HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 15.10.2019
Judgment delivered on 25.11.2019
Court No. – 81
Case :- APPLICATION U/S 482 No. – 37082 of 2019
Applicant :- Dileep And 2 Ors
Opposite Party :- State Of U.P. And 2 Ors
Counsel for Applicant :- Rakesh Kumar Shukla,…
Counsel for Opposite Party :- G.A.,Rajendra Prasad
Hon’ble Dinesh Kumar Singh-I,J.
1. Heard Sri Rakesh Kumar Shukla, learned counsel for the applicants, Sri Rajendra Prasad, learned counsel for opposite party no.2, Sri G.P. Singh learned A.G.A. appearing for the State and perused the record.
2. This application under Section 482 Cr.P.C has been moved with a prayer to quash the entire proceedings of Special Case No. 85 of 2017 (State vs. Sitaram and others) arising out of Case Crime No. 347 of 2016, under section 363, 366, 376 IPC and section 3/4 of POCSO Act, P.S. Samther, District Jhansi on the basis of compromise arrived at between the parties and also a prayer is made to stay the proceedings in this case till the disposal of this application.
3. From the side of the learned counsel for the applicant it is mentioned in the affidavit filed in support of the application that the accused-applicant no. 1 and opposite party no. 3 were in love with each other. The opposite party no. 3 is an illiterate lady and has never studied in any school, however, as per her personal knowledge, she was major in the year 2016. The accused-applicant no.1 and opposite party no. 3 would to solemnize their marriage with each other after consent of the family members but the family members of opposite party no. 3 were not ready to solemnize the marriage, hence the opposite party no. 3 left her parents’ house of her own free will, where-after the opposite party no. 2 had lodged FIR against the applicants on 21.10.2016 which has been registered as Case Crime No. 347 of 2016 under section 363, 376, 506 IPC and section 8 of POCSO Act, P.S. Samther, District Jhansi. Pursuant to the said FIR, police recovered the opposite party no. 3 on 26.10.2016 and was given in custody of her parents and due to being in custody of her parents, under coercion of her parents, she has given statement under section 164 Cr.P.C. against the applicants but even in that statement she has not made any allegation of rape against the applicant. But despite that the police has filed charge-sheet against the applicant no.1 on 24.01.2017 and against the accused applicant nos. 2 and 3 on 31.03.2017 under sections 363, 376 IPC and section 8 POCSO Act. Later on in the year 2018, the family members of the applicants as well as the family members of the opposite party nos. 2 and 3 were ready to solemnize the marriage of the opposite party no. 3 with the applicant no.1 and accordingly, the same was solemnized in Shiva Adarsh Vivah Samiti, Rani Luxmi Bai Nagar on 12.4.2018, regarding which marriage certificate has been issued by the said institution on the same day, which is annexed as Annexure-4.Thereafter, the opposite party nos. 2 and 3 and the applicants entered into a compromise on 09.07.2019 to the effect that the opposite party nos. 2 and 3 do not want to pursue the criminal case against the applicants and would withdraw the said case, a compromise deed dated 09.07.2019 is annexed as Annexure-6. The trial court has taken cognizance over the charge-sheet because offence has been committed and bears Special Case No.85 of 2017 State vs. Sita Ram and others and till date no witness has been examined, which is revealed from the order sheet, copy of which is annexed as Annexure-7. Due to the compromise, there is no need to proceed further in this case as the applicant no. 1 and opposite party no. 3 are living happily as husband and wife and both the opposite party nos. 2 and 3 did not want to contest this case and therefore it was prayed that the proceedings of the case should be quashed.
