Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 1012 (ALL)

Ajay Kumar v. State of U. P.

2020-07-09

ALI ZAMIN

body2020
JUDGMENT : 1. Sri Ajay Kumar Jagdish, learned counsel for the opposite party No. 2 filed short counter affidavit, is taken on record. 2. Heard Sri Ram Kumar Dubey learned counsel for the applicants, Sri Ajay Kumar Jagdish learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record. 3. The present application under Section 482 Cr.P.C. has been filed to quash the impugned charge sheet dated 09.01.2016 as well as the entire criminal proceeding of Criminal Case No. 5224 of 2017 (State Vs. Ajay and others), under Section 363 and 366 I.P.C., arising out of Case Crime No. 617 of 2015 in terms of compromise dated 04.03.2020 arrived between the parties, pending in the Court of learned Chief Judicial Magistrate, Hasanpur, District-Amroha. 4. Learned counsel for the applicant submits that F.I.R. under Section 363, 366 I.P.C. was lodged on 01.11.2015 by the informant-opposite party no.2 Sri Banke Lal that applicant No.1 Ajay Kumar with assistance of applicant no.2 Kamal kidnapped his daughter aged about 16 years from his house at a time, when no family member was there in the house. They also took away jewellery of about Rs. one lakh and Rs.35,000/-cash as well as pass book of the bank. He submits that as per High School Certificate date of birth of victim is 16.04.1998 but this date of birth is not exact one, real fact is that Samiksha was major, applicant and victim developed love affair and decided to marry but Opposite Party No. 2, father of the victim, was opposed to the marriage that is why he lodged the F.I.R. against the applicants. Applicant no.1 and victim solemnized marriage on 18.04.2016 and they are living as husband and wife. At present they have two kids also and parties have also arrived at a compromise in the matter. Informant-opposite party no.2 Banke Lal on 04.03.2020 has moved an application before the trial court that applicant no.1 has married with his daughter and at present they have two kids also. Now there is no dispute between the parties, hence the case should be disposed in terms of compromise. He prays that the criminal proceeding against the applicants be quashed. 5. Learned A.G.A. opposes and submits that at the time of incident as per High School Certificate victim was minor below 18 years. 6. Now there is no dispute between the parties, hence the case should be disposed in terms of compromise. He prays that the criminal proceeding against the applicants be quashed. 5. Learned A.G.A. opposes and submits that at the time of incident as per High School Certificate victim was minor below 18 years. 6. Learned counsel for the opposite party no.2 submits that applicant no.1 and daughter of Opposite Party No.2 had love affair and both decided to enter into marriage. To marry with the applicant no.1 Ajay Kumar, daughter of opposite party No.2 had left her parental house and married with him. She is living also with the applicant no.1 as husband and wife. Since opposite party no.2 was not happy with the aforesaid marriage on account of which he had lodged the F.I.R. Applicant no.1 and opposite party no.2 on 04.03.2020 have entered into a compromise. In the compromise it has been mentioned that now opposite party no.2 has accepted the applicant No.1 as his son-in-law and no dispute exists between the applicant and opposite party no. 2. There is no dispute between applicant no.1 and daughter of Opposite Party No.2 also, they have two kids and they are living as husband and wife and leading a happy marital life. Matter has been resolved between the parties. Therefore he prays that case may be disposed of in terms of the compromise. 7. The offences of Section 363 and 366 I.P.C. are not compoundable. Therefore, in the instant case considerable issue is, whether the criminal proceeding can be quashed or not. To decide issue involved in the case, it will be apt to refer the following cases. 8. In Madhavarao Jiwajirao Scindia Vs. Sambharirao Chadrojario Angre, 1988 1 SCC 692 , the Hon'ble Supreme Court has held that while exercising inherent powers of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue, the Court may, while taking into consideration the special facts of a case, also quash the proceedings. 9. In B.S. Joshi and others Vs. 9. In B.S. Joshi and others Vs. State of Harayan and others, (2003) 4 SCC 675 , the Hon'ble Supreme Court has held that the High Court in exercise of its inherent powers can quash the criminal proceedings or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. 10. In Gian Singh Vs. State of Punjab and Another ( 2012) 10 SCC 303, the Hon'ble Supreme Court has held as under:- "Where High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice therefore, being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed." 11. In Yogendra Yadav and others Vs. State of Jharkhand and Others (2014) 9 SCC 653 , the Hon'ble Supreme Court has held as under:- "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 moral 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." 