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2017 DIGILAW 2551 (ALL)

MAYANK @ BOBY v. STATE OF U. P.

2017-11-06

YASHWANT VARMA

body2017
JUDGMENT : Hon'ble Yashwant Varma,J. 1. Heard learned counsel for the applicant and Mr. Praveen Srivastava, who has appeared for the opposite party No. 2. 2. Both the learned counsels have contended that the dispute inter partes which had led to the registration of the case in question, has been compromised and that they are desirous of settling the entire matter. It however bears note that the allegations levelled against the applicant is of commission of offences under Sections 377, 504 and 506 I.P.C. read with Sections 3/4 of the POCSO Act. The allegations which evidence the commission of offences under Section 377 as well as the POCSO Act are evidenced from the statement of the victim recorded under Sections 161 read with 164 Cr.P.C. In the affidavit filed by the opposite party no. 2 there is no denial of the allegations levelled against the applicants. A mere bald assertion has been made that the parties have settled their disputes. 3. The issue as to whether allegations of rape can be quashed by the Court in exercise of its inherent powers was considered by the Supreme Court in Deepak Gulati Vs. State of Haryana. The observations made therein read thus: "20. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks." (emphasis supplied) 4. An act of sexual assault on a child is a crime not just against society but against humanity itself. It causes psychological and physical harm to the victim, leaving upon her indelible marks." (emphasis supplied) 4. An act of sexual assault on a child is a crime not just against society but against humanity itself. If ever an act evidences a mental depravity beyond reprieve, it is assaults of the character which stand covered by the provisions of POCSO. An act of sexual assault on a child, as in cases of rape, is not just an attack on the body of the victim but one which is likely to leave a permanent scar on his soul and psyche itself. Such acts result in a child not just undergoing an immediate trauma of unimaginable magnitude, it also has the inherent possibility of leaving an indelible and perpetual stigma upon the child quite apart from causing psychological damage beyond repair. If there be a chronicle of serious and heinous crimes, it would be impossible to exclude the commission of crimes against children from the same. This, for such crimes by their very nature have the effect of robbing innocence and snuffing out life itself. 5. The nature of the submissions advanced warrant the Court noticing the basic legislative objectives underlying the enactment of POCSO. The Statement of Objects and Reasons of the legislation reads thus:- "Prefatory Note--Statement of Objects and Reasons.--Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. 2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials. 3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. 3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the ''Study on Child Abuse: India 2007' conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the extant laws. A large number of such offences are neither specifically provided for nor are they adequately penalised. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence. 4. It is, therefore, proposed to enact a self-contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences. 5. The Bill would contribute to enforcement of the right of all children to safety, security and protection from sexual abuse and exploitation. 6. The notes on clauses explain in detail the various provisions contained in the Bill. 7. The Bill seeks to achieve the above objectives." (emphasis supplied) POCSO is a legislative measure which defines the avowed intent of Parliament to fight the menace of child exploitation, it takes note of the increase in crime against children and recognises the fact that existing statutory measures had been unable to cope with the same. It is a legislative measure aimed at preserving and protecting the constitutional promise comprised in Articles 15 and 39 as also the obligations of the country as flowing from the United Nations Convention on the Rights of Children. The issue which therefore falls for consideration is whether crimes covered by the said enactment would warrant quashing of proceedings solely on account of parties have arrived at a settlement amongst themselves. 