Bharatkumar S. Gupta vs The State Of Maharashtra And Anr
2016 Latest Caselaw 3453 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATEJURISDICTION




                                                                          
                       CRIMINAL APPLICATION NO.666 OF 2016




                                                  
            Bharatkumar S. Gupta
            Age 35 years, Occ. Service,
            Residing at Plot No.224, Sector 5,
            Ghansoli, Koparkhairne,




                                                 
            Navi Mumbai - 400 701.                   ..... Applicant

                    V/s




                                       
    1       The State of Maharashtra
            through the Senior Police Inspector
                                 
            Koparkhairane Police Station
            Koparkhairane, Navi Mumbai.

    2       Upendrakumar Chattu Gupta
                                
            Age 27 years, Occ. Nil.
            Row house, Plot No.204, Sector 5,
            Ghansoli, Navi Mumbai - 400 701.         ..... Respondents
      


    Mr. Nitesh Bhutekar a/w Mr. Manoj Shirsat, Mr. Vijay Dighe, Mr. Ayodhya
    Patki for the Applicant.
   



    Dr. F.R. Shaikh, APP for the Respondent No.1/State.
    Mr. Sachin Chandan for the Respondent No.2.

                                       CORAM : A.S. OKA &





                                                  A.A. SAYED, JJ.

DATED : 29 JUNE 2016

ORAL JUDGMENT (PER A.S. OKA, J.):

1 Heard the learned Counsel appearing for the Applicant and the

learned Counsel appearing for the second Respondent. This Application

was argued yesterday. To enable the learned Counsel appearing for the

Applicant to make further submissions, the Application was kept back till

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the afternoon session yesterday. On the request made by the learned

Counsel appearing for the parties, we again granted time till today. We

have heard further submissions.

2 The prayer in this Application is for quashing the criminal case on

the basis of the First Information Report registered at the instance of the

second Respondent for the offence punishable under section 377 and

other sections of the Indian Penal Code. It is not in dispute that on

completion of the investigation, charge-sheet has been filed by the police

for various offences including the offence punishable under section 377

of the Indian Penal Code. It is also not in dispute that the present

Applicant filed Criminal Writ Petition No.3858 of 2013 in this Court for

quashing the proceedings of the impugned First Information Report and

on 17 December 2013, the Petition was withdrawn with liberty to raise all

contentions before the Competent Court at appropriate stage.

3 This is an Application filed invoking powers of this Court under

section 482 of the Code of Criminal Procedure, 1973 (for short "CrPC").

From the averments made in the Application and from the submissions

made across the bar, the contention of the Applicant is that now there is

a settlement between the Applicant and the first informant which is

reflected from the Affidavit dated 14 June 2016 filed by the second

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Respondent. The learned Counsel appearing for the Applicant relies

upon a decision of a learned Single Judge of Uttarakhand High Court in

the case of Vijay Gupta and others vs. State of Uttarakhand and

others1. Today, the learned Counsel appearing for the Applicant tenders

across the bar a draft amendment by which he seeks to incorporate a

prayer for declaring section 377 of the Indian Penal Code as

unconstitutional being violative of Article 20 of the Constitution of India.

The draft amendment is taken on record and marked "X" for

identification.

4 Today, the submission of the learned Counsel appearing for the

Applicant and the learned Counsel appearing for the second Respondent

is that if there is no real possibility of conviction, only on that ground, this

Court should exercise the power under section 482 of CrPC of quashing

the offences.

5 Firstly, we deal with the draft amendment tendered across the bar.

A Division Bench of Delhi High Court by judgment and order dated 2 July

2009 declared section 377 of the Indian Penal Code to be violative of

Articles 14, 15 and 21 of the Constitution of India. The said decision was

subject matter of challenge before the Apex Court in the case of Suresh

1 Criminal Writ Petition No.516 of 2014 decided on 13 May 2014

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Kumar Koushal and another vs. NAZ Foundation and others2. The

Apex Court by its decision proceeded to set aside the decision of the

Delhi High Court. Paragraph 56 of the said decision reads thus:

"56. While parting with the case, we would like to make it clear that this Court has merely pronounced on the

correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity.

Notwithstanding this verdict, the competent legislature shall

be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General."

(underline supplied)

6 Therefore, in so many words, the Apex Court has held that section

377 of the Indian Penal Code does not suffer from any constitutional

infirmity. So long as the said binding precedent of the Apex Court stands,

it is not open for any litigant to agitate before this Court that section 377

of the Indian Penal Code is unconstitutional because a particular

submission or a particular contention was not considered by the Apex

Court. Therefore, we cannot permit the Applicant to amend this

Application for incorporating a challenge to the constitutional validity of

section 377 of the Indian Penal Code. There is a binding decision of the

Apex Court which holds that the section does not suffer from any

constitutional infirmity.

2 AIR 2014 SC 563

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7 As far as the powers of this Court under section 482 of CrPC to

quash offences in cases which are non-compoundable on the ground of

mutual settlement is concerned, the law is laid down by the Apex Court in

the case of Gian Singh vs. State of Punjab & Another 3. The Apex

Court in so many words has held that this Court in exercise of its extra-

ordinary jurisdiction under section 482 of CrPC can quash First

Information Report or criminal proceedings in non-compoundable cases

on the basis of settlement between the victim of the offence and the

alleged offender. The Apex Court held that the powers under section 320

of CrPC and section 482 of CrPC are distinct and separate though the

ultimate consequence may be the same. What is material is paragraph

61 of the said decision which reads thus:

"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

3 (2012) 10 SCC 203

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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 a 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 predominatingly 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 victim,

the possibility of conviction is remote and bleak and continuation of the 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

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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 the 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."

