Research › Search › Judgment

Karnataka High Court · body

2018 DIGILAW 710 (KAR)

Ramanand Pattath v. State of Karnataka

2018-06-18

K.N.PHANEENDRA

body2018
ORDER : K.N. PHANEENDRA, J. 1. The petitioner has approached this court seeking quashing of the Special CC No. 194/2015 on the file of the II Addl. District and Sessions Judge, Bengaluru Rural District, registered against the petitioner for the offence punishable under Section 376 of IPC and also u/s. 6, 8, 10 & 12 of Protection of Children from Sexual Offence Act [hereinafter referred to as "POCSO Act" for short]. 2. During the pendency of this petition, the petitioner and the second respondent who is no other than the mother of the victim girl and also the wife of the petitioner have filed a compromise petition before this court submitting that the matter has been compromised between themselves. The parties have also filed their detailed affidavit before this Court seeking permission to compromise the matter and also seeking quashing of this petition. 3. Before adverting to the contents of the compromise petition entered into between the parties and their statement in the affidavit, it is just and necessary to have the brief factual matrix of this case: The second respondent herein who is the wife of the petitioner and no other than the mother of two victim children i.e., the daughters of the petitioner and the respondent No. 2, has lodged an FIR before the respondent No. 1 police making serious allegations against her husband stating that her husband has been ill-treating and harassing sexually the twin daughters who are aged about 5 1/2 years. It is stated that since 2014 after their marriage, the complainant has found some indifferent attitude in the conduct of her daughters and therefore, she meticulously examined and ascertained from them, then she came to know that the petitioner had been sexually harassing the said children by touching their private parts and also kissing the children etc., Quoting various instances the wife has filed such complaint and in fact after thorough investigation, the police have submitted the charge sheet before the competent court and the same has been culminated in Special CC No. 194/2015. 4. After the charge sheet being filed and for the present, it appears, both the husband and wife have also decided to separate themselves. They have also filed Joint Petition for divorce in MC No. 1697/2018 before the Family Court, Bengaluru. 5. 4. After the charge sheet being filed and for the present, it appears, both the husband and wife have also decided to separate themselves. They have also filed Joint Petition for divorce in MC No. 1697/2018 before the Family Court, Bengaluru. 5. In the above said facts and circumstances, the second respondent has come forward to compromise the matter with the husband for the better interest of the children, they have decided to live separately. Husband has also specifically given up all his rights over the children including the guardianship as well as visitation rights and also he has undertaken to provide a house as well as sufficient amount for the future development of the children. 6. In fact, the petitioner has denied all the allegations made against him. 7. The learned counsel for the petitioner during the course of these proceedings has also produced certain additional documents i.e., the report of the Assistant Professor, Department of Child and Psychiatry, NIMHANS, Bengaluru. The documents produced before the court disclose that during the course of investigation, the Investigating Officer vide his letter dated 26.10.2015 has called for the report from the NIMHANS with regard to the examination of the children earlier on 10.6.2014 and 21.6.2014 when children were produced by the mother of the children for examination of the children before the NIMHANS Hospital. 8. In response to the same on 29.10.2015, the Assistant Professor, Department of Child and Adolescent Psychiatry, NIMHANS, Bengaluru, has reported that on assessment of the children, the doctor found that both the children have normal developmental milestones and did not have any obvious behavioral or emotional problems. Further, during the assessment using play therapy, the children have not voluntarily reported about any alleged sexual abuse incidents by their father. 9. Even the letter dated 27.7.2015 written by a lady by name Meenakshi Yaragatti, Executive of SJPU, which is the branch of Police, she also in fact examined the children and she has reported that the children have not made any allegations against their father. 