Asha And Another vs State Of U.P. And Another on 17 November, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

?AFR

Court No. – 14

Case :- APPLICATION U/S 482 No. – 18331 of 2016

Applicant :- Asha And Another

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Sanjeev Kumar Gaur,Babita Upadhyay

Counsel for Opposite Party :- G.A.,Anjali

Hon’ble Ifaqat Ali Khan,J.

Heard Smt. Babita Upadhyay, learned counsel for the applicant and Sri Jitendra Rana, Advocate holding brief of Ms. Anjali, ,learned counsel for the complainant and learned A.G.A., for the State.

This Criminal Misc. Application No. 18331 of 2016 (Asha and another vs. State of U.P. And another) is moved under section 482 Cr.P.C. by the applicants with the prayer to quash the charge-sheet no. (1) of 2016 dated 12.03.2016 filed in case crime no. 10 of 2016 under section 363, 366, 376 I.P.C. And Section ¾ POCSO Act of 2012, Police Station- Sihani Gate, District- Ghaziabad and its consequential proceedings presently pending in the Court of the learned IVth Additional District and Session Judge, District- Ghaziabad.

The facts giving rise to this Criminal Misc. Application are that the respondent no. 2 Ramashish lodged the F.I.R., on 03.01.2016 at police station- Sihani Gate, District- Ghaziabad with these allegations that on 02.12.2015 at 02:00 pm Anand Kumar has enticed away Asha the 15 years old daughter of the complainant. He searched about his daughter but could not trace her out. He came to know that Dr. Lalit has cooperated the Anand in taking away of his daughter. On the basis of this FIR, case was registered and the matter was investigated after the investigation the charge-sheet was submitted against accused-applicant no. 2 Anand Kumar, Under Section 363, 366, 376 I.P.C., and ¾ POCSO Act.

This Criminal Misc. Application under section 482 Cr.P.C. is moved by the applicant Asha and Anand Kumar on this ground that the applicants are husband and wife and applicant no. 1 Asha residing with her husband applicant no. 2 Anand Kumar. The father of the applicant no.1 Smt. Asha has lodged the false and fabricated first information report because applicant no. 1 on her own free will and violation went in the company of applicant no. 2 and the applicant no. 2 did not abduct her. After running away from the house the applicant no. 1 married with applicant no. 2 on 10.11.2015 at Arya Samaj Mandir Dwarika Puri, Ghaziabad. Applicant no. 1 is 18 years old. In her statement under section 164 Cr.P.C., was correctly recorded and in which she has stated that the applicant no. 1 went with the applicant no. 2 on her own free will and violation and is living along with applicant no. 2 at his house after marriage. Applicant no. 1 was given in the custody of opposite party no. 2. Applicant no. 1 moved an affidavit before the Senior Superintendent of Police, Ghaziabad detailing the facts and that she has on his own will and volition gone away with the applicant no.2. Even then investigating Officer in an arbitrary manner without doing fair investigation filed charge-sheet under section 363, 366, 376 and ¾ POCSO Act. Therefore the charge-sheet no. 1 of 2016 be quashed.

During the proceedings of under section 482 Cr.P.C., learned counsel for the respective parties jointly stated that parties have amicably settled the dispute and in this connection they be granted liberty by this court for filing an appropriate application before the Court concerned and thereafter proceedings of the case be quashed in the light of the law laid down by the apex Court in the case of Gian Singh vs. State of Punjab (2012) 10 SCC 303. On this statement of learned counsel for the parties vide order dated 03.06.2016, this Court granted the liberty to the parties to approach the Court concerned along with the compromise application on 19.07.2016 with this direction to the Court below that in case, such an application is filed before the Court below, the court below shall proceed to ascertain the veracity of the compromise and if the said compromise is verified shall be made part of the record and the report to that effect be prepared.

In pursuant to this order parties submitted their compromise deed before the Court of Additional District And Session Judge, Court No. 8 Ghaziabad and the Additional District and Session Judge Court No. 8 Ghaziabad verified the compromise filed by the parties.

Learned A.G.A. submitted that the present charge-sheet in question is filed under section 376 IPC along with other sections and 376 IPC is a case of very serious in nature and offence of serious nature like rape cannot be decided. On the basis of the compromise of the parties whereas learned counsel for the applicants submitted that the parties are major and they have married with their consent that the charge-sheet should be quashed on the basis of the compromise between the parties.

Hon’ble Supreme Court in the ruling of Gian Singh vs. State of Punjab and another (2012) 10 SCC 303 has held that High Court while exercising its power under section 482 to quash the criminal proceedings involving non-compoundable offences in view of compromise arrived at between the parties, Nature and gravity of crime, social impact of crime in question viz-a-viz its individual impact, should be taken as decisive criterion for exercise of quashment power. Hon’ble Supreme Court also held that heinous and serious offences of mental depravity, murder, rape, dacoity, etc. or under special statutes like Prevention of Corruption Act or offences committed by public servants while working in their capacity as public servants, cannot be quashed even though victim or victim’s family and offender have settled the dispute – Such offences are not private in nature and have a serious impact on society.