6. The power of the Court conferred by section 482 Cr.P.C. is essentially a power to be exercised ex debito justitiae. While exercising this power, the Court is not fettered or bound by the provisions of section 320 of the Code. 6. The power of the Court conferred by section 482 Cr.P.C. is essentially a power to be exercised ex debito justitiae. While exercising this power, the Court is not fettered or bound by the provisions of section 320 of the Code. If the Court comes to the conclusion that the offence committed was essentially private in character as distinct from a crime against society and orderly conduct mandated by the laws, it would be justified in quashing criminal prosecution. The quashing of criminal prosecution is guided by considerations of bringing a closure to the dispute, end protracted and debilitating litigation, enable parties to close an unsavoury chapter in their lives and to enable them to move ahead. The continuance of criminal prosecution in such circumstances would not only be oppressive but also thwart the ends of justice. The Court apart from the above considerations also take into account the factor of the chances of conviction itself being rendered remote and bleak. It is upon an overall conspectus of the aforesaid considerations that the power to quash and close criminal prosecution is exercised. In a recent decision of the Supreme Court in J. Ramesh Kamath Vs. Mohana Kurup2 after noticing the body of precedent which has evolved on the subject, it was observed :- "13. Having placed reliance on the judgment in Madan Mohan Abbot case [Madan Mohan Abbotv. State of Punjab, (2008) 4 SCC 582 : (2008) 2 SCC (Cri) 464 : (2008) 3 KLT 19] which was determined by a two-Judge Division Bench of this Court, the learned counsel for Respondents 1 to 3 went on to place reliance on Gian Singh v. State of Punjab [Gian Singh v. State of Punjab, (2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] which was decided by a three-Judge Division Bench. Insofar as the instant judgment is concerned, the learned counsel for Respondents 1 to 3, in the first instance, invited this Court's attention to para 37 thereof, wherein the earlier decision rendered by this Court in Madan Mohan Abbot case[Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582 : (2008) 2 SCC (Cri) 464 : (2008) 3 KLT 19] was duly noticed. Thereupon, the Bench recorded its conclusion as under: (Gian Singh case [Gian Singh v. State of Punjab, (2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] , SCC pp. 341-43, paras 59-61) "59. B.S. Joshi [B.S. Joshi v. State of Haryana, (2003) 4 SCC 675 : 2003 SCC (Cri) 848], Nikhil Merchant [Nikhil Merchant v. CBI, (2008) 9 SCC 677 : (2008) 3 SCC (Cri) 858] , Manoj Sharma [Manoj Sharma v. State, (2008) 16 SCC 1 : (2010) 4 SCC (Cri) 145] and Shiji [Shiji v. Radhika, (2011) 10 SCC 705 : (2012) 1 SCC (Cri) 101] do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S. Joshi[B.S. Joshi v. State of Haryana, (2003) 4 SCC 675 : 2003 SCC (Cri) 848], Nikhil Merchant[Nikhil Merchant v. CBI, (2008) 9 SCC 677 : (2008) 3 SCC (Cri) 858] , Manoj Sharma [Manoj Sharma v. State, (2008) 16 SCC 1 : (2010) 4 SCC (Cri) 145] and Shiji [Shiji v. Radhika, (2011) 10 SCC 705 : (2012) 1 SCC (Cri) 101] this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment. 60. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment. 60. We find no incongruity in the above principle of law and the decisions of this Court in Simrikhia [Simrikhia v. Dolley Mukherjee, (1990) 2 SCC 437 : 1990 SCC (Cri) 327], Dharampal[Dharampal v. Ramshri, (1993) 1 SCC 435 : 1993 SCC (Cri) 333] , Arun Shankar Shukla [Arun Shankar Shukla v. State of U.P., (1999) 6 SCC 146 : 1999 SCC (Cri) 1076], Ishwar Singh[Ishwar Singh v. State of M.P., (2008) 15 SCC 667 : (2009) 3 SCC (Cri) 1153], Rumi Dhar[Rumi Dhar v. State of W.B., (2009) 6 SCC 364 : (2009) 2 SCC (Cri) 1074] and Ashok Sadarangani [Ashok Sadarangani v. Union of India, (2012) 11 SCC 321 : (2013) 1 SCC (Civ) 298 : (2013) 1 SCC (Cri) 638] . The principle propounded in Simrikhia [Simrikhia v. Dolley Mukherjee, (1990) 2 SCC 437 : 1990 SCC (Cri) 327] that the inherent jurisdiction of the High Court cannot be invoked to override express bar provided in law is by now well settled. In Dharampal [Dharampal v. Ramshri, (1993) 1 SCC 435 : 1993 SCC (Cri) 333] the Court observed the same thing that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Similar statement of law is made in Arun Shankar Shukla [Arun Shankar Shukla v. State of U.P., (1999) 6 SCC 146 : 1999 SCC (Cri) 1076] . In Ishwar Singh [Ishwar Singh v. State of M.P., (2008) 15 SCC 667 : (2009) 3 SCC (Cri) 1153] the accused was alleged to have committed an offence punishable under Section 307 IPC and with reference to Section 320 of the Code, it was held that the offence punishable under Section 307 IPC was not compoundable offence and there was express bar in Section 320 that no offence shall be compounded if it is not compoundable under the Code. In Rumi Dhar [Rumi Dhar v. State of W.B., (2009) 6 SCC 364 : (2009) 2 SCC (Cri) 1074] although the accused had paid the entire due amount as per the settlement with the bank in the matter of recovery before the Debts Recovery Tribunal, the accused was being proceeded with for the commission of the offences under Sections 120-B/420/467/468/471 IPC along with the bank officers who were being prosecuted under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. The Court refused to quash the charge against the accused by holding that the Court would not quash a case involving a crime against the society when a prima facie case has been made out against the accused for framing the charge. Ashok Sadarangani [Ashok Sadarangani v. Union of India, (2012) 11 SCC 321 : (2013) 1 SCC (Civ) 298 : (2013) 1 SCC (Cri) 638] was again a case where the accused persons were charged of having committed the offences under Sections 120-B, 