Md. Akbar Khan @ Chaoba vs The State Of Manipur Represented ...
2021 Latest Caselaw 73 Mani

MAYAN Digitally signed
        by
GLAMBA MAYANGLAMB
        AM CHANU
M       NANDINI
                                          IN THE HIGH COURT OF MANIPUR
CHANU Date:
        2021.03.19                                  AT IMPHAL
NANDINI 14:36:47 +05'30'
                                                  Cril._Petn.No.33 of 2019

                          Md. Akbar Khan @ Chaoba, aged about 22 years s/o of Md. Kalam of
                          Kairang Mayai Leikai P.S Heingang, District Imphal East, Manipur.


                                                                                    ....... Petitioner
                                                           - Versus -
                          The State of Manipur represented by Secretary Home, Govt. of Manipur


                                                                                    .... Respondent

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner/s : Mr.S. Jibon, Advt.

                           For the Respondent/s        :      Mr.Y. Ashang, PP.
                                                              Mr. M.Rakesh, Advt.

                           Date of hearing             :      16.02.2021

                           Date of Judgment & Order    :      18.03.2021




                                                   JUDGMENT & ORDER
                                                        (CAV)

     [1]                       This petition has been filed by the petitioner under section 482 of

Cr.P.C. seeking to quash the FIR Case No. 278(12) 2018 on the file of the SJM

Cril.Petn.No.33 of 2019 Page 1 Police Station under Section 366/368 IPC and Section 4 of POCSO Act, 2012 and

its charge sheet dated 27.5.2019 filed before the Special Court (POCSO), Imphal

West.

[2] The facts giving rise to the filling of the instant petition are that a suo

motu FIR was registered on the report dated 27.12.2018 lodged by one

L.Premkumar Singh, working as Assistant Sub Inspector of Singjamei Police

Station without any formal private complaint or report of the victim or her family

members or her relatives except a missing report dated 25.12.2018 submitted by

one Thokchom Premlata Devi on 24.12.2018 to the Office-in-charge of Singjamei

Police Station to the effect that her niece "X" has been found missing since

24.12.2018.

[3] According to the petitioner, the said suo motu FIR relates to the

elopement on mutual consent between the petitioner and the alleged victim. It is

alleged that before registration of the said suo motu FIR, the matter of elopement

between the victim and the petitioner was settled on compromise on execution of a

deed of agreement dated 25.12.2018 between the victim represented by her aunty

Thokchom Premlata Devi, who is the informant of the missing report and the

petitioner himself with certain terms and conditions. Since the matter of elopement

was settled on compromise vide agreement dated 25.12.2018, anybody including

the alleged victim, her parents and relatives have never approached the police of

Cril.Petn.No.33 of 2019 Page 2 Singjamei Police Station to register any case against the petitioner as in the said

deed of agreement both sides have agreed to solemnize the marriage between the

victim and the petitioner.

[4] It is also alleged that on coming to know the registration of FIR against

the petitioner, Thokchom Premlata Devi and the mother of the victim requested the

petitioner and his father for execution for another deed of agreement to close the

alleged FIR registered by the Police against the petitioner stating that the police

had registered an FIR on suo motu against the petitioner by ignoring the earlier

deed of agreement that too without any formal report from the part of the victim or

her parents by stating that Singjamei Police called the victim, her mother and some

of their relatives to give evidence and also certain things were collected by the

police from them and the victim was examined by the Judicial Magistrate II, Imphal

West under Section 164 Cr.P.C. According, the petitioner and his father accepted

the proposal of Thokchom Premlata Devi and Thokchom Bimola Devi, mother of

the victim and executed another deed of agreement on 22.2.2019 between the

victim represented by her mother Thokchom Bimola Devi and her grandmother

Thokchom Mema Devi as the first party and the petitioner represented by his father

Md. Kalam as the second party for making close the FIR registered by Singjamei

Police Station. Thus, the present petition has been filed by the petitioner seeking

Cril.Petn.No.33 of 2019 Page 3 to quash the FIR mainly on the ground that the matter has been settled between

the parties.

[5] The learned counsel for the petitioner submitted that the suo motu FIR

was registered by the police and afterthought to make the loss the prestige of the

petitioner, who was a football player and also after settlement of the matter of

dispute of elopement between the petitioner and the victim twice. He would submit

that as the matter of dispute of elopement was settled twice on compromise and

also as the elopement between the petitioner and the victim was consensual and

also as the age of the victim was crossed 18 years, the punishable offences of

Sections 363 and 366 IPC applied in the FIR and also applied in the charge sheet

cannot be attracted in the present case. Likewise the offence of Section of 6 of

POCSO Act cannot be attracted as during the course of investigation the

prosecution has failed to collect the age proof certificate such as school certificate

or date of birth certificate of the victim issued by the competent authority.

