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2021 DIGILAW 527 (GAU)

Apriya Chikro v. State of Arunachal Pradesh

2021-09-02

ROBIN PHUKAN

body2021
ORDER : 1. This application, under section 482 of the CrPC, is preferred by Mrs. Apriya Chikro (informant, w/o Shri Anemso Pul, Village-Chereng, PO/PS-Wakro, District-Lohit, Arunachal Pradesh, petitioner No. 1 and by petitioner No. 2-Shri Anemso Pul, s/o late Sigu Pul, Village-Chereng, District-Lohit, Arunachal Pradesh, jointly, for setting aside and quashing the FIR of Tezu Women P.S. Case No. 06/2021, registered under sections 498-A/506 of the Penal Code, 1860 dated 2.6.2021, on the basis of a Deed of Settlement, dated 8.9.2021, executed by both the parties, before the Executive Magistrate at Tezu on 9.7.2021. 2. Heard Mr. C.W. Mantaw, learned counsel for the petitioners and also heard Mr. T. Ete, learned Addl. P.P. for the State of Arunachal Pradesh. 3. The factual background, under which Tezu Women P.S. Case No. 06/2021, under section 498-A/506 of the Indina Penal Code, came to be registered, is adumbrated hereinbelow “The petitioner No. 1-Mrs. Apriya Chikro and petitioner No. 2-Shri Anemso Pul are husband and wife. They got married in the year 2014, and they are blessed with a son, namely, Master Anshun Pul. After 3 months of birth of the baby to the petitioner No. 1, the petitioner No. 2, developed extra marital affairs with one young girl, namely, Ms. Baby Chakkap (actual name withheld) and, though, the petitioner No. 1 protested against such activities, the petitioner No. 2 paid no heed to the same and he continued with illicit affairs with the young girl. The petitioner No. 2 also started abusing petitioner No. 1, both physically and mentally and though the petitioner No. 1 tried her level best to get the matters resolved yet, the same failed to yield in a result. Thereafter, on 1.7.2021, the petitioner No. 2 eloped with Ms. Baby Chakkap. Then having came to know about the same the petitioner No. 1 started searching petitioner No. 2 and the girl and traced them out in the house of elder brother of the petitioner No. 2 at Forest Quarter, near GHSS Girls Hostel, with his newly wedded wife, and when she protested about the second marriage, then the petitioner No. 2 pressed her neck and assaulted her in front of everyone. The petitioner No. 1 also requested the petitioner No. 2 not to indulge in such activities, but he paid a deaf ear to her request. Instead he happily brought Ms. The petitioner No. 1 also requested the petitioner No. 2 not to indulge in such activities, but he paid a deaf ear to her request. Instead he happily brought Ms. Baby Chakkap, a minor girl of 16 years old, studying in Class-X at VKV Amliang.” The petitioner No. 1, then lodged one FIR (Annexure-I) with the Officer in-Charge of Women Police Station, Tezu on 2.6.2021. On receipt of the FIR, the Officer in-Charge of Women Police Station, Tezu registered the case, being Tezu Women P.S. Case No. 06/2021, under section 498-A/506 of the Penal Code, 1860 and endorsed Inspector, Smti. Bharati Mingki, to investigate the same. Pending completion of investigation, the petitioner-No. 1 entered into a settlement deed (Annexure-II) with the petitioner No. 2. And thereafter, she approach the Officer in-Charge Women. Police Station, Tezu with one petition (Annexure-III) for withdrawal of Tezu Women P.S. Case No. 06/2021, registered under section 498-A/506 of the Penal Code, 1860. She has also filed another petition (Annexure-III colley) before the learned JMFC, Tezu informing him about the settlement of the case between her and her husband. Thereafter, the petitioner Nos. 1 and 2 approached this court for quashing the FIR (Annexure-I), by filing the present petition under section 482 of the Code of Criminal Procedure.” 4. Mr. C.W. Mantaw, the learned counsel for the petitioners has submitted that the law relating to quashing of FIR, exercising the inherent power under section 482 of the CrPC is settled by Kon'ble Supreme Court in a catena of decisions. It is submitted that the petitioner No. 1 and petitioner No. 2 are husband and wife and they have settled the disputes between themselves and they are no longer interested to pursue with the case and they have also entered into a settlement deed dated 9.7.2021, and on the basis of the same, they approached this court for quashing the FIR of Tezu Women P.S. Case No. 06/2021, registered under section 498-A/506, of the Penal Code, 1860. Therefore, Mr. Mantaw, the learned counsel for the petitioners has contended to allow the petition. Mr. Mantaw has referred one case law of hon'ble Supreme Court in Social Action Forum For Manav Adhikar v. Union of India, (2018) 10 SCC 443 , to buttress his submission. 