4. From the side of opposite party no. 2, short counter affidavit has been filed on 14.10.2019, in paragraph no. 6 of the said affidavit, it has been mentioned by her that keeping the wishes of her daughter i.e. the opposite party no.3, the opposite party no. 2 later on became ready to solemnize the marriage of opposite party no. 3 with the accused-applicant no. 1 and with the interference of some respective family members of both the sides, marriage was performed on 12.04.2018 and further it is mentioned that she does not want to press the Special Case No. 85 of 2017 which is proceeding before the trial court under the abovementioned sections. The opposite party no. 3 has also filed short counter affidavit dated 14.10.2019 in which she has stated that the opposite party no. 3 is her mother and that due to being in love with the accused-applicant no. 1, she wanted to solemnize the marriage with him but the same was being opposed by the opposite party no. 2. Thereafter, opposite party no. 3 left her parental house by which opposite party no. 2 became annoyed and got the FIR registered against the accused-applicant on 21.10.2016. Both she as well as her mother have given wrong statement before the court below under section 164 Cr.P.C. Subsequently, the opposite party no. 2 became ready to solemnize her marriage with the accused-applicant no.1. Pursuant to which their marriage was performed on 12.04.2018 and now they are residing happily as husband and wife. She as well as opposite party no. 2 have entered into a compromise with the applicants on 09.07.2019, which is annexed as Annexure-1 to the short counter affidavit and that she does not want to press the Special Case No. 85 of 2017.
5. Learned counsel for the applicant has relied upon the judgment of Keral High Court passed in the case of Ashiq vs. State of Kerala 2019 2 KLT 1130, paragraph nos. 4 and 5 of this judgment which are as follows:
“4. It is by now well settled that grave and serious offences as the one under Sec.376 (rape) of the I.P.C. cannot be the subject matter of quashment of the impugned criminal proceedings on the ground of settlement between the accused and the victim. (see Shimbhu v. State of Haryana, [(2014) 13 SCC 318],Parbatbhai Aahir v. State of Gujarat, [(2017) 9 SCC 641], Anita Maria Dias v.State of Maharashtra, [(2018) 3 SCC 290], Sebastian @ Solly v. State of Kerala, [(2015) 1 KLJ 384). However, this Court has held in various decisions including the one as inFreddy @ Antony Francis v. State of Kerala, [2017 KHC 344 2018 (1) KLD 558) that the exception to the above approach could be in cases where the accused has married the defacto complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the defacto complainant/victim, to ensure her better future life, it is only just and proper that this Court in exercise of the extra ordinary inherent powers under Sec.482 of the Cr.P.C. could quash the impugned criminal proceedings on the ground of settlement between the parties in cases where the accused has married the defacto complainant and the defacto complainant is insisting for quashment of the impugned criminal proceedings, etc.”
“5. In the light of the abovesaid aspects, more particularly in the light of the submission made by the 2nd respondent, this Court is inclined to consider the plea for quashment of impugned criminal proceedings as otherwise it will detrimentally affect the family life of 2nd respondent (victim), and even the balance and harmony that could be achieved by them in the resolution of disputes that again be irrecoverably lost . It is in the light of these aspects that all further proceedings in the impugned Anx.A-1 final report/charge sheet filed in Crime No. 734/2014 of Binanipuram Police Station, which has now led to the institution of S.C. No. 533/2015 on the file of the Addl. Sessions Court (For the trial of cases relating to atrocities and sexual violation against women and children), Ernakulam, and all further proceedings taken in pursuance thereof against the petitioner (accused) will stand quashed. The petitioner will produce a certified copy of this order before the Sessions Court concerned and before the Investigating Officer concerned for necessary information.”
6. Further, reliance has been placed by the learned counsel for the applicants on the judgment of Kerala High Court in the case of Freddy @ Antony Francis and others vs. State of Kerala, represented by the Public Prosecutor and others, 2018 1 KLD 558, paragraph nos. 7, 8 and 9 of which are as follows:
“7.The legal position with regard to quashing of proceedings on the basis of compromise between the parties is by now well settled. It has been held that 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 S.320 of the Code. In what cases power to quash the criminal proceeding or complaint or FIR 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 Court will have to give due regard to the nature and gravity of the crime. It is also settled that heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot quashed even though the victim or victim’s family and the offender have settled the dispute. Such offenses are not private in nature and have serious impact on society. The directions of the Apex Court in Gian Singh v. State of Punjab [(2012) 10 SCC 303] and in Narinder Singh v. State of Punjab[(2014) 6 SCC 466] serve as guiding lights.”
