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2019 DIGILAW 1211 (GAU)

Nchungo Humtsoe v. State of Nagaland

2019-11-08

MANISH CHOUDHURY

body2019
JUDGMENT : Manish Choudhury, J. 1. Heard Ms. Mhechiete, learned counsel for the petitioner. Also heard Mr. Kevi Angami, learned Public Prosecutor for the State respondents and Mr. Edward, learned counsel appearing for respondent Nos. 2 and 3. 2. This petition under Section 482, Code of Criminal Procedure, 1973 (Cr.P.C.) is preferred for quashing and setting aside of the First Information Report(FIR) dated 5.6.2019 registered as Women Police Station, Kohima Case No. 7/19 and also the proceedings of G.R. Case No. 50/2019, presently pending before the Court of learned Chief Judicial Magistrate, Kohima, Nagaland. 3. The facts leading to the institution of the present petition be summarized as under:- On 05.06.2019, the respondent No. 3 lodged an FIR before the Officer In-charge, South Police Station, Kohima, alleging, inter-alia, that at about 2.00 p.m. on that day, the petitioner was caught red handed at Old Minister' Hill area, near BSNL Office when the petitioner had allegedly tried to molest and harass the respondent No. 2. The South Police Station, Kohima after receipt of the FIR as General Diary Entry No. 13/2019, had redirected the FIR to the Officer-In-Charge, Women Police Station, Kohima for appropriate action and on receipt of the said FIR, the case being Women Police Station, Kohima Case No. 7/2019 (corresponding G.R. Case No. 50/2019) was registered under Section 354, Indian Penal Code (IPC). Pursuant to registration of the case (Corresponding to G.R. Case No. 50/2019), the petitioner was arrested and sent to judicial custody in the Central Jail, Kohima. Since his arrest, the petitioner is in custody till date. 4. It is stated by the petitioner that on 21.06.2019, a compromise note was entered on behalf of the petitioner and the respondent No. 2 through the approach of relatives and friends of both the sides and the same was also witnessed by the respondent No. 3. In the sad compromise note, the petitioner had tendered and pardoned the petitioner on humanitarian ground and in good faith. The said compromise note was also witnessed by several other persons in the Panchayat. Thereafter, a compromise deed was also entered on behalf of the petitioner and the respondent No. 2 on 12.09.2019 with the efforts of relatives and friends of both the sides. The said compromise note was also witnessed by several other persons in the Panchayat. Thereafter, a compromise deed was also entered on behalf of the petitioner and the respondent No. 2 on 12.09.2019 with the efforts of relatives and friends of both the sides. As the petitioner had tendered unqualified apology, the respondent No. 2 had stated to have no objection if the FIR of Women Police Station, Kohima Case No. 7/2019 and the proceedings of corresponding G.R. Case 50/2019 arising there from, are set aside and quashed. The said compromise deed was also witnessed by the respondent No. 3. 5. In the meantime, the Investigating Officer (I.O.) of Women Police Station, Kohima Case No. 7/2019 after completion of investigation, had submitted a charge-sheet being Charge-Sheet No. 10/2019 dated 18.8.2019. The said charge-sheet has been submitted by the I.O. finding a prima facie case, on the basis of his investigation, under Section 354A(2), IPC against the petitioner. In the aforesaid backdrop, this petition is filed seeking quashing of the FIR dated 05.06.2019 lodged in connection with Women Police Station, Kohima Case No. 7/2019 and the proceedings of G.R. Case No. 50/2019, arising out of Women Police Station, Kohima Case No. 7/2019 and presently pending in the Court of learned Chief Judicial Magistrate, Kohima. 6. Section 354 A, IPC is in respect of sexual harassment and punishment for sexual harassment. Under sub-section (1) of Section 354A, a man committing any of the acts like (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; (iv) making sexually coloured remarks, shall be guilty of the offences of sexual harassment. Sub-section (2) of Section 354A has provided for the punishment for commission of the offence of sexual harassment. The offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) is punishable with rigorous imprisonment for a term which may-extend to three years, or with a fine, or with both. Any man committing the offence specified in clause (iv) is punishable with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 7. Any man committing the offence specified in clause (iv) is punishable with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 7. A perusal of the charge-sheet, submitted on 18.08.2019, indicates that at the time of the incident while the respondent No. 2 was on her way to the shop the petitioner suddenly came from behind and grabbed her left arm and started asking her questions. On being so disturbed, the respondent No. 2 shouted and called for help as she found the action of the petitioner embarrassing. The petitioner and the respondent No. 2 were unknown to each other prior to the incident. It was in such situation, the I.O. along with some other materials collected during the course of investigation, had submitted the charge-sheet. Thus, it is evident that the allegation against the petitioner is about making physical contact and advance to the respondent No. 2 which was found unwelcome by her. 8. As has been mentioned above, both the sides have arrived at a settlement by executing a compromise note on 21.06.2019 and a compromise deed on 12.07.2019 prior to the submission of the charge-sheet on 18.8.2019. The learned counsel for the petitioner and the respondent Nos. 2 and 3 have, in unison, submitted that even if the proceedings of G.R. Case No. 50/2019 is made to continue, no useful purpose will be served as the