5. Per contra, Mr. T. Ete, the learned Addl. PP, producing the Case Diary before this court, vehemently opposed the petition. Mr. Mantaw has referred one case law of hon'ble Supreme Court in Social Action Forum For Manav Adhikar v. Union of India, (2018) 10 SCC 443 , to buttress his submission. 5. Per contra, Mr. T. Ete, the learned Addl. PP, producing the Case Diary before this court, vehemently opposed the petition. Taking this court through the FIR (Annexure-I), Mr. Ete submits that the petitioner No. 1 in her FIR has alleged that the girl, with whom her husband has illicit affairs, and eloped with her and married her thereafter, is a minor girl of 16 years old and she is studying in Class-X at VKV, Amliang. It is further submitted that the I.O. of the case, having investigated into such allegation, has collected birth certificate of the victim girl and found that her date of birth is 3.8.2006, which was issued by Registrar, Birth and Death, Hayuliang. Taking this court through the Case Diary produced by him, the learned Addl. P.P. further submits that the Investigating Officer, after recording the statement of the victim girl as well as of the accused and getting the victim girl examined by Doctor and collecting the medical report found made out a prima facie case under section 366 A of the Penal Code, 1860, read with section 4/6 of the POCSO Act against the petitioner No. 2, and, therefore, he added the said sections in the case and intimated the learned JMFC, Tezu about the same and obtained an order to that effect from the concerned Magistrate. Mr. Ete, the learned Addl. P.P. further submits that the FIR, that discloses the offence under section 366 A of the Penal Code, 1860 and during investigation the Investigating Officer found made out a prima facie case section 4/6 of POCSO Act, and as such the FIR cannot be quashed, as such offences are against the society. The learned Addl. PP has referred two case laws (1) State of Gujarat v. Girish Radhakrishnan Varde, Criminal Appeal No. 1996 of 2013 [Arising out of SLP (Crl.) 734 of 2012]; (2) Vijoybhai Malabhai Bharwad v. State of Gujarat, [2008] 3 C.C.R. 324, to contend that the I.O. of the case is the master of the investigation and he can add or delete any section, during the course of the investigation. The learned Addl. The learned Addl. P.P., referring another case law — Kishore Samrite v. State of U.P., (2013) 2 SCC 398 , submitted that the petitioners have suppressed the material facts here in this case and not approaching the court with clean hand and abusing the process of the court and, therefore, it is contended to reject the petition. 6. In reply to the submission of learned Addl. PP, Mr. Mantaw, the learned counsel for the petitioners, submits that the I.O. of the case cannot by himself add or delete any section during the course of the investigation. It is also submitted that the petitioner No. 2 was arrested on 11.8.2021, and he was enlarged on bail and the memo of the arrest prepared by the I.O. of the case also reveals that the case is registered only under section 498-A/506, of the Penal Code, 1860 and there is no reference to section 366 A of the Penal Code, 1860 read with section 4/6 of POCSO Act. It is further submitted that the offences made out in this case are under section 498-A/506 of the Penal Code, 1860 only and on the basis of the law laid down by hon'ble Supreme Court in the case of State of Madhya Pradesh v. Laxmi Narayan, 2019 SCC OnLine SC 320, the FIR can be quashed on the basis of the settlement deed arrived at by the petitioner No. 1 and petitioner No. 2. It is further submitted that the investigation of this case, in respect of the age of the victim girl, with whom the petitioner No. 2 allegedly eloped, and other aspects of the case, has to be made by a ‘child friendly police officer’ as defined in the POCSO Act and if investigation is carried out by an unauthorised police officer, then the same may also be a ground for quashing the proceeding. Referring to one Criminal Revision Petition, No. 2.(ANJ)/2021, filed by the petitioner No. 2 before the learned Sessions Judge, Tezu Mr. Referring to one Criminal Revision Petition, No. 2.(ANJ)/2021, filed by the petitioner No. 2 before the learned Sessions Judge, Tezu Mr. Mantaw submits that the learned Sessions Judge, Tezu, who is also Special Judge under POCSO Act, has observed in the said case that there is no addition or deletion of sections and that the Investigating officer is not authorized to add and delete any section of law by manipulating the original FIR, though he can do so at the time of filing of report under section 173 of the CrPC and, the said is order still in force. Therefore, Mr. Mantaw contended to allow the petition, as till now, the case stands registered under section 498-A/506, IPC only. 7. Having heard the submissions of learned advocates of both sides, we have carefully gone through the Case Diary produced by the learned Addl. P.P. and also gone through the, documents, which the learned counsel for the petitioners has submitted along with the petition and also the case laws referred to hereinabove. 