[6] The learned counsel for the petitioner thus submitted that the

allegations made against the petitioner in the FIR or the complaint report, even if

they are taken at their face value and accepted in their entirety do not prima facie

constitute any offence or does not make out a case against the petitioner as the

matter of dispute of elopement was already settled twice on compromise on

execution of two different deed of agreements and that the police has taken the

Cril.Petn.No.33 of 2019 Page 4 age of the victim wrongly to be 16 years without any basis and without sufficient

acceptable documents. Hence, the learned counsel for the petitioner prayed for

quashing of the FIR Case NO.278(12)2018 on the file of the SJM Police Station

and its case being Special Trial (POCSO) NO.9 of 2019 pending on the file of the

Special Judge (POCSO), Imphal West. In support, the learned counsel for the

petitioner replied on the following decisions:

(i) Gian Singh V. State of Punjab and another, (2012) 10 SCC 303.

(ii) Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others, (2017) 9 SCC 641.

(iii) Narinder Singh and others V. State of Punjab and another, (2014) 6 SCC

466.

(iv) Asha and another V. State of UP and another, Application NO.18331 of 2016, decided on 17.11.2017 on the file of the Allahabad High Court.

(v) Jameel Jabbar V. State of Karnataka, Crl.P.NO.3269 of 2017, decided on 12.12.2017 on the file of the Karnataka High Court.

(vi) Prasanth and another V. State, Crl.O.P.(MD) NO.3463 of 2020, decided on 28.2.2020 on the file of the Madurai Bench of Madras High Court.

[7] The learned Public prosecutor submitted that at the time of occurrence

the victim was aged 16 years and she is not a party to the alleged deed of

agreements referred to by the petitioner. He would submit that the offences alleged

in the instant case are non-compoundable offences. Hence, the petition seeking to

quash the FIR and its proceedings are liable to be dismissed.

Cril.Petn.No.33 of 2019                                                               Page 5
 [8]                   This Court considered the submissions raised by the parties and

perused the materials available on record.

[9]                   According to the prosecution, the Assistant Sub Inspector of Police

who registered suo motu FIR, traced out the victim and handed over to her aunt

Premlata on 25.12.2018 ay Hatta. It is stated that on enquiry to her about the

matter, it came to know that she was kidnapped by the petitioner Akbar Khan on

24.12.2018 at around 2.00 pm in front of Coffee Cafe, Kwakeithel Thokchom Leikai

by using a car. The petitioner drove the car towards Vale Academy and inside the

car told the victim that nobody would stand for her nor take her as wife. As he ruined

her chastity and defamed her in front of others known to her, she had no option left

than to elope with him to save her chastity. So she eloped with him and stayed the

night at Lilong along with him at one of his friends. At night she was married to him

in Muslim rituals Nikah at the house of his friends. Later, the victim and the

petitioner were taken by the parents of the petitioner at Hatta and handed over the

victim to her aunt after an agreement of solemnizing her marriage with the petitioner

after attaining her marriageable age.

[10] During the course of arguments, the learned counsel for the petitioner,

by taking through the agreement dated 4.1.2020 entered into between the petitioner

and the mother of the victim, stated that the petitioner and the victim have amicably

settled the matter by compromise and in that regard a deed was executed and

Cril.Petn.No.33 of 2019 Page 6 recording the said agreement of compromise, the referred FIR and its proceedings

in Special Trial Case NO.9 of 2019 may be quashed.

[11] It appears that earlier the petitioner has filed MC (Crl. Petition) NO.6

of 2020 seeking permission of the Court to file the deed of agreement of

compromise date 4.1.2020 entered into between the petitioner and the mother of

the victim and others and the copy of the daily status of Criminal Rev. Petition

NO.24 of 2019. This Court by an order dated 12.2.2021 allowed the said petition

and those two documents have been received.

[12] On a perusal of the agreement dated 4.1.2020, both the petitioner as

the first party and the mother of the victim and her relatives as the second party

entered into an agreement, wherein the second party stated that they shall not

object the Criminal Petition No.33 of 2019 filed by the first party for quashing the

FIR Case No.278(12)2018 and also the proceedings of the Special Trial (POCSO)

Case NO.9 of 2019.

