Raj Karan Raidas vs State Of U.P. And 3 Others
2023 Latest Caselaw 12675 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- APPLICATION U/S 482 No. - 14712 of 2023
 

 
Applicant :- Raj Karan Raidas
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Babban Singh Rathore
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri Babban Singh Rathore, learned counsel for the applicant, Sri Siddharth Baghel, learned brief holder for the State and perused the record.

3. This application under Section 482 Cr.P.C. has been filed by the applicant Raj Karan Raidas with the prayer to quash the entire proceeding of Special Session Trial No. 64 of 2014 (State Vs. Raj Karan Raidas) arising out of Case Crime No. 152 of 2014, under Sections 376, 506 IPC and Section 3/4 POCSO Act, Police Station Malwan, District Fatehpur, pending in the court of Special Judge, POCSO Act/Additional Sessions Judge, Court No.4, Fatehpur and with a further prayer to stay the further proceedings of the aforesaid case, during the pendency of the present application.

4. Learned counsel for the applicant argued that according to radiological examination report, the age of the victim girl was aged about 19 years and as such she was a major girl as stated in para 7 of the affidavit. It is argued that the matter is of a consensual relationship between the applicant and the victim. It is further argued that the applicant and victim are living as husband and wife and they are leading a happy married life and from their wedlock three children were born. It is argued while placing para 13 and annexure 4 to the affidavit that victim/wife of the applicant wants to withdraw the aforesaid case for which victim moved an application dated 11.07.2018 before the concerned trial court expressing her desire not to carry on the criminal proceedings against the applicant. It is argued that as such the present proceedings be quashed.

5. Learned counsel for the opposite party no.4 has supported the arguments of learned counsel for the applicant.

6. Per contra, learned counsel for the State vehemently opposed the prayer for quashing. It is argued that quashing of the proceedings of the present case is not permissible under law. The quashing of proceedings on the basis of compromise and settlement cannot be considered in the present matter. It is argued that the present petition be dismissed.

7. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is an accused in the present matter. The case is under sections which are mainly non compoundable. The Apex Court in the case of Rathish Babu Unnikrishnan v. State (NCT of Delhi) : 2022 SCC OnLine SC 513 in para nos.16, 17 and 18 has held as under:-

"16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as to altogether disprove the allegations made in the complaint.

17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption.

18. Situated thus, to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited."

8. Further, the Apex Court in the case of Narinder Singh and others vs. State of Punjab and another : (2014) 6 SCC 466 has held that the matter under Section 376 I.P.C. is also such an offence, which, though committed in respect of a particular victim, cannot be termed to be a private dispute between the parties. It has serious adverse societal effect. Therefore, any proceeding on the basis of alleged compromise of the accused vis-a-vis the victim cannot be quashed.

9. Further, the Apex Court in State of Madhya Pradesh vs. Madanlal : (2015) 7 SCC 681 while repelling the acquittal on the basis of compromise in the matter pertaining to Sections 376 read with 511 I.P.C., has placed reliance upon principles laid down by three-Judge Bench in Shimbhu vs. State of Haryana : (2014) 13 SCC 318.

10. Further, the Apex Court in Daxaben vs. State of Gujarat and others : 2022 SCC OnLine SC 936 the Hon'ble Apex Court in paragraphs No. 34, 38, 47 and 49 has held as under:-

"34. In Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, this Court observed:--

"46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained."

38. However, before exercising its power under Section 482 of the Cr.P.C. to quash an FIR, criminal complaint and/or criminal proceedings, the High Court, as observed above, has to be circumspect and have due regard to the nature and gravity of the offence. Heinous or serious crimes, which are not private in nature and have a serious impact on society cannot be quashed on the basis of a compromise between the offender and the complainant and/or the victim. Crimes like murder, rape, burglary, dacoity and even abetment to commit suicide are neither private nor civil in nature. Such crimes are against the society. In no circumstances can prosecution be quashed on compromise, when the offence is serious and grave and falls within the ambit of crime against society.

47. In State of Madhya Pradesh v. Laxmi Narayan, (2019) 5 SCC 688, a three-Judge Bench discussed the earlier judgments of this Court and laid down the following principles:--

"15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

15.1. That 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;

15.4. Offences under Section 307 IPC and the Arms Act, etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge-sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [(2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of noncompoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc."

(emphasis supplied)

49. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence."

11. A coordinate Bench of this Court in Application U/s 482 No. 8514 of 2023 (Om Prakash vs. State of U.P. and another) has also held that the criminal proceedings under Section 376 I.P.C. and POCSO Act cannot be quashed on the basis of compromise entered into between the accused and the victim. Identically in another Crl. Misc. Application 482 No. 2941 of 2023 (Pravin Kumar Singh @ Pravin Kumar and 2 others Vs. State of U.P. and another) it has been held that criminal proceedings in cases pertaining to sexual offences cannot be quashed.

12. After having regard to the facts of the case and the legal position as enumerated above, the present case cannot be quashed on the basis of compromise between the parties as the same pertains to sexual offence.

13. The present application thus lacks merit and is dismissed.

Order Date :- 25.4.2023

M. ARIF

(Samit Gopal, J.)