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2022 DIGILAW 978 (GAU)

Mutsanglemba v. State Of Nagaland

2022-09-06

MARLI VANKUNG

body2022
JUDGMENT : Heard Mr. Moa Jamir, learned counsel for the petitioners alongwith Mr. K. Angami, learned Public Prosecutor for the State. 2. This is a petition under Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C) for quashing and setting aside the FIR dated 11.03.2021 lodged by the complainants (respondent Nos. 2, 3 & 4) and the proceedings against the petitioners in GR-17/2021 in connection with Women Police Station Case No. 04/2021 under Section 75 of the Juvenile Justice (Care & Protection) Act, 2015 which is presently pending before the learned Court of Judicial Magistrate, First Class, Kohima, Nagaland. 3. Facts leading to the institution of the present petition are that on 11.03.2021, a written complaint was filed by respondent Nos. 2, 3 & 4 at North Police Station (Kohima, Nagaland) on the allegation that the present petitioners have physically assaulted a minor girl aged 5 years whom they had adopted. Subsequently the case was registered on 12.03.2021 and the petitioners were apprehended by the Kohima North Police personnel. The Investigating Officer, after due investigation filed charge-sheet against the petitioners under Section 323 IPC read with Section 75 JJP Act, 2015. The case Investigating Officer also submitted 15 nos. of prosecution witnesses to prove their case against the petitioners. The petitioners were granted bail on 13.05.2021. 4. On 19.01.2022 the learned Trial Court framed charge under section 323 IPC read with section 75 of Juvenile Justice Care and Protection Act against the accused petitioners to which they both pleaded not guilty and claimed to be tried. On 20.05.2021 the trial court examined PW-4, thereafter, summons was issued to PW-2 and PW-3 for evidence on 15.06.2022. Pending trial, on 27.04.2022, a compromise deed was executed between the present petitioners with the complainants (respondent Nos. 2, 3 & 4) and the victim’s father (respondent No. 5). As per the terms of the compromise deed the parties have stated that they have amicably settled the dispute amongst themselves and to live in peace and harmony. The parties mutually resolved that there would be no purpose served if the criminal proceeding is allowed to continue and they have no objection if the criminal proceedings in GR-17/2021 is quashed and set aside. 5. The parties mutually resolved that there would be no purpose served if the criminal proceeding is allowed to continue and they have no objection if the criminal proceedings in GR-17/2021 is quashed and set aside. 5. In pursuance of the compromise deed executed between the parties the present petitioner approached the learned Trial Court by filing an application under Section 320 Cr.P.C. to compound the offence under Section 323 IPC read with Section 75 of JJP Act. The learned Trial Court after hearing both the parties and on perusal of the compromise deed dated 27.04.2022, had examined one of the complainants and arrived to a conclusion that it was a fit case to compound the offence under Section 323 IPC against the petitioners as it appears that the conviction is remote and bleak on the parties having made a compromise deed and accordingly acquitted the petitioners of the offence under Section 323 IPC. The learned Trial Court was, however, of the view that since Section 75 JJP Act is a non-compoundable offence it was only the High Court that had the inherent power to compound a non-compoundable offence and quash the proceedings. Hence, the instant application under section 482 Cr.P.C. 6. The learned counsel for the petitioners, Mr. Moa Jamir submits that the parties have executed the compromise deed on 27.04.2022, which was made voluntarily and with no coercion as noted by the Judicial Magistrate, First Class, Kohima, Nagaland in its order dated 13.05.2022. The compromise deed would facilitate the parties to live in peace and that the offence is of personal nature. The learned counsel submits that though the offence u/s 75 JJP Act was not compoundable under section 320 Cr.P.C., however the offence is not of a heinous nature, the sentence prescribed under section 75 JJP Act was only upto 3 years imprisonment. That considering the fact that the complainants and the father of the victim do not wish to pursue the case against the petitioners, there would be a bleak chance of conviction during trial and thus, there was no point in continuing the case which would only be an abuse to the process of law. 7. That considering the fact that the complainants and the father of the victim do not wish to pursue the case against the petitioners, there would be a bleak chance of conviction during trial and thus, there was no point in continuing the case which would only be an abuse to the process of law. 7. The learned counsel has relied on the decisions of the Apex Court in the cases of Kulwinder Singh & Others vs. State of Punjab reported in (2007) 3RCR (Crl.) 1052 and Gian Singh vs. State of Punjab and Another reported in (2012) RCR (Crl.) 543 and this court’s decision dated 08.11.2019 in Nchubho Humtsoe vs. The State of Nagaland, Case