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Ishtiyak Ali Alias Ishtkaar vs State Of Uttarakhand & Others on 16 September, 2019

IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL

Crl. Misc. Application (C-482) No.1680 of 2018

With

Compounding Application (CRMA No.11036 of 2018)

Ishtiyak Ali Alias Ishtkaar ….Applicant

Versus

State of Uttarakhand others …. Respondents

Mr. P.C. Petshali, learned Advocate for the applicant.
Mr. Lalit Miglani, learned Brief Holder for the State.
Mr. Kaushal Sah Jagati, learned Advocate for respondent no.3.

Hon’ble R.C. Khulbe, J.

By way of present application, moved
under Section 482 of Cr.P.C. the applicant seeks
to quash the charge sheet dated 27.02.2018,
cognizance order dated 12.03.2018 and entire
proceedings of Special Sessions Trial No.319 of
2018 pending before FTC/ Additional Sessions
Judge/ Special Judge (POCSO), Udham Singh
Nagar, State Vs. Ishtiyak Ali alias Ishtkaar, under
Sections 363, Section366 Section376 IPC and Section 5/Section6 of
the Protection of Children from Sexual Offences
Act, 2012 (POCSO) Section 3(1)(xii) of the
Scheduled Castes and the SectionScheduled Tribes
(Prevention of Atrocities) Act, 1989 in terms of
compromise arrived between the parties.

2. The parties have filed a Compounding
Application no. 11036 of 2018 to show that the
parties have buried their differences and have
settled their disputes amicably.

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3. Notices were issued to informant
Chaman Singh (informant) but despite personal
service he did not turn up before this Court. The
applicant and the respondent no.3 has solemnized
marriage as per Muslims rites on 27.10.2018. The
marriage Certificate is on record. At the time of
marriage respondent no.3 was more than 17 years
11 months. Today both applicant and respondent
no.3 are present and stated that both are living as
husband and wife. There is no dispute between
them. Apart from that as per FIR, there is no
allegation regarding Section 376 IPC and Section
3(1)(xii) of the Scheduled Castes and the SectionScheduled
Tribes (Prevention of Atrocities) Act, 1989.

4. It is contended by learned counsel for
the State that the offences punishable under
Sections 363, Section366 Section376 IPC and Section 5/Section6 of the
Protection of Children from Sexual Offences Act,
2012 (POCSO) Section 3(1)(xii) of the Scheduled
Caste and the SectionScheduled Tribes (Prevention of
Atrocities) Act, 1989 are not compoundable
offences.

5. The Apex Court has dealt with the
consequence of a compromise in regard to non-
compoundable offences in the case of SectionB.S.Joshi
and others vs. State of Haryana and another,
(2003)4 SCC 675 and has held as below

“If for the purpose of securing the ends of justice,
quashing of FIR becomes necessary, Section 320
Cr.P.C. would not be a bar to the exercise of power of
quashing. It is, however, a different matter depending
upon the facts and circumstances of each case whether
to exercise or not such a power.”

Thus, the High Court, in exercise of
its inherent power can quash criminal

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proceedings or FIR or complaint and
Section 320 of Cr.P.C. does not limit or
affect the powers under Section 482 of the
Code of Criminal Procedure, 1973.

6. Hon’ble Supreme Court has permitted
compounding of such offences in the decision of
SectionNikhil Merchant v. CBI and another, (2008) 9
SCC 650.

7. Learned counsel for the parties also
drew the attention of this Court towards the
ruling of SectionGian Singh v. State of Punjab and
another, (2013) 1 SCC (Cri) 160, in which
Hon’ble Supreme Court observed as below:

“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

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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.”

8. Parties are present before this Court
and duly identified by their respective counsel.

9. Although the offences punishable
under Sections 363, Section366 Section376 IPC and Section
5/Section6 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO) Section 3(1)(xii) of
the Scheduled Caste and the SectionScheduled Tribes
(Prevention of Atrocities) Act, 1989 are not
compoundable but considering the fact that the
offences punishable under Sections under
Sections 376 IPC and Section 3(1)(xii) of the

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Scheduled Caste and the SectionScheduled Tribes
(Prevention of Atrocities) Act, 1989 are not made
out; husband and wife are living together and also
the fact that respondent no.3 has filed an affidavit
stating that the matter has been settled amicably
between the parties, it would be just and
appropriate to allow the present compounding
applications in the interest of justice.

10. Accordingly, the compounding
application is allowed. The entire proceedings of
Special Sessions Trial No.319 of 2018 pending
before FTC/ Additional Sessions Judge/ Special
Judge (POCSO), Udham Singh Nagar, State Vs.
Ishtiyak Ali alias Ishtkaar, under Sections 363,
Section366 Section376 IPC and Section 5/Section6 of the Protection
of Children from Sexual Offences Act, 2012
(POCSO) Section 3(1)(xii) of the Scheduled
Caste and the SectionScheduled Tribes (Prevention of
Atrocities) Act, 1989 along with charge sheet
dated 27.02.2018, cognizance order dated
12.03.2018 is hereby quashed, qua the present
applicant only, on the basis of compromise
arrived between the parties.

11. Present C482 application stands
disposed of, as above.

12. Pending applications, if any, also stand
disposed of accordingly.

(R.C. Khulbe, J.)
Dt. September 16, 2019
Sukhbant

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