is stated that on the intervention of the said persons/Panchayat, both the parties were agreed for compromise and have also decided to live with peace in future with each other. It was argued that since the parties have decided to keep harmony between the parties so that in future they are able to live with peace and love and they are the residents of the same village, the High Court should have accepted the said compromise and quash the proceedings.” 9. The Apex Court in Central Bureau of Investigation v. Narendra Lal Jain, (2014) 5 SCC 364 observed that” it must be remembered that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under section 482, Cr.PC.” Recently the Apex Court in Parbhat Bhai Aahir @ Parbatbhai Bhimsinhbhai Karmur v. State of Gujarat, (Criminal Appeal No. 1723/2017), relied by learned counsel for the petitioner also reiterated the principles and guidelines for quashing criminal proceeding in exercise of power under section 482, Cr.PC. 10. 10. The common thread passing though all these authorities is that the power of the High Court in quashing a criminal proceeding by accepting the settlement between the parties is quite different from the power under section 320, Cr.PC and the High Court should not hesitate to quash the criminal proceeding by accepting compromise between the parties, if such recourse is found serving the cause of justice or preventing the abuse of process of the court, unless the offences are of heinous nature such as murder, rape, dacoity, etc., and of economic offences having serious impact on the society. In order to give adequate treatment to compromise between the parties by exercising inherent power under section 482, Cr.PC, the question to be posed is whether acceptance of the compromise and quashment of the proceeding (i) would secure ends of justice (ii) prevent the abuse of the process of the court. If the answer is in the affirmative court should encourage the compromise except in heinous offences. 11. It is also to be borne in mine that there cannot be a straight jacket formula for exercising the power under section 482, Cr.PC to quash a criminal proceeding accepting compromise between the parties. The Apex Court in Narinder Singh case (supra) observed that High Court should not decline to quash a proceeding in respect of an offence falling in the category of serious nature merely looking at the section of the Penal Code put by the police or the charge framed under such provision. High Court should examine as to whether for incorporation of a particular penal section, prosecution has collected sufficient evidence, which if proved would lead to proving of the said offence. The stage at which quashing is sought is also a relevant factor to be considered. It can also been seen from the guidelines laid down by the Apex Court that where settlement is arrived at, at the early stage of the proceeding High Court may be liberal in accepting the settlement to quash a criminal proceeding. 12. Keeping in view the above principle, let us turn to the facts of the present case. It can also been seen from the guidelines laid down by the Apex Court that where settlement is arrived at, at the early stage of the proceeding High Court may be liberal in accepting the settlement to quash a criminal proceeding. 12. Keeping in view the above principle, let us turn to the facts of the present case. Although police submitted charge sheet under section 366A IPC against the petitioner, materials on record show that the alleged victim was a grownup girl attaining the age of giving her own consent, though technically she was only few days (less than a month) short of attaining majority. She eloped with the petitioner out of her own will as her parents were contemplating her marriage with some other person against her will. It is evident from the materials brought on record that the petitioner and the alleged victim have already married and they are living as husband and wife having a child and the family members of the alleged victim have also accepted the relation between the petitioner and the alleged victim and settled the matter. Although technically the victim was a minor at the relevant time, considering the peculiar facts of the case and the materials brought on record, it cannot be said that she was kidnapped or abducted without her consent by the petitioner. The fact that the alleged victim was on the verge of attaining majority and eloped with the petitioner and has been living a peaceful life after marrying the petitioner out of her own will, ruled out the existence of requisite intention on the part of the petitioner for constituting an offence under section 366A. To be frank the essential ingredients to constitute an offence under section 366A is absent in the present case. 13. Be that as it may, when the alleged victim girl has almost attained majority at the time of occurrence and being a grownup girl attaining the age of consent, also entered into marriage with the petitioner and have been living peacefully as husband and wife, having a girl child, and both the parties have amicably settled the matter, in my considered view, the present case though not compoundable under section 320, IPC, is required to be quashed, as allowing this proceeding to continue would not serve any purpose of justice, rather, it will be an abuse of process of the court. Because the totality of the facts and circumstance of the case as indicated above clearly suggest that allowing the continuation of the present proceeding would become oppressive and sure to take the character of a lame prosecution. 14. Thus, having considered the totality of the matter, I am of the view that this is a fit case where this court should exercise the inherent power under section 482, Cr.PC to quash the proceeding for the ends of justice. 15. Accordingly, the proceeding in GR Case No. 781/2012 corresponding to Kamalpur PS Case No. 240/2012 and other proceedings incidental ther eto are hereby quashed and set aside. 16. The petition stands disposed of accordingly.