No. Crl.P. 8/2019. He has also cited the decision of the Punjab & Haryana High Court in Riya Gulati vs. State of Haryana and another reported in CMR-M No. 13025/2019 dated 29.01.2020, wherein the court observed that “in view of the report dated 20.04.2019, submitted by the Judicial Magistrate, First Class, Faridabad, the factum of genuineness of the compromise has been endorsed and the Court has shown its satisfaction that the dispute between the parties has been resolved amicably and the compromise has been arrived at on account of their sweet will without any threat, coercion and no undue influence”. The Court then was of the view that in view of the compromise between the parties chances of conviction of the accused are remote and there is a minimal chance of the witness coming forward to depose in support of the prosecution version and held that it would be appropriate to exercise discretionary power of the Court under Section 482 Cr.P.C. to put an end to the controversy for all times to come. The Court observed that the compromise in question was fully in consonance with the guidelines framed in Kulwinder Singh & Others vs. State of Punjab reported in (2007) 3RCR (Crl.) 1052 and Gian Singh vs. State of Punjab and Another reported in (2012) RCR (Crl.) 543 and resultantly, FIR registered under Section 75 of the JJP Act was quashed. 8. The learned counsel for the petitioners submits that the present case is similar to the above mentioned case Riya Gulati (supra) and that it is unlikely that the complainants or the victim would appear before the Court during the trial due to the compromise deed duly executed by them. 8. The learned counsel for the petitioners submits that the present case is similar to the above mentioned case Riya Gulati (supra) and that it is unlikely that the complainants or the victim would appear before the Court during the trial due to the compromise deed duly executed by them. He further submits that the trial of the case is at its initial stage since only one prosecution witness has been examined and it appears that PW-2 and PW-3 who are the complainants are not likely to depose in the Court since they have failed to appear on the Court dates fixed for prosecution evidence. He thus submits that the present petition may be allowed and the criminal proceedings against the petitioners may be quashed and set aside. 9. The learned P.P. on the other hand has strongly objected stating that the crime is committed upon a child of only 5 (five) years and such heinous offences should be strongly condemned as it goes against the sentiments of the society. He further submits that in view of the decision of the Apex Court in Gian Singh’s (Supra) case where it is mentioned any compromise between 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, cannot provide for any basis for quashing criminal proceedings involving such offences. He submits that in the instant case the petitioners have been charged under section 75 Juvenile Justice Care and Protection Act, which is a special statute for the protection of children in need of care and protection. The petitioners have assaulted a child of 5 years which is of a heinous and serious nature. In support of his submission he has cited the decision of the Bombay High Court in Rishi Prabha Ranjitkumar Prasad vs. The State of Maharashtra and others in Crl WP No. 4330 0f 2019 dated 10.06.2021 where the Division Bench in a case where the victim was a child of 10 (ten) years being employed in the house of the petitioners was beaten and mistreated, accordingly they were charged under Section 370 and also Sections 75, 79 and 23 of the JJP Act. The Bombay High Court in this case had held that “the Hon’ble Supreme Court in the case of Gian Singh (Supra) in paragraph 61 observed that any compromise between 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 cannot provide for any basis for quashing criminal proceedings involving such offences. In the present case, the petitioners are being prosecuted under the provisions of Juvenile Justice (Care & Protection of Children) Act, 2015, which is a special act. The case in hand stands on different footing from criminal cases predominantly having civil flavor and which are personal in nature; importantly an outcome of the present case will impact upon the society. The offence committed by the petitioner cannot be said to be personal in nature.” 10. The learned PP has further relied on the decision of the Hon’ble Apex Court in the State of Madhya Pradesh vs. Laxmi Narayan & Other reported in 2019 5SCC 688, wherein in Hon’ble Supreme Court had set aside the order dated 28.05.2018 passed by the High Court in Narinder Singh Rajput vs. State of Madhya Pradesh and held that the FIR/investigation/criminal proceedings is to proceed against the accused persons who were charged under Section 323, 294, 308 and 34 IPC inspite of the fact that the accused and the complainant settled the matter. He has also placed reliance on the decision of the Co-ordinate Bench of this Court in Limhathung vs. State of Nagaland in Crl.REVN/5/2021 dated 24.03.2022, wherein it was held that “ in the case in hand the offence are grave in nature involving