12. 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." 12. In the case of Prabhat Bhari Aahir Alias Parbatbhai Bhimsinhabhai Karmur and Others Vs. State of Gujarat And Another (2017) 9 SCC 641 , the Hon'ble Supreme Court has held as under:- "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. 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 a 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. 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 the 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." 13. From the law laid down by the Hon'ble Supreme Court in the above referred cases, it is very much clear that inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accordance with the guideline engrafted in such power viz: (i) to secure the ends of justice, or (ii) to prevent abuse of process of any court. In what cases power of quashing, may be exercised would depend upon the facts and circumstances of each case and no category can be prescribed. In what cases power of quashing, may be exercised would depend upon the facts and circumstances of each case and no category can be prescribed. Even the offences which are not compoundable can be quashed by exercising inherent powers under Section 482 Cr.P.C. While exercising such power High Court has to consider whether offences are arising out of family dispute where the wrong is basically private or personal in nature and the parties have resolved their entire dispute, if it is so, then High Court may quash the criminal proceedings if in its view, on account 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. While exercising such power 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 quashed even though victim or victim's family and offender have settled the dispute as such offences are not private in nature and have a serious impact on the society. Offences under special statutes like prevention of Corruption Act or offences committed by public servants while acting in that capacity also cannot be quashed. It can be put in other words that while exercising inherent power the High Court also 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 be 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. 14. In the instant case, it is alleged that applicant No. 1 Ajay Kumar kidnapped daughter of Opposite Party No. 2 aged about 16 years. As per High School Certificate date of the victim is 16.04.1998, as such on the date of the incident victim was aged about 17 years and 06 months. 14. In the instant case, it is alleged that applicant No. 1 Ajay Kumar kidnapped daughter of Opposite Party No. 2 aged about 16 years. As per High School Certificate date of the victim is 16.04.1998, as such on the date of the incident victim was aged about 17 years and 06 months. It is also submitted that the date of birth of the victim recorded in the High School Certificate is not exact one and at the time of the incident she was major. It is further submitted that on 18.04.2016 applicant no. 1 and victim solemnized marriage, since then they are passing their marital life happily and they have also at present two kids from their wedlock. The offences alleged do not come within the category of heinous or serious offences of mental depravity, murder, rape or dacoity which cannot be quashed as held by Hon'ble Supreme Court in the above referred cases. On the other hand the offences which have been levelled against the applicants are of private in nature and have not serious impact on the society. Opposite party No. 2 has also filed a short counter affidavit stating therein that now he has accepted applicant no. 1 Ajay Kumar as his son-in-law and no dispute remains between them. 15. Considering that on account of compromise between the parties, there are remote and bleak chances of conviction. Appellant no.1 Ajay Kumar and victim have two kids also and offences are private in nature and have not serious impact on society, to let continuing the case proceeding will be nothing but waste of time and energy of the Court only. Thus, in the facts and circumstances of the case as discussed above to secure the ends of justice it is a fit case to quash the impugned charge sheet dated 09.01.2016 as well as the entire criminal proceeding of Criminal Case No. 5224 of 2017 (State Vs. Ajay and others), under Section 363 and 366 I.P.C., arising out of Case Crime No. 617 of 2015 in terms of compromise dated 04.03.2020 arrived between the parties, pending in the Court of learned Chief Judicial Magistrate, Hasanpur, District-Amroha by exercising the power provided under Section 482 Cr.P.C. Accordingly, the entire criminal proceeding of the aforesaid case is hereby quashed. 16. The application under Section 482 Cr.P.C. is allowed. 17. 16. The application under Section 482 Cr.P.C. is allowed. 17. Office is directed to communicate this order to the concerned trial court.