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Bhuvnesh vs State Of Up And Anr on 26 September, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. – 2023:AHC:186755

Court No. – 93

Case :- APPLICATION U/S 482 No. – 43312 of 2018

Applicant :- Bhuvnesh

Opposite Party :- State Of Up And Anr

Counsel for Applicant :- Mohammad Zakir

Counsel for Opposite Party :- G.A.,Archna Singh Jadaun,Santosh Kumar Pandey

Hon’ble Arun Kumar Singh Deshwal,J.

1. Heard Sri Mohammad Zakir, learned counsel for the applicant and Ms Ruchi Mishra, learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 01.09.2018 as well as entire proceedings against the applicant in S.T. No.462 of 2018 (State Vs Bhuvnesh), in Case Crime No.0103 of 2018, under Sections-363, 366, 506, 376 IPC, 3/4 POCSO Act and 3(2)(V) SC/ST Act, Police Station-Dibai, District-Bulandshahr, pending in the court of Additional District and Sessions Judge, VIIIth Special Judge (POCSO Act), Bulandshahr.

3. Contention of learned counsel for the applicant is that daughter of opposite party no.2, who was victim in this case was major at the time of incident and now both of them willingly married with the consent of opposite party no.2 and now both of them have been living together as husband and wife and both of them have also been blessed with a child out of their wedlock. Now on the basis of compromise between the applicant and opposite party no.2, applicant seeks to quash the impugned proceeding. This court vide order dated 17.11.2021, directed the court below to verify the compromise between the parties and transmit its copy to this Court. In pursuance of the order dated 17.11.2021, Additional District and Sessions Judge, VIIIth Special Judge (POCSO Act), Bulandshahr submitted his report dated 07.04.2022 mentioning the fact that compromise between the parties has been verified on 25.03.2022 and along with this report, a copy of the verified compromise as well as affidavit of opposite party no.2 has been annexed.

4. From perusal of record, it also appears that under Section-164 Cr.P.C., the victim Manisha @ Monika Kumari has stated that she willingly moved away with the applicant and got married to him. It was further stated that the actual date of birth is 01.01.1999 but it has been incorrectly mentioned in his school certificate as 2001, therefore, radiological examination of the girl was also conducted to determine her age. As per the report of radiological examination, the age of girl was found to be above 18 years.

5. Hon’ble Apex Court in the case of Gian Singh Vs. State of Punjab Another; (2012) 10 SCC 303, in paragraph No. 61 of the judgement, observed as under:-

“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 the 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 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 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 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.”

6. Hon’ble Apex Court in the case of State of M.P. Vs. Laxmi Narayan; (2019) 5 SCC 688, observed as under:-

“15.1. 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;

15.2. 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;

15.3 similarly, such power is not to be exercised for the offences under the special statutes 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.”

7. This Court in the case of Fakhre Alam @ Shozil Vs. State of U.P. and 3 Others decided on 06.06.2023 in Application u/s 482 No.41580 of 2022, after considering the several judgements of Apex Court held that when from the perusal of the record, no case under Section 376 IPC and POCSO Act is made out in that case proceeding can be quashed on the basis of compromise between the parties.

8. Considering the aforesaid fact that compromise between the parties have already been verified and applicant and victim has been residing as husband and wife and no case of POCSO Act, is made, therefore, in view of the law laid down by the Apex Court in Gian Singh Vs. State of Punjab Another (2012) 10 SCC 303, Narinder Singh Others Vs. State of Punjab Another (2014) 6 SCC 477, State of M.P. Vs. Laxmi Narayan, (2019) 5 SCC 688 and State of M.P. Vs. Dhruv Gurjar, AIR 2017 SC 1106 as well as the judgement of Fakhre Alam @ Shozil Vs. State of U.P. and 3 Others of this Court decided on 06.06.2023 in Application u/s 482 No.41580 of 2022, the proceeding of Case Crime No.0103 of 2018, under Sections-363, 366, 506, 376 IPC, 3/4 POCSO Act and 3(2)(V) SC/ST Act, Police Station-Dibai, District-Bulandshahr, pending in the court of Additional District and Sessions Judge, VIIIth Special Judge (POCSO Act), Bulandshahr, is hereby quashed.

9. With the aforesaid direction, the present application is allowed.

Order Date :- 26.9.2023

S.Chaurasia

 

 

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