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2017 DIGILAW 36 (SIK)

Mithun Sah, S/o Ramakanth Sah v. State of Sikkim

2017-06-20

SATISH K.AGNIHOTRI

body2017
ORDER : Satish K. Agnihotri, J The instant petition is filed under Section 482 of the Code of Criminal Procedure, 1973, (hereinafter referred to as “Cr. P.C.”) seeking to quash the FIR No. 46 of 2015 and also the pending trial in GR Case No. 330 of 2016 (State of Sikkim vs. Mithun Sah) on the file of the Court of Chief Judicial Magistrate, East and North Sikkim at Gangtok. 2. The genesis of this petition is that on the basis of a complaint lodged by the second petitioner, who happens to be the mother of the third petitioner, the FIR was registered as FIR No. 46 of 2015 dated 26th September, 2015. On investigation, charge-sheet was filed. Thereafter, General Registration case, being GR Case No. 330 of 2016, against the first petitioner (accused) for an offence committed under Sections 354D, 451 and 506 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), was registered for trial. 3. The facts, as narrated by the second petitioner in the complaint, were that she received a phone call on 18th September, 2015 from the first petitioner informing that the first petitioner knew the third petitioner, as they were studying together in Buddha Institute of Dental & Medical Science in Patna. It was further informed that the first petitioner had intimate relationship with the third petitioner. In the process, he had certain photographs of compromising position. The second petitioner, not believing such information, sought confirmation from her daughter, namely, third petitioner herein. The third petitioner clearly stated that she met the first petitioner three years ago in Gangtok and thereafter, they were intimate friends. However, she was not sure as to whether the first petitioner had obtained certain obscene photographs of her. On registration of FIR, the investigation was conducted and also statement of first petitioner was recorded. The first petitioner stated in his deposition that he had shown the obscene or objectionable photographs of the third petitioner to her mother, the second petitioner and he was advised by her to delete the photographs from the computer and mobile phone, which he had done. 4. The first petitioner stated in his deposition that he had shown the obscene or objectionable photographs of the third petitioner to her mother, the second petitioner and he was advised by her to delete the photographs from the computer and mobile phone, which he had done. 4. After investigation a challan against the first petitioner under provisions of Sections 448/354/354A/506/200 of the IPC was filed, which was registered as GR Case No. 330 of 2016 against the first petitioner under provisions of Sections 354D, 451 and 506 IPC on the file of the Court of Chief Judicial Magistrate, East and North Sikkim at Gangtok. During pendency of the trial, it appears, that an agreement was reached between the parties, thus, this petition is filed jointly by the accused, complainant and the victim, seeking quashment of the FIR as well as the trial pending therein. 5. Mr. Zangpo Sherpa, learned counsel appearing for the petitioners, would submit that a compromise deed has been executed between the parties, wherein the dispute has been settled amicably. The second and third petitioners do not want to prosecute the matter against the first petitioner and are interested to withdraw the case. It is further submitted that both the first petitioner and third petitioner are young students, the third petitioner has been engaged for marriage and pendency of trial may harm the family prospects in future. Thus, the first petitioner and third petitioner are not keen to give an undue publicity, particularly, when the first petitioner has undertaken not to misuse the photographs and to destroy the same. It is further submitted that in the interest of family welfare and peace in the society, the pending trial be quashed. 6. Mr. Karma Thinlay, learned Addl. Public Prosecutor, submits that in the interest of settlement and peace in the future life of the third petitioner as well as the first petitioner, the trial may be quashed. 7. During pendency of this petition, the first petitioner has filed one more affidavit dated 19th June, 2017, stating clearly that he is not in possession of any photographs of the third petitioner. All the photographs stored in his mobile phone and computer (Laptop) have already been seized by the police and he does not have any negative of the photographs. However, if it is discovered subsequently, the same will be handed over to the second and third petitioners. All the photographs stored in his mobile phone and computer (Laptop) have already been seized by the police and he does not have any negative of the photographs. However, if it is discovered subsequently, the same will be handed over to the second and third petitioners. In the event, the first petitioner is found in breach of any conditions of the undertaking, the police and other authorities may take any action against him. The first petitioner has also paid a sum of Rs.50,000/- (Rupees Fifty Thousand) as compensation to the third petitioner. 8. In such view of the matter, the police is directed to destroy the relevant computer and mobile phone, which allegedly contain the objectionable obscene photographs of the third petitioner and also along with the first petitioner. 