[13] Though the respondent state objected the instant petition, it has not

produced any material to show that the agreement of compromise now produced

by the petitioner is not genuine and was not acted upon between the parties. That

apart, the mother of the victim or her relatives have not objected the agreement of

compromise. On a perusal of the said agreement of compromise, it is seen that the

Cril.Petn.No.33 of 2019 Page 7 said document has been attested by one M. Baby Devi, Oath commissioner

(Judicial), Imphal West District and High Court.

[14] For proper appreciation, the clauses contained in the deed of

agreement of compromise dated 4.1.2020 is extracted hereunder:

"1. That in pursuance of the aforesaid agreement and also in view of the earlier Agreement Deed dated 25.12.2018 and 22.02.2019, the 2nd party shall give evidence (If required) in terms of the agreement signed today in the proceeding of the Special Trial (POCSO) Case NO.9 of 2019 as the FIR Case No.278(12)2018 SJM PS U/S 366/368 IPC & POCSO Act, 2012 was registered on suo motu without any report from the 2nd party or victim-X at all.

2. That in pursuance of the aforesaid agreement and also in view of the earlier agreement Deed dated 25.12.2018 and 22.02.2019, the 2 nd party NO.1 shall withdraw the Criminal Revision Petition NO.24 of 2019 preferred by the 2nd party NO.1 in the honourable High Court of Manipur, on the next date.

3. That in pursuance of the aforesaid agreement and also in view of the earlier Agreement Deed dated 25.12.2018 and 22.2.2019, the 2 nd party shall not object the cril. Petn. NO.33 of 2019 filed by the present 1st party in the honourable High Court of Manipur for quashing the FIR Case NO.278(12)2018 SJM PS U/S 366/368 IPC & 4 POCSO Act, 2012 and also the proceeding of the Spl. Trial (POCSO) Case NO.9 of 2019.

4. That in pursuance of the aforesaid agreement and also in view of the earlier Agreement Deed dated 25.12.2018 and 22.02.2019, the 2 nd party shall have no objection to the honourable High Court of Manipur in quashing the FIR Case No. 278(12)2018 SJM PS U/S 366/368 IPC & 4 POCSO Act, 2012 and also the proceeding of the Spl. Trial

Cril.Petn.No.33 of 2019 Page 8 (POCSO) Case No.9 of 2019 as they are not interest in view of the future welfare and prestige of the Victim-X.

5. That as proposed and offered above by the 1 st party, the 1st party has paid to the 2nd party a sum of Rs. 4,00,000/- (Rupees Four Lakh) only as money for welfare and prestige of the Victim-X on this day of execution of this Deed and the 2nd party has acknowledged the receipt of the said offered amount of Rs. 4.00,000/- (Rupees Four Lakh) only from the 1st party on this day of execution of this deed.

6. That the 1st party has undertaken that he shall never claim in future the Victim-X to be his Nikah wife and he shall also never approach and attempt to approach to the victim-X to resume their earlier relationship absolutely and forever.

7. That both parties have agreed each other that the present Agreement of Compromise shall be binding in all courts, forums or otherwise and they shall comply with the terms and conditions thereof absolutely and forever.

8. That the words used in this deed shall be read in its simplest meaning without construing any pessimistic senses and ideas.

9. That the terms "1st party" and "2nd party" used in this deed shall cover the Victim-X and their legal representatives, assigns, relatives etc."

[15] Thus, as per the agreement of compromise, the parties i.e., the

petitioner as first party and the mother of the victim and her representatives as

second party have compromised the matter, whereby the second party received

Rs. 4,00,000/- from the first party and the first party has given undertaking that he

Cril.Petn.No.33 of 2019 Page 9 shall not claim in future the victim to be his Nikah wife and he shall not approach

and attempt to approach to the victim to resume their earlier relationship.

[16] The point now arises for consideration is whether the instant criminal

proceedings is liable to be quashed taking note of the agreement of compromise

date 4.1.2020 entered between the petitioner and the mother of the victim.

[17] Admittedly, the complainant in the registered FIR is the Assistant Sub

Inspector of Police and the said Assistant Sub Inspector of Police registered the

suo motu FIR based on the enquiry made by him with reference to the GD Entry

NO.12/SJM PS/2018 dated 25.12.2018. The said GD Entry is in relation to the

missing report lodged by the aunt of the victim and based on the missing report

only, the Assistant Inspector of Police acted and registered suo motu FIR. When

the parties involved in the offence have settled the case, the informant namely the

Assistant Sub Inspector of Police who registered the suo motu FIR may not have

any serious objection for closing the criminal proceedings.