8. It appears that on receipt of the FIR from the petitioner No. 1, the Officer in-Charge of Tezu Women Police Station has first registered the case under section 498-A/506 of the Penal Code, 1860. So far the offence under section 498-A/506, of the Penal Code, 1860 are concerned, there is no legal bar in quashing the FIR, in view of the law laid” down by the hon'ble Supreme Court in a catena of decisions more particularly in Laxmi Narayan (supra). Apparently, the dispute is in between the petitioner No. 1 and petitioner No. 2, who are husband and wife and it is purely a family dispute and there is no doubt about it and they have also arrived at a settlement and entered into an agreement and submitted the same before the court for quashing the FIR. Till this point, there is merit in the, petition as well as in the submission of the learned counsel for the petitioners. In fact, the learned Addl. PP also not against resolving the matter, had it been only between husband and wife, but it is being opposed by him/as. it discloses other serious offences, which according to him, is against the society. 9. But, the FIR, apart from disclosing the disputes between the petitioner Nos. In fact, the learned Addl. PP also not against resolving the matter, had it been only between husband and wife, but it is being opposed by him/as. it discloses other serious offences, which according to him, is against the society. 9. But, the FIR, apart from disclosing the disputes between the petitioner Nos. 1 and 2, also discloses that the petitioner No. 2 has developed extramarital affairs with a minor girl of 16 years old who is studying in Class-X at VKV, Amliang, and eloped with her. The Case Diary, which the learned P.P. has produced before the court, also reveals that the Investigating Officer, having investigated that limb of allegation, collects the birth certificate of the victim girl. The original copy, of the birth- certificate is available on the Case Diary and the same reflects the date of birth of the victim as 3.8.2006. It was issued by Registrar Birth and Death of Hauliang, of Anjaw District. There is no point to disbelieve the same at this stage. It, the certificate, leaves no doubt in our mind that the girl is below 16 years at the material time of occurrence. And as such she is a ‘child’ as defined in section 2(d) of the POCSO Act. 10. It also appears that the Investigating Officer has examined the victim under section 161, CrPC. Besides, the Investigating Officer has got the victim girl examined by Doctor and collects, the report. The report is available on the case diary. Perusal of the report reveals that the Doctor opined that as per statement of the victim and the physical examination, he is of the opinion that sexual act has taken place. The Investigating Officer also examined the accused, i.e., petitioner No. 2, and also the petitioner No. 1 and other witnesses. A conjoint reading of the same goes to show that the victim girl was subjected to sexual assault. Thus, a prima facie case under section 366-A, IPC as well as section 4/6 of the POCSO Act, appears to be made out against the accused-petitioner No. 2. 11. A conjoint reading of the same goes to show that the victim girl was subjected to sexual assault. Thus, a prima facie case under section 366-A, IPC as well as section 4/6 of the POCSO Act, appears to be made out against the accused-petitioner No. 2. 11. It also appears that on 7.6.2021, the Investigating Officer has made a prayer before the Judicial Magistrate First Class, (JMFC) Tezu for addition of section 366-A, IPC, read with section 4/6 of the POCSO Act with Tezu Woman Police Station Case No. 06/2021, and, accordingly, the learned JMFC, Tezu vide order dated 7.6.2021, has allowed the prayer of the Investigating Officer for addition of section 366-A, IPC, read with section 4/6 of the POCSO Act. It is to be mentioned here that challenging the legality, propriety and correctness of the order of the learned Judicial Magistrate, First Class, Tezu dated 7.6.2021, the petitioner No. 2 has preferred one revision petition No. 02(Anj)/2021 before the learned Sessions Judge, Tezu and the Sessions Judge, Tezu has held that since the learned Judicial Magistrate, First Class, is authorised to deal with bail and remand only in absence of Magistrate having jurisdiction to try the case, in view of Notification No. JUD/DSC-37/2010, dated 6.1.2014, he is not