8. In so far as the offence of rape is concerned, there cannot be any doubt that the same cannot be settled on the strength of a compromise arrived at between the victim and the accused. The Apex Court in State of M.P. v. Madan Lal((2015) 7 SCC 681), relying on the decision in Shimbhu v. State of Haryana ((2014) 13 SCC 318) has clearly reminded the Courts that rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. This was because of the fact that the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In such cases, the accused may use all his influence to pressurise the victim for a compromise. It was taking note of this aspect that it was held that it would not be safe in considering the compromise arrived at between the parties in rape cases. In Madan Lal (supra) the Apex Court was hearing an appeal filed by the State against the Judgement of the High Court by which the conviction arrived at by the Trial Court was set aside on the basis of a compromise arrived at between the victim and the accused.”
“9. It is borne out from the statement recorded by the Sub Inspector of Police of the 2nd petitioner that the parties were in love and the Crime was registered when the 2nd petitioner was under the impression that the 1st petitioner would resile from his earlier promise. However, in view of the subsequent turn of events, she has realized that her apprehension was baseless. The parties are living together as husband and wife. There is no case for anyone that the dignity of the 2nd petitioner was violated by a wanton act of the 1st petitioner. This is not one of those cases wherein the allegations reek of extreme depravity, perversity or cruelty. It cannot be said that the offence in the instant case would fall in the category of offences that have a serious impact on society. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 2nd petitioner, if the prosecution is permitted to continue. When the 2nd petitioner has asserted that she is not desirous of prosecuting her husband any further, the prospects of an ultimate conviction is remote and bleak. Further more, the 2nd petitioner can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that this is a fit case in which this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings.”
7. On the other hand, learned A.G.A. has vehemently opposed the prayer for quashing of the proceedings and has also drawn the attention of the Court to the judgment of Apex Court rendered in Independent Thought vs. Union of India and another, (2017) 10 SCC 800, paragraph nos. 1 and 107 of which are as under:
“1.The issue before us is a limited but one of considerable public importance ? whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Penal Code, 1860 (IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The Exception carved out in IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil.”
“107. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is? This does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC? in the present case W.P. (C) No. 382 of 2013 Page 68 this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years ? this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC ? this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus.”
8. It is also argued by the learned A.G.A. that as per FIR, the victim is below 18 years of age and hence she would be treated a child and therefore, the offence under section ¾ POCSO Act would stand made out apart from offence under section 376 IPC in view of position of law.
9. It is further argued by the learned A.G.A. that in the statement under section 164 Cr.P.C., which is annexed at page 28 of the paper book, she herself has stated her age to be 16 years, hence admittedly she was minor on the date of occurrence and she has further stated therein that in the night of 14.10.2016 at about 1.00-2.00 A.M. accused-applicant nos. 1, 2 and 3 came to her house and had forcibly taken her away after shutting her sister in a room and thereafter all of them had taken her to the house of Nata where she was kept in a room and she lived there for about 12 days. On 26.10.2016 the family members of the accused-applicant no. 1 had taken her away to Sharda temple, Moth and when they all were standing near the said temple, the police came there and took her away along with her family members to Police Station. Drawing the attention of the said statement made under section 164 Cr.P.C., it is argued by the learned A.G.A. that she has supported the prosecution version as given in the FIR and subsequently it is admitted by the applicants that she has married the accused-applicant no. 1 which is not permissible under law the victim being minor.
10. As regards compromise for offence under section 376 IPC, law laid-down by Supreme Court in Gian 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 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 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.”
11. The benefit of Ashiq’s case (Supra), Freddy @ Antony Francis’s case (Supra) may not be given due to the provisions of law cited above in Gian Singh’s case (Supra) and Independent thought’s case (Supra), which are the judgments of Hon’ble Supreme Court.
12. In the present case, since the allegation made against the accused-applicant no. 1 is that of committing rape upon the victim as she being a minor and any physical relationship with the victim would fall in the category of rape in view of law cited above in Independent thought case. At this stage, it cannot be said that the offence alleged against the accused-applicant no. 1 is not made out prima-facie. The role of the other co-accused was also to the extent of having cooperated in the commission of the said offence. This Court does not deem it proper to make any interference in this case under inherent jurisdiction to quash the proceedings.
13. In view of the above, the application deserves to be dismissed and is accordingly dismissed.
14. However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed of without being influenced by the observation made by this Court.
15. The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused-applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.