9. Having examined the case from all angles, the Court is of the view that the instant case requires consideration for exercising extraordinary discretionary jurisdiction under Section 482 of the Cr. P.C. 10. For the alleged offence committed by the first petitioner, wherein the authenticity of the FIR was not questioned by him, the first petitioner has strong remorse for the same. The punishment in criminal trial is reformative as well as retributive. The accused, the complainant and the victim have come up jointly to give a burial to the case which it appears to have been committed in college days. The deep sorrow felt by the first petitioner would give him an occasion to reform himself in future and also good peaceful life to the third petitioner, who is going to begin her new phase of marital life, as it is informed that she has been engaged to some other suitable boy, the Court is obligated to consider all the facts, while examining the case for exercising discretionary jurisdiction to quash the criminal proceedings under Section 482 of the Cr. P.C. 11. In the case of Manoj Sharma vs. State & Ors, (2008) 16 SCC 1 , wherein the question involved was as to whether a first information report under Sections 420/468/471/34/120-B IPC deserves to be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the matter between themselves. The Supreme Court speaking through Hon’ble Mr. Justice Altamas Kabir (as he then was), observed as under: “8. The Supreme Court speaking through Hon’ble Mr. Justice Altamas Kabir (as he then was), observed as under: “8. In our view, the High Court’s refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The first information report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the first information report was the basis of the investigation by the police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the first information report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case.” Concurring, Hon’ble Mr. Justice Markandey Katju (as he then was) observed as under: “27. There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304-B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 CrPC or in writ jurisdiction on the basis of compromise. However, in some other cases (like those akin to a civil nature), the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. …………………” 12. In yet another case, Sushil Suri vs. Central Bureau of Investigation & Anr., (2011) 5 SCC 708 , while examining the scope, ambit and extent of Section 482 of the Code, the Supreme Court held as under:- “16. Section 482 CrPC itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely, (i) to give effect to an order under CrPC; (ii) to prevent an abuse of the process of court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provisions is very wide but it is not unbridled. It is trite that although the power possessed by the High Court under the said provisions is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Yet, in numerous cases, this Court has laid down certain broad principles which may be borne in mind while exercising jurisdictionunder Section 482 CrPC. Though it is emphasized that exercise of inherent powers would depend on the facts and circumstances of each case, but the common thread which runs through all the decisions on the subject is that the Court would be justified in invoking its inherent jurisdiction where the allegations made in the complaint or charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged.” 13. In Yogendra Yadav and others vs. State of Jharkhand and another, (2014) 9 SCC 653 , wherein the accused was charge-sheeted for an offence committed, inter alia, under Section 307 IPC, which is non-compoundable, the Supreme Court held as under: “4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 IPC which are non-compoundable? Needless to say that offences which are non-compoundable cannot be compoundable by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab : (2012) 10 SCC 303 ). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve more turpitude, grave offences like rape, murder, etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. Offences which involve more turpitude, grave offences like rape, murder, etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace.” 14. Applying the well settled principles of law asto the exercise of extraordinary discretionary jurisdiction by the High Court to quash the FIR and criminal trial to maintain peace and harmony in the family as well as in the society to the facts of the case, the first and third petitioners were students when the alleged offence was committed by the first petitioner, realizing his mistake, the first petitioner has surrendered all the photographs loaded in the computer and in mobile phone; the concerned computer as well as the mobile phone is in the custody of police; the first petitioner has also paid the compensation; I am of the considered view that to protect the future family life of the third petitioner and also the first petitioner, the petition deserves to be allowed. 15. Resultantly, FIR bearing No. 46 of 2015 dated 26th September, 2015 and the consequential proceedings in GR Case No. 330 of 2016 (State of Sikkim vs. Mithun Sah) pending on the file of the Court of Chief Judicial Magistrate, East and North at Gangtok, are quashed. 16. Petition is allowed.