authorised to pass any other order except bail and remand. It is further held in the said revision that the Investigating Officer is not authorised to add or delete any section of law by manipulating the original FIR, though he can do the same at the time of filing the report under section 173, CrPC. It is further held that by using the word ‘implication’ in her petition by the Investigating Officer and also by the learned Judicial Magistrate, First Class, in his order dated 7.6.2021; there is no addition or deletion of any section of law against the revisionist. The learned Sessions Judge further directed the I.O. not to add any new section of law at that stage though she may do it at the time of filing the report under section 173, CrPC. 12. It is, under this context the learned Add. P.P. has submitted that the Investigating Officer has the statutory right to investigate a case, and is the master of investigation and during investigation he can add or delete any section of law, if he found made out the same during investigation. 12. It is, under this context the learned Add. P.P. has submitted that the Investigating Officer has the statutory right to investigate a case, and is the master of investigation and during investigation he can add or delete any section of law, if he found made out the same during investigation. No doubt the case law — Vijaybhai Malabhai Bharwad (supra), so referred by the learned Addl. P.P. in this regard, bolstered his submission. But, this court, while dealing with a petition under section 482 of the Code of Criminal Procedure, is not suppose to go into the question of correctness of such a finding, so recorded by the learned Sessions Judge, Tezu in the revision petition, for being not the subject-matter here. Nor there is necessity to go into the question of competency or incompetency of the police officer, who has been investigating the case, for the same rationale. 13. Notwithstanding, we find from the FIR (Annexure-I) that there is allegation against the accused for elopement of a minor girl of 16 years and marrying her. Also we find from the Case Diary that the I.O. having investigated in to such allegation, found prima facie materials under section 366-A, IPC and also under section 4/6 of the POCSO Act. Thus, Tezu P.S. Case No. 06/2021 is not confined to its original sections, i.e., under section 498-A/506, IPC. The FIR also discloses prima fade case under section 366-A, IPC. And, the materials collected so far during investigation, disdoses a prima facie case under section 4/6 of the POCSO Act also against the petitioner No. 2. 14. It also appears that on 11.6.2021, the Investigating Officer has made a prayer to the Special Judge, under POCSO Act, i.e., the Sessions Judge, Tezu for addition of section 366-A, IPC, read with section 4/6 of the POCSO Act. But, no order appears to have been passed on the said petition till date. And, perhaps, because of the suo motu injunction passed by him in the revision petition No. 02(Anj)/2021. 15. But, no order appears to have been passed on the said petition till date. And, perhaps, because of the suo motu injunction passed by him in the revision petition No. 02(Anj)/2021. 15. Now, the question to be decided by this court is Whether the FIR of Tezu P.S. Case No. 06/2021, can be quashed while it discloses a prima fade case under section 498-A/506, IPC, and also a prima fade case under section 366-A, IPC, and while a prima fade case under section 4/6 of the POCSO Act, is also found made out against the petitioner No. 2, during investigation? 16. Before directing a discussion into the seminal question, it would be pertinent to discuss some the case laws, presently holding the field. The, power of High Court under section 482, CrPC in quashing the criminal proceedings, where the offences are non-compoundable under section 320, CrPC is elaborately discussed by a three-judge Bench of the hon'ble Supreme Court in the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303 . In the said case it has been held that “Family disputes where the wrong is basically private or personal in nature and the parties have resolved their dispute; and the High Court may quash the proceeding 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 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.” 