prime witnesses viz. the respondent Nos. 2 and 3 have already made a settlement with the petitioner condoning his act alleged to have been committed by him on 05.06.2019 and there is absolutely no possibility of ending the case i.e. G.R. Case No. 50/2019 in conviction of the petitioner. The continuance of the proceeding of G.R. Case No. 50/2019 will ultimately result in prolonging the agonies of both the petitioner as well as respondent No. 2 and would take the colour of harassment. In such view of the matter, it is in the best interests for all the parties, the FIR in Women Police Station, Kohima Case No. 7/2019; the Charge-Sheet No. 10/2019 dated 18.08.2019 submitted in connection with Women Police Station Case, Kohima Case No. 7/2019 (GR. Case No, 50/2019), and the proceeding of G.R. Case No. 50/2019 arising therefrom, presently pending before the learned Chief Judicial Magistrate, Kohima are required to be quashed and set aside. 9. Mr. Case No, 50/2019), and the proceeding of G.R. Case No. 50/2019 arising therefrom, presently pending before the learned Chief Judicial Magistrate, Kohima are required to be quashed and set aside. 9. Mr. Kevi Angami, learned Public Prosecutor has no objection if the prayer made on behalf of the petitioner is allowed as both the respondent Nos. 2 and 3 have filled their respective affidavits categorically stating about their no objection, endorsing about the matter of arrival of settlement by both the parties. 10. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record. 11. The facts leading to the institution of this petition under Section 482, Cr.P.C. seeking invocation of the inherent powers have already been delineated above. The question that now has arisen in whether in the above facts and circumstances, the invocation of the inherent powers under Section 482, Cr.P.C. is called for. In this connection, it is apposite to refer to the observations made by the Hon'ble Supreme Court in the case of Gold Quest International Private Limited Vs. State of Tamil Nadu & Ors., reported in (2014) 15 SCC 235 , wherein the Hon'ble Supreme Court has also referred to a 3-Judges Bench decision in Gian Singh Vs. State of Punjab & Anr., reported in (2012) 10 SCC 303 , wherein the Hon'ble Supreme Court have observed as under:- "7. In Gian Singh Vs. State of Punjab, judgments in B.S. Joshi and Nikhil Merchant were considered by a three-Judge Bench of this Court and it has found that the view taken in the aforesaid two cases by this Court is correct. Relevant paragraphs of the judgment in Gian Singh read as follows: 57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a Court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a Court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a Criminal Court is circumscribed by the provisions contained in Section 320 and the Court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. 59. B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji @ Pappu do illustrate the principle that 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, Nikhil Merchant, Manoj Sharma and Shiji @ Pappu, 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 ultimate consequence may be same viz., acquittal of the accused or dismissal of indictment. 61. 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. 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 victim have settled then-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. But the criminal cases having overwhelmingly and pre-dominatingly civil flavor 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 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 compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of 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 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 proceedings." 12. Irrespective of the fact that the offence is compoundable or not under Section 320, Cr.P.C., the quashing of a criminal case by the High Court in exercise of inherent powers under Section 482, Cr.P.C. is not limited by the provisions of Section 320, Cr.P.C. The inherent powers which do not have any statutory limitation, can be exercise if the same is required to be exercised to secure the ends of justice and or to prevent the abuse of the process of any Court, more particularly, when the offender and the victim have settled their dispute by coming to a settlement with the victim pardoning the act of the offender. There is a note of caution, however, to the effect that before exercising such power, the nature and gravity of the crime has to be considered in the factual background of each case and keeping in consideration the principles highlighted above. 13. Having regard the criminal facets involved in the instant case, where the parties having entered into a settlement and there being no chance of any conviction with the respondent No. 2 expressing her no objection, I find this to be a fit case to exercise the power under Section 482, Cr.P.C. to set aside and quash the FIR of the Women Police Station, Kohima Case No. 7/2019, the Charge-Sheet No. 10/2019 dated 18.08.2019 filed in connection with Women Public Station, Kohima Case No. 7/2019 and the proceedings of G.R. Case No. 50/2019, arising there from, presently pending in the Court of Chief Judicial Magistrate, Kohima, for the ends of justice. Accordingly, the same are set aside and quashed. 14. It is stated at the bar that since his arrest on 05.06.2019, the petitioner is in custody. Accordingly, the same are set aside and quashed. 14. It is stated at the bar that since his arrest on 05.06.2019, the petitioner is in custody. In view of passing of this order, it is ordered that the petitioner be set at liberty forthwith, if he is not required in connection with any other case. With the aforesaid observation and directions, this criminal petition stands allowed.