10. Looking into the above said facts and circumstances of the case, though serious and heinous offence have been alleged against the petitioner, the misconception on the part of the mother of the children, under the above said doubtful circumstance, in my opinion, it cannot be ruled out. 10. Looking into the above said facts and circumstances of the case, though serious and heinous offence have been alleged against the petitioner, the misconception on the part of the mother of the children, under the above said doubtful circumstance, in my opinion, it cannot be ruled out. Therefore, if the compromise petition between the parties is beneficial not only to the petitioner and the second respondent, but also if it is more beneficial to the children, in such an eventuality, for the better interest and benefit of the children, the compromise petition can be accepted by the court. 11. In this context, it is worth to refer some rulings of the Hon'ble Apex Court in a decision rendered in Gian Singh v. State of Punjab and Another reported in [ (2012) 10 SCC 303 ], wherein the Apex Court has held thus:- "Power of High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from power of a criminal court of compounding offences under S. 320 - Cases where power to quash criminal proceedings may be exercised where the parties have settled their dispute, held, depends on facts and circumstances of each case - Before exercise of inherent quashment power under S. 482, High Court must have due regard to nature and gravity of the crime and its societal impact." 12. This Court in Criminal Petition No. 3269/2017 disposed of on 12.12.2017 has elaborately discussed as to under what circumstances, the court can exercise power u/s. 482 of Cr.P.C., to put an end to the dispute between the parties. Particularly referring to POCSO Act, this Court has considered the dispute between the parties particularly when the offences are punishable u/s. 376 of IPC as well as under POCSO Act, this Court has made an observation that the power conferred u/s. 482 of the Code is to be distinguished from the power which lies in the court to compound the offence u/s. 320 of the Code. No doubt u/s. 482 of the Code, the High Court has pecuniary inherent power to quash the criminal proceedings even in those cases, which are not compoundable, where the parties have settled the matter between themselves. 13. No doubt u/s. 482 of the Code, the High Court has pecuniary inherent power to quash the criminal proceedings even in those cases, which are not compoundable, where the parties have settled the matter between themselves. 13. In another decision of the Hon'ble Apex Court reported in (2014) 6 SCC 466 between Narinder Singh and Others v. State of Punjab and another, this court has considered that the offence though u/s. 307 of IPC, falls within the category of serious and heinous offence and generally treated as crime against society, since power of quashing is taken away, the court has to examine the facts and circumstances of each case and on detailed meticulous circumspection to be made by the court where the particular case on fact is liable to be quashed on the basis of the compromise entered into between the parties, the court can exercise its extraordinary jurisdiction to quash such proceedings. 14. In another decision, which is reported in (2018) 3 SCC 290 between Anitha Maria Dias v. State of Maharashtra, wherein the Hon'ble Apex Court has made an observation at para 7, quoting the observations made at para Nos. 29.5 and 29.6 in the case of Narinder Singh, cited supra. The sum and substance of the observation made by the Hon'ble Apex Court is that: "29.5. 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. 29.6. Offences u/s. 307 of IPC would fall in the category of heinous and serious offences and therefore, are 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 of IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge u/s. 307 of IPC. However, the High Court would not rest its decision merely because there is a mention of Section 307 of IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge u/s. 307 of 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 such circumstances, the court would not rest its decision merely because there is a mention of such serious offence in the FIR or in the charge sheet filed by the Police. It would be open to the High Court to go by the nature of allegations made whether such an allegations on the face of record, can be taken as true or false, whether there are any other circumstances which shows that those allegations may be due to misconception. Under such circumstances also, the court can exercise power to quash the proceedings. 