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Bhurra vs State Of U.P. And Another on 20 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 31387 of 2019

Applicant :- Bhurra

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

Counsel for Applicant :- Pankaj Satsangi

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

A compromise affidavit along with vakalatnama of Sri Mahesh Kumar Kuntal on behalf of opposite party no.2 has been filed which is taken on record.

Heard Sri Pankaj Satsangi, learned counsel for the applicant, Sri Mahesh Kumar Kuntal, learned counsel for opposite party no. 2, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.

This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge-sheet no. 1 of 2019 dated 01.04.2019 in connection with Case No.9532 of 2019 (State vs. Bhurra) arising out of Case Crime No. 515 of 2018 under Sectionsection 376, Section506 IPC, Police Station Goverdhan, District Mathura and also a prayer is made to stay the proceedings in this case till the disposal of this application.

It is argued by the learned counsel for the applicant that the accused-applicant has been falsely implicated by the opposite party no. 2. Compromise has taken place between both the parties, hence charge-sheet alongwith entire criminal proceedings need to be quashed, same being malicious prosecution.

Learned A.G.A. has vehemently opposed the prayer for quashing of the charge sheet and has drawn the attention of the Court to the proposition of law laid down by Supreme Court of in Gian Singh.

I have gone through the FIR. In the FIR, the opposite party no. 2 has stated that on 09.09.2018 at 7.00 P.M. when she was standing in front of the house of village Pradhan, the accused came there on a motorcycle and had told her that he would get the name of her son deleted from among accused and had enticed her away to Gathauli Marg near a bridge and there he had shown her his pistol and gave threat to her life. He started forcibly taking off her clothes and she was taken in a jungle where he committed rape upon her. In the statement recorded under Sectionsections 161/Section164 Cr.P.C., she has supported the prosecution version as given in the FIR. The police after investigation in the matter, has submitted charge sheet after recording the statement of as many as seven witnesses. The veracity of the said witnesses cannot be tested in proceedings u/s 482 Cr.P.C.

From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 SectionCr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon’ble Supreme Court in cases of SectionR. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.

The prayer for quashing the proceedings of the aforesaid case is refused.

As regards compromise for offence under Sectionsection 376 IPC, law laid-down by Supreme Court in SectionGian Singh vs. State of Punjab and another, 2012(10) SCC 303 specifically bars any compromise even if the parties have settled the matter which is quoted herein below.

“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 F.I.R may be exercised where the offender and 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like SectionPrevention 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 pre-dominatingly civil flavour stand on 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 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 affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

However, the applicant may approach the trial court to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with law. The committal court shall commit the case within 30 days subject to compliance of provision of section 209 Cr.P/C. to facilitate the trial court to hear and dispose of discharge application.

The applicant may appear before committal court within 30 days to get his case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 30 days from the date of order, no coercive action shall be taken. But if the accused does not appear before the Committal court, the said court shall take coercive steps to procure his attendance.

With the aforesaid direction, this application is disposed of.

Order Date :- 20.8.2019

AU

 

 

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