minor victim. The allegations are under Section 354A (2)/307 read with Section 18 of the POCSO Act. Therefore, when the offences are grave in nature and allegation is of an attempt of rape of a minor, such allegation and criminal proceedings cannot be quashed on the basis of a compromise entered into between the families of the victim and the accused in as much as when it is a sexual offence involving a minor, the parents in considered opinion of this Court cannot give consent on behalf of the minor to compromise such serious offences.” Mr. K. Angami, learned Public Prosecutor has also pointed out the evidence taken by the case I.O. during investigation wherein the nature of assault on the child aged 5 years is that the guardians of the victim child have been assaulting her by hitting her on her arms and buttocks. She also showed the marks she received from the beatings. It is mentioned that on 11.03.2021 she stole a piece of meat and ate it for which her guardian, accused No. 1 beat her and put her inside a sack and kept her over a fire-place and burnt king chilly which made her cough. She cried out so loud that the accused No. 1 put her back on the ground. The accused No. 2 also hit her with a stick many times and on one occasion she even burnt the palm of the child by burning plastic and dripping it over her palm. Such type of offence committed on a child is of heinous nature and the Juvenile Justice Care and Protection Act is a Special Act/ Statute to protect the children. The learned Public Prosecutor submits that the compromise deed should not allow the commission of such offences to go unprosecuted and has prayed for the dismissal of the application under section 482 Cr.P.C. 11. Having heard the submissions of both the parties this Court finds that the Hon’ble Apex court in GianSingh (Supra) held that “61. The position that emerges from the above discussion can be summarised 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. 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. 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 the 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 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. 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 the 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 the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 12. In the instant case the petitioners have been charged under section 75, Juvenile Justice Care and Protection Act, 2015, which shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both. In the instant case the petitioners have been charged under section 75, Juvenile Justice Care and Protection Act, 2015, which shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both. The allegation is that the petitioners assaulted and abused a child of only 5 years of age whom they are said to have adopted. On perusal of the charge sheet, the case of the prosecution is that the petitioners/guardians of the victim child aged 5 years have been assaulting her by hitting her on her arms and buttocks. It is mentioned that on 11.03.2021 she stole a piece of meat and ate it for which her guardian, accused No. 1 beat her and put her inside a sack and kept her over a fire-place and burnt king chilly which made her cough. She cried out so loud that the accused No. 1 put her back on the ground. On one occasion the child was hung on the switch board. The accused No. 2 also hit her with a stick many times and on one occasion she even burnt the palm of the child by burning plastic and dripping it over her palm. The prosecution has cited as many as 15 nos. of prosecution witnesses which includes the Doctor who conducted the medical examination of the child to prove their case. 13. It is seen that the said victim is a child of a tender age of only 5 years and any nature of abuse alleged to be meted upon such a young child cannot be viewed lightly. Such allegations of abuse against a child of just 5 years of age, cannot be considered an offence which is a family dispute where the wrong is basically private or personal in nature, but is in fact an offence against humanity that should shock the conscious of the society and be strongly condemned. 14. In view of the above observations I am of the considered view that criminal proceedings of such nature cannot be quashed on the basis of a compromise entered into between petitioners with the complainant and the father of the victim. I find no merit in the submission that the chances of conviction of the petitioners is bleak due to the compromise deed dated 27.04.2022, considering the fact that there are as many as 15 nos. I find no merit in the submission that the chances of conviction of the petitioners is bleak due to the compromise deed dated 27.04.2022, considering the fact that there are as many as 15 nos. of prosecution witnesses listed in the charge sheet. 15. For the above reasons, I find that it would be in the interest of justice if the case against the accused petitioners is allowed to proceed by giving both the parties a fair opportunity to adduce evidence before the trial court. 16. In view of the above the application filed in Crl.Pet./9/2022 stands dismissed and disposed.