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2019 DIGILAW 198 (GAU)

Darog Ali v. State of Assam

2019-02-13

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. S.C. Biswas, learned counsel for the petitioner as well learned Addl. PP Mr. B.J. Dutta for the State/respondent No. 1. 2. The petitioner Darog Ali who has been arrayed as an accused in Chapar PS Case No. 65/16 u/s. 376 of IPC has prayed for quashing of the FIR and the further proceeding pertaining to the said case on the ground that the FIR has been filed due to misunderstanding and the matter has also been amicably settled between the parties after filing of the said FIR. It is also another ground that there was delay in filing the FIR, which is also doubtful apart from having no medical document etc. 3. I have heard the submission of learned counsel for the petitioner as well learned Addl. PP, Assam and also perused the document annexed. 4. So far as the FIR is concerned, it was filed by the respondent No. 2/Monwara Khatun, where she has fully implicated the present petitioner with the offence alleged, of course, there was a few days delay in filing the FIR. The petitioner herein has also filed a document vide annexure-2 about the settlement between the parties arrived at 02.03.2016 and thereafter an affidavit has also been sworn by the respondent No. 2/informant vide annexure-3 that she has filed the case in a compelling circumstances as the accused is an elder cousin brother of her husband with whom they have a long run land dispute and the fact that she has settled the matter amicably. 5. The respondent No. 2 has filed an affidavit supporting the contention of settlement as stated by the petitioner, in this case. 6. The learned counsel for the petitioner has submitted that as the offence is non-compoundable but they have settled the matter as such they have approached this Court for quashing of the FIR and the proceeding in view of such settlement between the parties. Today, none appears for the respondent No. 2 although name of the counsel is shown in the cause list. 7. Learned Addl. PP Mr. Today, none appears for the respondent No. 2 although name of the counsel is shown in the cause list. 7. Learned Addl. PP Mr. Dutta has opposed the prayer of the petitioner and submits that in view of the nature of the offence and the factual background including the seriousness of the allegation, the petitioner is not entitled to the relief of quashing the FIR merely because he has entered into a settlement with the informant. Reliance has been placed to the decision of Prabatbhai Aahir Vs. State of Gujarat & Anr. (2017) 9 SCC 641 . 8. The prayer made by the petitioner invoking the jurisdiction of this Court as provided u/s. 482 of Cr.P.C. is now to be considered. The provision is intended to prevent abuse of process of Court or otherwise to secure the ends of justice. The Hon'ble Apex Court in Bhajan Lal Vs. State of Haryana AIR 1992 SC 604 , Gian Singh Vs. State of Punjab & Anr. (2012) 10 SCC 303 , Narinder Singh Vs. State of Punjab & Anr. (2014) 6 SCC 466 and the recent judgment rendered in Prabatbhai Aahir Vs. State of Gujarat & Anr. (2017) 9 SCC 641 has issued necessary guidelines as to under what circumstances High Court can invoke such provision. Although, it has been held that High Court can exercise such power on the basis of settlement arrived between the parties but it has been categorically held that serious offence like Dacoity, rape, murder and any other offences relates to serious offence, the provision of inherent power cannot be invoked on the basis of such settlement. 9. In Nariendar Singh (supra) the Supreme Court was of view that serious offences like rape and dacoity etc which is against the society, it is the duty of the State to punish the offender. In consequence, deterrence provides a rational for punishing the offender. Hence, even when there is a settlement, the view of the offender and the victim will not prevail since it is in the interest of society that the offender should be punished to deter others for committing the crime. 10. In consequence, deterrence provides a rational for punishing the offender. Hence, even when there is a settlement, the view of the offender and the victim will not prevail since it is in the interest of society that the offender should be punished to deter others for committing the crime. 10. In Parbatbhai Aahir (supra) taking note of earlier precedent on the subject pronounced in Gyan Singh (supra) and Nariendra Singh (supra) has laid down certain broad principle on the subject which should be considered by the High Court in determining whether to carry out such quashment. 1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; 2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 Cr.P.C. The power to quash under Section 482 is attracted even if the offence is non-compoundable. 3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power; 4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court; 5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; 6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; 7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned; 8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; 9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 10. There is yet an exception to the principle set out in propositions (8) and (9) above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance. 11. So far as the present case is concerned, the respondent No. 2/the informant filed the FIR with the allegation that in absence of her husband the accused person forcefully committed rape upon her while her husband was along with her injured son in the hospital. But the said informant now stated to have settled the matter and to this effect, she has also filed affidavit. But the said informant now stated to have settled the matter and to this effect, she has also filed affidavit. But it is to be noted that the informant is a married women, having her husband and child and accused is the cousin brother of her husband and she complained of forceful rape upon her. 12. The present case as per allegations in the FIR would demonstrates, not merely one involving private dispute but relates to an offence of rape and implicate serious offences, having bearing on a societal interest. In view of the legal proposition laid down above such a settlement cannot be encouraged nor FIR can be quashed by exercising such extraordinary power of this Court. In such circumstances, this Court is of considered opinion that it is not a fit case to invoke the inherent jurisdiction and hereby declined to quash the FIR and the criminal proceeding, as sought for. Resultantly, petition stands rejected and disposed of.