465, 467, 468 and 471 IPC and the allegations were that the accused secured the credit facilities by submitting forged property documents as collaterals and utilised such facilities in a dishonest and fraudulent manner by opening letters of credit in respect of foreign supplies of goods, without actually bringing any goods but inducing the bank to negotiate the letters of credit in favour of foreign suppliers and also by misusing the cash credit facility. The Court was alive to the reference made in one of the present matters and also the decisions in B.S. Joshi [B.S. Joshi v. State of Haryana, (2003) 4 SCC 675 : 2003 SCC (Cri) 848], Nikhil Merchant [Nikhil Merchant v. CBI, (2008) 9 SCC 677 : (2008) 3 SCC (Cri) 858] and Manoj Sharma [Manoj Sharma v. State, (2008) 16 SCC 1 : (2010) 4 SCC (Cri) 145] and it was held that B.S. Joshi [B.S. Joshi v. State of Haryana, (2003) 4 SCC 675 : 2003 SCC (Cri) 848] and Nikhil Merchant [Nikhil Merchant v. CBI, (2008) 9 SCC 677 : (2008) 3 SCC (Cri) 858] dealt with different factual situation as the dispute involved had overtures of a civil dispute but the case under consideration in Ashok Sadarangani [Ashok Sadarangani v. Union of India, (2012) 11 SCC 321 : (2013) 1 SCC (Civ) 298 : (2013) 1 SCC (Cri) 638] was more on the criminal intent than on a civil aspect. The decision in Ashok Sadarangani [Ashok Sadarangani v. Union of India, (2012) 11 SCC 321 : (2013) 1 SCC (Civ) 298 : (2013) 1 SCC (Cri) 638] supports the view that the criminal matters involving overtures of a civil dispute stand on a different footing. 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 FIR may be exercised where the offender and the 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. 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 the offender in relation to the offences under special statutes like the 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 predominatingly civil flavour stand on a 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, the High Court may quash criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." (emphasis supplied) 14. A perusal of the above determination leaves no room for any doubt that this Court crystallised the position in respect of the powers vested in the High Court under Section 482 of the Criminal Procedure Code, to quash criminal proceedings. A perusal of the above determination leaves no room for any doubt that this Court crystallised the position in respect of the powers vested in the High Court under Section 482 of the Criminal Procedure Code, to quash criminal proceedings. It has now been decisively held that the power vested in the High Court under Section 482 of the Criminal Procedure Code is not limited to quashing proceedings within the ambit and scope of Section 320 of the Criminal Procedure Code. The three-Judge Division Bench [Gian Singh v. State of Punjab, (2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] in the above case clearly expounded that quashing of criminal proceedings under Section 482 of the Criminal Procedure Code could also be based on settlements between private parties and could also on a compromise between the offender and the victim. Only that, the above power did not extend to crimes against the society. It is also relevant to mention that the jurisdiction vested in the High Court under Section 482 of the Criminal Procedure Code for quashing criminal proceedings was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particularly offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions. Or even offences arising out of matrimony relating to dowry, etc. Or family disputes where the wrong is basically private or personal. In all such cases, the parties should have resolved their entire dispute by themselves, mutually." 7. The allegations levelled against the applicant clearly fall within the genre of heinous and serious crime. The commission of this crime is further evidenced from the application of the provisions of the POCSO Act where according to the allegations he is stated to have assaulted and sexually abused a minor. No submission has been made before this Court that the offence under POCSO Act or under Section 377 is not evidenced or made out in light of the nature of the acts which are alleged to have been committed by the applicant. To the contrary and as noted above, there is not even a denial in the affidavit that the crime was committed. The Court finds itself unable to condone or disregard the conduct of which the applicants stand charged. To the contrary and as noted above, there is not even a denial in the affidavit that the crime was committed. The Court finds itself unable to condone or disregard the conduct of which the applicants stand charged. The allegations and the material as it exists at this stage clearly evidences the commission of a heinous crime- a crime which shakes our very basic conscience itself. Such acts, bearing in mind the fact that their impact is of an enduring character, cannot be condoned. In the above background, the Court is unable to hold that the quashing of proceedings would subserve the ends of justice. 8. The application is consequently dismissed.