17. Again another three-judge Bench of hon'ble Supreme Court in Laxmi Narayan (supra), considering the law on the point and also considering the other decisions on the point, it is observed and held as under (i) that the power conferred under section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; (ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; (iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; (iv) offences under section 307, IPC and the Arms Act, etc., would fall in the category of heinous and serious offences and, therefore, are to be treated as crime against the society and not against the individual alone, and, therefore, the criminal proceedings for the offence under section 307, IPC and/or the Arms Act, etc., which have a serious impact on the society cannot be quashed in exercise of powers under section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of section 307, IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of section 307, IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under section 307, 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. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; (v) while exercising the power under section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of, the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc.” 18. In Social Action Forum for Manav Adhikar (supra), referring to its earlier decision in Gian Singh (supra), it has been held that— “A criminal proceeding, which is not compoundable, can be quashed by the High Court under section 482, CrPC. When settlement takes place, then both the parties can file a petition under section 482, CrPC and the High Court, considering the bona fide of the petition, may quash the same. The power rests with the High Court. 19. What comes through loud and clear from the ratios laid down in the case laws above, is that the power under section 482, CrPC is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., which are not private in nature and have a serious impact on society. 20. In the case in hand, from the material collected by the Investigating Officer during investigation, a prima facie case under section 498-A/506, IPC is made out. The FIR also discloses a prima facie case under section 366-A, Penal Code, 1860. 20. In the case in hand, from the material collected by the Investigating Officer during investigation, a prima facie case under section 498-A/506, IPC is made out. The FIR also discloses a prima facie case under section 366-A, Penal Code, 1860. And during investigation the I.O. also collected materials, which goes a long way to show that a prima facie case, under sections 4/6 of the POCSO Act, a provision considered to be ‘pari materia’ with that of ‘rape’, under section 376, Penal Code, 1860, against the petitioner No. 2, is made out. It is a serious offence, and is not an offence of private nature. It has serious ramification in the society also. Thus, the matter is now not confined in between the petitioner Nos. 1 and 2. But, another victim woman is also involved here in this case and unfortunately she is a minor girl of below 16 years and she is subjected to sexual assault. She is not a party in this proceeding, and, as such she is not before us. And, we afraid that passing any order, behind her back, will be prejudicial to her right and interest and the same will send a wrong signal to the society. We have considered the submissions of the learned counsel for the petitioners, as well as of the learned Addl. P.P., in the light of facts and circumstances on the record and case diary, and we left unimpressed by the submission of the learned counsel for the petitioner. However, we find that there is substance in the submission of the learned Addl. P.P., and we record our concurrence to the same. 21. The case in hand also does not fall in any of the categories of cases, given by way of illustration, in the case of State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 , by the hon'ble Supreme Court, where the inherent power, under section 482 of the Code of Criminal Procedure, could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 , by the hon'ble Supreme Court, where the inherent power, under section 482 of the Code of Criminal Procedure, could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The categories of cases illustrated therein are (a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in — their entirety, do not prima facie constitute any offence or make out a case against the accused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code; (c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 22. Thus, applying the ratio, laid down by the hon'ble Supreme Court in the case of Gian Singh (supra) and Laxminarayan (supra) and Ch. 22. Thus, applying the ratio, laid down by the hon'ble Supreme Court in the case of Gian Singh (supra) and Laxminarayan (supra) and Ch. Bhajan Lal (supra) to factual matrix of the case in hand, we are constrained to hold that this is not a fit case where the inherent power under section 482, CrPC can be invoked to quash the FIR of Tezu P.S. Case No. 06/2021. In the result, the petition stands rejected. The Case Diary be sent back immediately.