Madras High Court

Navin Ashok Kumar @ vs State Represented By on 13 April, 2022

                                                                            CRL.O.P.No.8561 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 13.04.2022

                                                      CORAM:

                            THE HON'BLE MR JUSTICE A.D.JAGADISH CHANDIRA

                                               CRL.O.P.No.8561 of 2022

                     Navin Ashok Kumar @
                     Navin Daniel Ashok Kumar                     ...Petitioner/Accused
                                                         Vs

                     1.State represented by
                       The Inspector of Police,
                       W-18, All Women Police Station,
                       M.K.B.Nagar, Chennai.                      ... 1st Respondent/
                                                                           Complainant

                     2.Katherine Meyers                           ... 2nd Respondent/
                                                                          Defacto Complainant


                     PRAYER: Criminal Original petition is filed under Section 482 of
                     Criminal Procedure Code, praying to call for the records pertaining to
                     Cr.No.17 of 2021 pending on the file of the 1st respondent and quash the
                     same.
                                     For Petitioner   : Mr.P.Parthipan
                                     For R1           : Mr.A.Gokulakrishnan
                                                        Additional Public Prosecutor

                                     For R2           : Mr.R.M.Gokulakrishnan



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                                                                                   CRL.O.P.No.8561 of 2022



                                                         ORDER

The Criminal Original Petition has been filed to call for the records

pertaining to Crime.No.17 of 2021, pending on the file of the first

respondent and to quash the same.

2.The case of the prosecution as per the defacto complainant is that

on a false promise to marry her the petitioner had sexual intercourse with

her. On coming to know the fact that the petitioner already got married,

the defacto complainant has preferred a complaint before the respondent

police and a case was registered in Crime No.17 of 2021, for the offence

under Sections 376 & 417 of IPC. Hence, the case.

3.The learned counsel appearing for the petitioner would submit

that the petitioner and the defacto complainant are matured adults and

they were having a love affair and the physical affair between them was

consensual in nature. Due to misunderstanding, the defacto complainant

has given a complaint against the petitioner as if the petitioner has

cheated her and committed rape on her. He would further submit that

after the intervention of the well wishers and relatives, the matter has

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been compromised between the parties and the defacto complainant also

does not want to proceed further.

4.The learned Additional Public Prosecutor appearing for the first

respondent would submit that based on the complaint of the defacto

complaint, the petitioner had cheated her on the false promise of

marrying her and committed rape on her, a case in Crime No.17 of 2021

was registered for the offences under Sections 376 and 417 of IPC. He

would further submit that the girl has been subjected to medical

examination and that the investigation is pending.

5.The learned counsel for the second respondent/defacto

complainant would submit that the defacto complainant is aged about 21

years. He would submit that there was a love affair between the defacto

complainant and the petitioner and that the relationship between them is

consensual in nature. However, due to misunderstanding, the defacto

complainant has given a complaint and later, the matter has been

compromised between the parties and the defacto complainant does not

want to proceed further.

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6.The petitioner and the defacto complainant are present before

this Court and they were identified by their respective counsels. This

Court also enquired the defacto complainant and she submitted that there

was a love affair between them and their relationship was consensual in

nature and she does not want to proceed further. To that effect the second

respondent herein/defacto complainant has also filed an affidavit and the

relevant portion of the affidavit is reproduced hereunder:

“1.I state that I am the second respondent in the present quash petition and the defacto complainant in the above Cr.No.17/2021 on the file of the first respondent herein. I have carefully read out the contents of above quash petition filed by the petitioner herein. The averments in the quash petition are true and correct to the best of my knowledge and belief.

2.I most respectfully state that this Hon'ble Court may be pleased to allow the quash petition in the view of the compromise arrived between myself and petitioner. I submit that myself and the petitioner had loved each other and dispute arose between us due to misunderstanding and thereby the present F.I.R was registered on my complaint.

However, after registration of F.I.R myself and the

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petitioner's family members had amicably sorted out all our disputes in the presence of elders and mediators. Based on the compromise arrived between me and the petitioner, we have sorted out all our past issues. Moreover, I don't want to pursue the above case as against the petitioner as we had already entered into a compromise and sorted out all our issues. Further I am going to settle at Maldives by next month.

4.In the above circumstances, I am filing this affidavit to state that the averments made in the quash petition are correct and we sorted out all our issues. I further submit that I have received a sum of Rs.2,00,000/- as compensation. I further submit that I am working at Maldives and going to settle there permanently. Hence I am not willing to pursue the above criminal case in Crime No.17/2021 on the file of the 1st respondent and therefore this Hon'ble Court may be pleased to consider the quash petition.”

7.Heard the learned counsel on either side and perused the

materials placed on record.

8.The case has been registered for offences under Sections 376 and

417 of IPC. It is settled law that the High Court has inherent power

under Section 482 of the Code of Criminal Procedure to quash the

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criminal proceedings even for the offences which are not compoundable

under Section 320 of the Code of Criminal Procedure, where the parties

have settled their dispute between themselves. However, while quashing

the criminal proceedings, based on the settlement arrived at between the

parties, the High Court should act with caution and the power should be

exercised sparingly only in order to secure the ends of justice and also to

prevent abuse of process of any Court.

9.In Gian Singh Vs. State of Punjab [2012 (10) SCC 303], the

Supreme Court has held as follows:

"61. The position that emerges from the above discussion can be summarized 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 FIR may be exercised where the

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offender and the 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 a serious impact on society."

10.In Narinder Singh Vs. State of Punjab [2014(6) SCC 466],

after considering the Gian Singh's case referred to above, the Hon'ble

Supreme Court has held as follows :-

29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and

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on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve 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. Similarly, for the offences alleged to have been committed under special statute 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.

29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the

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accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases."

11.In Parbatbhai Aahir Vs. State of Gujarat [AIR 2017 SC 4843],

the Supreme Court held thus"

"(1) Section 482 CrPC preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inherent in the High Court.

(2) The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 CrPC. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(3) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would

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justify the exercise of the inherent power. (4) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court.

(5) the decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulate. (6) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

(7) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a

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distinct footing insofar as the exercise of the inherent power to quash is concerned.

(8) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

(9) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and (10) There is yet an exception to the principle set out in Propositions (8) and (9) above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

12.Subsequently, a three judges bench of the Hon'ble Apex Court in

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State of Madhya Pradesh Vs. Laxmi Narayan reported in (2019) 5 SCC

688 the Hon'ble Supreme Court, considering all the above judgments, has

held as follows:

i) 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;

ii) 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;

iii) similarly, such power is not to be exercised for the offences under the special statutes like 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;

iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious

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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/delegate 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 paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read

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harmoniously and to be read as a whole and in the circumstances stated hereinabove;

v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart 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."

13.Keeping the above principles in mind, let us now consider the

instant case as to whether it is a fit case to quash the criminal

proceedings based on the settlement arrived at between the parties.

14.In the case at hand, the petitioner is charged for the offences

punishable under Sections 376 & 417 of IPC. Now, the petitioner and

the 2nd respondent/defacto complainant have amicably settled their

disputes themselves. The 2nd respondent/defacto complainant has also

filed an affidavit as stated supra.

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15.When this Court enquired the 2nd respondent/defacto

complainant she had informed that there was a love affair between them