Madras High Court
Kalaivanan vs The Inspector Of Police on 9 March, 2022
Crl.O.P.No.20636 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.20636 of 2021
1.Kalaivanan
2.Senthilkumar
3.Kalaimagal ...Petitioners
-Vs-
1.The Inspector of Police,
All Women Police Station,
Mannargudi, Tiruvarur District.
Crime No.7 of 2019.
2.Kiruba ..Respondents
Prayer : Criminal Original Petition is filed under Section 482 of the Criminal
Procedure Code, praying to call for the records in P.R.C.No.65 of 2020 on the
file of the learned Judicial Magistrate No.1, Mannargudi and quash the same.
For Petitioners : Mr.M.Subash
For Respondents : Mr.A.Gokulakrishnan
Additional Public Prosecutor for R1
Mr.K.Karuppiah Mooppanar for R2
ORDER
The Criminal Original Petition has been filed to call for the records in
P.R.C.No.65 of 2020 on the file of the learned Judicial Magistrate No.1,
Mannargudi.
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2. The case of the prosecution as per defato complainant/Kiruba is
that the first petitioner/Kalaivanan induced the defacto complainant under the
promise of marrying her and had sexual intercourse with her and thereafter
refused to marry her.
3. Coming to know that the first petitioner got engaged to some other
person, the defacto complainant had questioned the accused 2 and 3 and they
have abused the defacto complainant and criminally intimidated her. Based on
the complaint, a case in Cr.No.7 of 2019 was registered against the petitioners.
The first respondent after completion of investigation filed the final report for
the offence under Sections 417, 376, 294(b) and 506(i) IPC. The matter is
pending for committal on the file of the Judicial Magistrate No.I, Mannarkudi.
4. The learned counsel for the petitioner would submit that the
defacto complainant and the first petitioner were having love affair from the
year 2012 and subsequently they had physical relationship from the year 2015.
The second respondent/defacto complainant due to frustration and
apprehending that the first petitioner will not marry her had given a complaint
against the first petitioner and his sister and brother in law who are respectively
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Crl.O.P.No.20636 of 2021
petitioners 2 and 3 herein. He would submit that the matter has been
compromised between the parties. He would further submit that due to the
intervention of relatives and well wishers, the matter has been compromised
between the parties and the parties have also got married on 28.07.2020 at
Tiruvarur, Needamangalam and the marriage was registered before the
Sub Registrar, Needamangalam vide Marriage Sl.No.TMR/Needamangalam
/23/2020.
5. The first petitioner and the second respondent are now living
together as husband and wife. The parties have also filed joint memo of
compromise signed by both the parties and they are identified by their
respective counsel on record. The second respondent/defacto complainant has
filed affidavit, the relevant portion of the affidavit is reproduced hereunder :-
''2.I submit that the 2nd and 3rd petitioners are my
neighbors while so the 1st petitioner being a brother of 3rd
petitioner when visited her sister's house had introduced to
me further both we were felt in love in the year of 2012 and
subsequently developed our relationship. When that being so
from the year 2015 the 1st petitioner started to had a physical
relationship with me on the strength of false promise to
marry and on believing the same I was spending time with
him on several occasions.
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3.I submit that thereafter sometimes the 1st
petitioner refused to marry me and on 22.05.2019 when I
approached the 2nd and 3rd petitioners to marry the 1st
petitioner for which both of them threatened me with dire
consequences using filthy language. Hence I lodged a
complaint.
4.I submit that I had given the above complaint
against the petitioners on frustration over the refusal of
marriage by the 1st petitioner, later the 1st petitioner realized
his mistake further both myself and the 1st petitioner got
married on 28.07.2020 with blessings both family members
and we are peacefully leading their matrimonial life.
5.I submit that whereas the petitioners entered into
a compromise with me as both the 1st petitioner and I got
married and as per the compromise I am ready to settle the
dispute and also willing to withdraw the case in
P.R.C.No.65/2020 on the file of Judicial Magistrate No.1,
Mannargudi.
6.I submit that after I and the 1st petitioner got
married I agreed to withdraw the a case and also agreed to
give no objection for quashing case in P.R.C.No.65/2020 on
the file of Judicial Magistrate No.1, Mannargudi.''
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Crl.O.P.No.20636 of 2021
6. The case has been registered for offences under Sections 417, 376,
294 and 506(i) IPC. It is settled law that the High Court has inherent power
under Section 482 of the Code of Criminal Procedure to quash the 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.
7. 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
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what cases power to quash the criminal proceeding or complaint
or FIR may be exercised where the 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."
8. In Narinder Singh v. 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 on that
basis petition for quashing the criminal proceedings is filed, the
guiding factor in such cases would be to secure:
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Crl.O.P.No.20636 of 2021
(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 accused to
great oppression and prejudice and extreme injustice would be
caused to him by not quashing the criminal cases."
9. In Parbatbhai Aahir v. State of Gujarat [AIR 2017 SC 4843],
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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 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
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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 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
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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."
10. Subsequently, a three judges bench of the Hon'ble Apex Court in
State of Madhya Pradesh v. 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
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Crl.O.P.No.20636 of 2021
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 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
harmoniously and to be read as a whole and in the circumstances
stated hereinabove;
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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."
11. 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.
12. In the case at hand, the petitioners are charged for the offences
punishable under Sections 417, 376, 294(b) and 506(i) of IPC. Now, the
petitioners and the 2nd respondent/defacto complainant have amicably settled
their disputes themselves. The 2nd respondent/defacto complainant has also
filed an affidavit stating that she got married with the first petitioner on
26.07.2020 and they are leading their matrimonial life.
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13. This Court enquired the 2nd respondent/defacto complainant she
had informed that out of frustration and apprehending that the first petitioner
will not marry her had given a complaint. She would also submit that the
relationship between the parties are consensual in nature, she would also submit
that they belong to same community and they got married on 28.07.2020 and
now they are living as husband and wife at Chennai. The case is also ripe for
committal, the second respondent/defacto complainant is not interested in
prosecuting the criminal proceedings.
14. In view of the compromise between the parties, the possibility of
conviction is also remote and bleak. In the above circumstances, the continuity
of the criminal proceedings would only cause oppression and prejudice to the
parties, hence, in order to secure the ends of justice, this Court is inclined to
quash the proceedings as against the petitioners.
15. Accordingly, this Criminal Original Petition is allowed and the
criminal proceedings initiated against the petitioners in PRC.No.65 of 2020 on
the file of the Judicial Magistrate No.I, Mannargudi is quashed and Joint Memo
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of Compromise signed by both the parties and the Affidavit of the 2nd
respondent dated 27.10.2021, shall form part of Court records.
09.03.2022
tsh
To
1. The Judicial Magistrate No.1, Mannargudi.
2. The Inspector of Police,
All Women Police Station,
Mannargudi, Tiruvarur District.
3. The Public Prosecutor,
High Court, Madras.
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Crl.O.P.No.20636 of 2021
A.D.JAGADISH CHANDIRA. J.,
tsh
Crl.O.P.No.20636 of 2021
09.03.2022
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