(underline supplied)

The Apex Court has held that in case of the first category of

offences, the power to quash the offences under section 482 of CrPC

should not be exercised even on the basis of a settlement. In the second

category of cases, the Apex Court held that the power can be exercised

after the Court is satisfied on following aspects:

i) Because of the compromise between the offender and the victim,

the possibility of conviction is remote and bleak; and

ii) Continuation of the criminal case would put the accused to great

oppression as well as 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.

9 Therefore, firstly, there has to be a compromise between the

offender and the victim. The High Court will have to satisfy itself that

there is such a compromise. The nature of the compromise and

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particulars thereof should be reflected on record. Mere statement that

there is a compromise cannot be accepted by the Court. Only after the

Court is satisfied that there is such a compromise in a case covered by

the second category specified in paragraph 61, the Court will have to

consider the other aspects namely, whether possibility of conviction is

remote and bleak and whether continuation of criminal case would put

the accused to great oppression. In a case where there is no settlement

or where the settlement is in a case of heinous or serious crime, only on

the ground that the first informant and witnesses are not willing to

support the prosecution, and therefore, the possibility of conviction is

remote and bleak, the power under section 482 of CrPC cannot be

exercised. The power under section 482 of CrPC can be used very

sparingly and in rare cases. If High Court quashes a case only on the

ground that there is no possibility of conviction or the victim may not

support prosecution, invoking power of this Court on this ground will be

itself abuse of process of law.

10 Firstly, it is not possible for us to accept that the present case will

fall in the second category. So long as the legislature does not step in, it

is not possible to accept the contention that the offence governed by

section 377 of the Indian Penal Code is not a serious offence

and that it will not have any impact on the society. We must also note

here that an offence under section 377 of the Indian Penal Code is

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punishable with imprisonment for life or with imprisonment of either

description for a term which may extend to 10 years. Therefore, even in

case of a genuine settlement, it will not be open for this Court to exercise

the power under section 482 of CrPC in case of an offence punishable

under section 377 of the Indian Penal Code only on the ground of

settlement. In a given case, it can be done on merits.

11 Even assuming that the case will fall in the second category, it will

have to be established before the Court that there is a complete

settlement between the victim and offender. Therefore, the Court is

entitled to know the particulars of the settlement. In the Affidavit of the

second Respondent, there is only a bald statement that the dispute with

the Applicant has been settled. Unless the Court is satisfied that there is

a settlement within four corners of law between the offender and the

victim, the law led down by the Apex Court in the case of Gian Singh vs.

State of Punjab & Another will not apply. Only on the basis of a bald

statement of the first informant or victim that there is a settlement, the

power under section 482 of CrPC cannot be exercised. This Court has to

be satisfied that there is a settlement. If this Court starts accepting bald

statements about the settlement of the dispute between the victim and

the offender without satisfying itself about the genuineness of the

settlement, in a case where charge-sheet is filed, virtually a choice will

be available to the first informant to come to the High Court and seek

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quashing of the offences as per his whims and convenience. What the

Apex Court has held is that offences which are not serious offences and

which are having pre-dominatingly civil flavour or offences arising out of

mercantile or matrimonial disputes can be quashed, provided there is a

settlement between the offender and the victim. Only because at a

certain stage the first informant feels that he does not want to prosecute

the case, the power under section 482 of CrPC cannot be exercised.

Even in case of offences arising out of matrimonial disputes, before

exercising power of quashing on the ground of compromise, this Court

has to satisfy itself that in fact there is such a complete compromise of

matrimonial dispute. In the present case, we cannot take bald statement

of the first informant for its face value in absence of any particulars of

settlement.

12 Reliance placed by the learned Counsel appearing for the

Applicant on the decision of the Uttarakhand High Court will not help him

for more than one reason. Firstly, the dispute was between the husband

and wife wherein offence was registered at the instance of wife alleging

commission of offences punishable under sections 498-A and 377 of the

Indian Penal Code. This was a case where there was a complete

settlement of the matrimonial dispute and that is why the learned Judge

of the Uttarakhand High Court followed the law laid down in the case of

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Gian Singh vs. State of Punjab & Another. We must note here that

even the subsequent decision of the Apex Court in the case of Narinder

Singh & Ors. vs. State of Punjab & Anr. 4 does not make a departure

from the law laid down in the case of Gian Singh vs. State of Punjab

and Another.

13 It is sought to be pointed out that the larger Bench of the Apex

Court may reconsider its view in the case of Suresh Kumar Koushal

and another vs. NAZ Foundation and others. In case of that

eventuality of the Apex Court holding section 377 of the Indian Penal

Code as unconstitutional, obviously the prosecution will not survive.

14 Lastly, after making the submissions, the learned Counsel

appearing for the Applicant made an attempt to seek leave to withdraw

the Application. We must note here that we have heard the submissions

in some detail and at this stage, we cannot permit the Applicant to

withdraw the Application.

15 Accordingly, there is no merit in the Application and the same is

rejected. We, however, make it clear that no adjudication is made on the

merits of the controversy and observations made by this Court regarding

the nature of offence are only for the limited purposes of considering the

4 (2014) 6 SCC 466

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prayer for quashing on the basis of alleged settlement. None of these

observations shall be construed as any observation which will influence

the trial Court during the trial.

                       (A.A. SAYED, J.)                      (A.S. OKA, J.)
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