15. In the above said background, as per the guidelines of the Hon'ble Apex Court, if the same are applied to the facts and circumstances of this case, it is a doubtful circumstance, whether such things have happened actually in view of the doctors report as noted above. On perusal of the charge sheet, it is the document which is issued by the NIMHANS doctor, who is having authentication with regard to the factual aspects of this case. The respondent No. 2 has also not denied the aspect of taking the children to the NIMHANS hospital for examination of the children by the said doctor. On perusal of the charge sheet, it is the document which is issued by the NIMHANS doctor, who is having authentication with regard to the factual aspects of this case. The respondent No. 2 has also not denied the aspect of taking the children to the NIMHANS hospital for examination of the children by the said doctor. Under the above said facts and circumstances of the case, it is clear that there may be due to some strong dispute between the husband and wife, may be due to mis-conception the allegations have been made, but this is not a conclusive observation made, but based on the above said facts and circumstances of the case, I am of the opinion that the compromise between the parties is beneficial not only to themselves, but also to the small children, then such compromise can be accepted, even though the allegations made against the petitioner is serious and heinous and it will have some impact on the society. Now, let me go through the affidavits filed by the parties i.e., both petitioner and respondent No. 2. The affidavits filed by them giving undertaking for the benefit and welfare of the minor two children. The husband has categorically admitted that he is paying an amount of Rs. 60,00,000/- by way of Demand Drafts to respondent No. 2 as full and final settlement. Out of that, an amount of Rs. 20 lakhs each to the daughters which shall be deposited in any of the Nationalised Bank by way of Fixed Deposit, till the children attain majority. The petitioner has also accepted that respondent No. 2 shall have the right to utilize the interest accrued on the Fixed Deposit. However, an amount of Rs. 40 lakhs shall continue till the children attain the age of majority. The petitioner state that his mother owned a Flat No. 306, Block-B, 3rd Floor of the apartment complex known as DSR Greenfields Nadagondanahalli K.R. Puram Hobli, Bengaluru. The petitioner further states that he and his brother are the only legal heirs of their mother who expired on 22.11.2016. 40 lakhs shall continue till the children attain the age of majority. The petitioner state that his mother owned a Flat No. 306, Block-B, 3rd Floor of the apartment complex known as DSR Greenfields Nadagondanahalli K.R. Puram Hobli, Bengaluru. The petitioner further states that he and his brother are the only legal heirs of their mother who expired on 22.11.2016. He has stated that he will execute the gift deed of the said property in the name of his wife after getting the release deed from his brother who has agreed to execute the same and further he has agreed to handover all the original documents of the said property at the time of execution of the gift deed. Today before this court, the petitioner has made payment of Rs. 60 lakhs by way of 3 demand draft Nos. (1) 549473; (2) 549472; and (3) 549470 dated 6.6.2018 of Federal Bank of Bangalore Vignana N. (1629) for Rs. 20 lakhs each. Also, the petitioner has handed over the keys of the house noted above. The respondent No. 2 who is present before the court acknowledges the receipt of three Demand Drafts as well as keys of the house. Further, the petitioner undertakes that within a short span of time, he would execute a registered gift deed. Further, the petitioner has agreed that the second respondent shall continue as guardian of the children and that he has no visitation rights so far as the children are concerned. Apart from the above, the affidavit filed by the parties clearly discloses that the parties have resolved the entire conflict between themselves and dispute also therein in order to provide a new life to the petitioner as well as the second respondent and to the children and to facilitate them to have their future life to live happily, I am of the considered opinion that as this is a very rarest of rare case, the court has to record the compromise between the parties. With the aforesaid observation, I pass the following: ORDER The Petition is allowed. Consequently, the Compromise Petition and the affidavits filed by the respective parties i.e., the petitioner and second respondent are hereby accepted. The parties are permitted to compound the offences alleged against the petitioner herein. The entire proceedings in Spl.CC No. 194/2015 on the file of the II Addl. Consequently, the Compromise Petition and the affidavits filed by the respective parties i.e., the petitioner and second respondent are hereby accepted. The parties are permitted to compound the offences alleged against the petitioner herein. The entire proceedings in Spl.CC No. 194/2015 on the file of the II Addl. District and Sessions Judge, Bangalore Rural District for the offence punishable under section 376 of IPC and Sections 6, 8, 10, 12 of POCSO Act, are hereby quashed so are as the petitioner is concerned.