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2020 DIGILAW 289 (ALL)

Suhail Ahmad v. State of U. P.

2020-01-27

NAHEED ARA MOONIS

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JUDGMENT : 1. Supplementary affidavit filed today on behalf of the applicants is taken on record. 2. Heard learned counsel for the applicants, the learned AGA for the State and perused the record. 3. The instant application has been filed by the applicant with a prayer to quash the proceeding pursuant to the charge sheet dated 10.10.2017 in S.T. No. 69 of 2018 arising out of Case Crime No. 1244 of 2017 (State of U.P. Vs. Suhail Ahmad) under Sections 323, 504, 506 IPC & 3(1) (Da) (Dha) of S.C./S.T Act at Police Station Dudhara, District Sant Kabir Nagar pending in the court of District and Sessions Judge, Sant Kabir Nagar. 4. It is submitted by the learned counsel for the applicants that the opposite party no. 2 has lodged the First Information Report against the applicants under Section 354A, 323, 504 IPC and Section 3(1) (Da) (Dha) S.C./S.T Act after investigation no offence under Section 354A IPC was found and hence, the charge sheet has been submitted against the applicants under Section 323, 504 and 506 IPC and 3(1) (Da) (Dha) of S.C/S.T Act whereupon the court below has taken cognizance. The applicants are maliciously being prosecuted as opposite party no. 1 has now filed a compromise application dated 19.3.2019 (which has been appended as annexure-1 to the supplementary affidavit) and in view of the compromise arrived at between the parties the opposite part no 2 is not will to prosecute the applicants. Hence the entire proceeding is liable to be quashed. 5. Per contra, the learned AGA has contended that from the allegations made in the FIR prima facie offence is made out against the applicants. The innocence of the applicant cannot be adjudged at the pre trial stage. The offence under Sections 323, 504, 506 IPC is only compoundable whereas the charge sheet has also been submitted under Section 3(1) (Da) (Dha) of SC/ST Act. The S.C./S.T Act is a special law where there is no provision for compounding the offence. Therefore, the applicants do not deserve any indulgence on the basis of the compromise between the parties. 6. From the perusal of the materials on record and looking into the facts and circumstances of the case and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicants. Therefore, the applicants do not deserve any indulgence on the basis of the compromise between the parties. 6. From the perusal of the materials on record and looking into the facts and circumstances of the case and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicants. The plea of compromise raised by the counsel for the applicants cannot be accepted as the compounding of offence is specified under Section 320 (1) (2) of the Cr.P.C in respect of specified penal offences, which are compoundable with the permission or without the permission of the Court. Since SC/ST Act, 1989 is a special statute, which has been enacted for the purpose of protecting the dignity and integrity of the members of the SC/ST community as such the offences mentioned therein are not compoundable. In Gyan Singh Vs. State of Punjab & others 2012 (10) SCC 303 it has been held by the Hon'ble Supreme Court that offences punishable under special statute are not covered by Section 320 of the Code. From the perusal of the first information report the applicants have used the vituperative words with cast aspersion to the respondent no. 2 intentionally, while outraging her modesty and assaulting her. The applicant with evil intention touched the complainant who belongs to S.C/S.T community, hence it cannot be said that offence committed by the applicants and attack upon the victim in public view individual in nature and not against the society. No doubt the offence under Sections 323, 504 and 506 IPC is compoundable but merely on account of this reason that the parties have entered into compromise, the offence under the SC/ST Act cannot be quashed as the offences under the special statutes are not covered by Section 320 Cr.P.C. 7. At the stage of issuing cognizance or issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866 , (ii) State of Haryana Vs. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866 , (ii) State of Haryana Vs. Bhajanlal, 1992 SCC(Crl) 426, (iii) State of Bihar Vs. P. P. Sharma, 1992 SCC (Crl) 192. 8. From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palanattkar & others Vs. State of Bihar, 2002(44) ACC 168, it has been held by the Hon'ble Apex Court, that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists. 9. The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing of proceeding is refused. There is no merit in this application filed under Section 482 Cr.P.C., thus the same is accordingly dismissed. The applicants have ample opportunity to raise all the objections at the appropriate stage. 10. However, the applicants are directed to appear and surrender before the court below and apply for bail within a period of thirty days from today, the prayer for bail shall be considered expeditiously in accordance with law after hearing the Public Prosecutor. 11. In case the applicants fail to surrender within the stipulated period the court below shall take appropriate action against him.