Hon’ble Supreme Court in Dimpey Gujral and others vs. Union Territory through its Administrator (Union Territory Chandigarh and others) (2013) 11 SCC 497 has held that where the parties have entered into compromise and the alleged offences are not heinous offences showing extreme depravity nor are they against the society continuity of such proceedings were tantamount to abuse of process of law. In case of offences of personal nature burring them would bring about peace and amity between the two sides, in such case jurisdiction under Section 482 CrPC should be exercised.

Hon’ble Supreme Court in Narinder Singh and others vs. State of Punjab and another (2014) 6 SCC 466 has held that :- Power under Section 482 CrPC is not to be exercised in those prosecutions which involve 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. Similarly, for the offences alleged to have been committed under special statute like the 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. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 

Hon’ble Supreme Court Yogendra Yadav and others vs. State of Jharkhand and another (2014) 9 SCC 653. Hon’ble Supreme Court held that offences which involve moral turpitude, grave offences like rape murder cannot be effaced by quashing proceedings under section 482 because they have harmful effect on society and are not restricted to two individuals or group quashing of such offences may send a wrong signal to society.

From the perusal of above ruling it is clear that in a heinous offence like rape, the proceedings should not be effaced by quashing the proceedings under section 482 Cr.P.C., but in my opinion their can be two categories of the cases where allegation under section 376 I.P.C., is levelled against the applicant. In the first category there may be the cases where the offences of rape is alleged to be committed by the accused-applicant and the FIR is lodged and after lodging of the FIR or after submitting of the charge-sheet for the purpose of the defence accused-applicant solemnized marriage with the prosecutrix or entered into the compromise with the prosecutrix or her family.

In my opinion, there will be second category of cases where the FIR is lodged with the allegations of rape but even before lodging of the FIR parties have already marriage with their from consent to each other and they are major. They are living just like husband and wife and they are having physical relation as husband and wife and the offence of rape or kidnapping or abduction is not committed at all. In this case also.

In my opinion, in such second type of cases, if the parties submit the compromise even after filing the charge-sheet then the proceeding on the basis of such compromise should be quashed because it will serve the purpose of the justice.

In the present case as per medical report on the date of occurrence prosecutrix applicant no. 1 Asha was above 18 years old and in this case FIR is lodged on 03.01.2016 and on 10.12.2015 she has already solemnized the marriage with Anand Kumar in the Arya Samaj Mandir, Dwarika Puri, Gaziabad and the copy of this marriage certificate is filed. In this marriage certificate the reference no. ASMDP of 2015 / GZB is mentioned and the name of the witnesses Nisha Kumar and Sameer Pal is also mentioned as witnesses. Meaning thereby 23 days before lodging of the FIR, applicant no. 1 Asha and applicant no. 2 Anand Kumar has already solemnized marriage. When she was recovered and produced before the Magistrate. In her statement under section 164 Cr.P.C., also she has stated that on 02.12.2015 she left on her house with her own will and went to the house of Anand Kumar before leaving the house she told to her mother that she is going and her mother ousted her from the house. They are having physical relation as husband and wife.

In my opinion, when the conduct of the parties does not fall within the category of any offence under such circumstances in my opinion it will serve the purpose of the justice, if the proceedings of such case is quashed on the basis of compromise of the parties under section 482 Cr.P.C., even if the FIR is lodged with the allegations of section 376 I.P.C., as the parties have entered into the compromise and they are major and they have solemnized the marriage with her own will before lodging of the FIR. So in my opinion this Criminal Misc. Application No. 18331 of 2016 deserves to be allowed in the similar matter in this Court, in Criminal Misc. Writ Petition No. 18180 of 2016 (Smt. Poornima Shukla and Another vs. State of U.P., and three others) has quashed the proceedings on the similar grounds.

Hence, this Criminal Misc. Application No. 18331 of 2016 (Asha and others vs. State of U.P., and others) is allowed. Charge-sheet no. 1 of 2016 dated 12.03.2016 filed in case crime no. 10 of 2016 under section 363, 366, 376 I.P.C., and Section ¾ of the POCSO Act, Police Station- Sihani Gate, District- Ghaziabad and its consequential proceedings presently pending in the Court of IVth Additional District and Session Judge, District- Gaziabad are quashed, and the proceedings of case crime no. 10 of 2016 under section 363, 366, 376 IPC, and Section ¾ of POCSO Act, Police Station- Sihani Gate, District- Ghaziabad are dropped.

Order Date :- 17.11.2017

Swati

 

 

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