[18] In normal circumstance, this Court would not entertain a matter when

the non-compoundable offences are heinous and serious in nature. In the instant

case, the offence complained of included offences punishable under Section

363/366 IPC and Section 6 of the POCSO Act which are offences a grave nature.

This Court is aware of the fact that time and again it has been held that an offence

under Section 366 IPC is a grievous offence and considered as an offence against

Cril.Petn.No.33 of 2019 Page 10 the society at large and thus, such matters should not be compromised. In the eyes

of law, the offence of kidnapping is serious and non-compoundable and the Courts

should not in ordinary circumstances interfere and quash the FIR that has been

registered.

[19] In Gian Singh (supra), the Honourable Supreme Court held as under:

"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 exercise 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 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 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 victims family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society."

Cril.Petn.No.33 of 2019                                                                Page 11
 [20]                  In Narinder Singh (supra), the honourable Supreme Court has laid

down certain principles and guidelines which should be kept in mind while quashing

of first Information Reports pertaining to non-compoundable offence.

[21] In Parbatbhai Aahir (supra), the honourable Supreme Court held thus:

"(1) Section 482 Cr.P.C. 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 quash 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

Cril.Petn.No.33 of 2019 Page 12 of each case and no exhaustive elaboration of principles can be formulate.

(6) .....

(7) .....

(8) .....

(9) .....

(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."

[22] In Asha (supra), Jameel Jabber (supra) and Prasanth (supra), the

High Courts of Allahabad, Karnataka and Madras, replying upon the decisions in

the cases of Gian Singh and Parbatbhai (supra), quashed the respective criminal

proceedings.

[23] In Madan Mohan Abbot V. State of Punjab, (2008) 4 SCC 582, the

honourable Supreme Court held that it is advisable that in disputes where the

question involved is of a purely personal nature, the Court should ordinarily accept

the terms of the compromise even in criminal proceedings.

[24] While replying upon the ratios of the aforesaid judgements, this Court

is of the view that the compromise which has been entered into for quashing of an

Cril.Petn.No.33 of 2019 Page 13 offence under Section 363/366 IPC and Section 6 of the POCSO Act on the basis

of the compromise should be accepted. As has been held by the honourable

Supreme Court in Narinder Singh (supra), those cases where a settlement is

arrived at immediately after the alleged commission of the offence, the High Court

may be liberal in accepting the settlement to quash the criminal proceedings.

[25] In the instant case, immediately after the alleged commission of the

offence, the petitioner and the mother of the victim have executed deed of

agreements dated 25.12.2018 and 22.2.2019 and pending this petition, the

petitioner as first party and the mother of the victim and his relatives as second

party have executed agreement of compromise on 4.1.2020, wherein the mother

of the victim agreed for closure of the criminal proceedings against the petitioner. It

is not the case of the respondent State that in Special Trial Case No. 9 of 2019,

evidence was let in and the case is pending part-heard. In such view of the matter,

this Court finds that no useful purpose will be served in keeping the proceedings in

Special Trial Case NO.9 of 2019 pending even though the offence involved are not

compoundable in nature. In the light of the guidelines given by the honourable

Supreme Court in the case of Parbatbhai (supra), this Court in exercise of its

jurisdiction under Section 482 Cr.P.C. quashes the proceedings in Special Trail

Case No.9 of 2019.

Cril.Petn.No.33 of 2019                                                            Page 14
 [26]                  The two rival parties have amicably settled the disputes between

themselves and buried the hatchet. Not only this, the petitioner says that though

Nikah was performed, he shall not claim in future the victim to be his wife and he

shall also never approach and attempt to approach to the victim to resume their

earlier relationship absolutely and forever.

[27] In view of the compromise between the parties, the possibility of

conviction is also remote and bleak. In the above circumstances, continuity of the

criminal proceedings against the petitioner 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 criminal proceedings.

[28] Accordingly, this Criminal petition is allowed and as a sequel, the

proceedings in FIR Case No.278(12)2018 on the file of the SJM Police Station

under Section 366/368 IPC and Section 4 of POCSO Act, 2012 and the Special

Trial Case NO.9 of 2019 on the file of the Special Judge (POCSO), Imphal West

are quashed and the terms of the agreement of compromise dated 4.1.2020 shall

form part and parcel of this order.

                                                                JUDGE

           FR/NFR

           John kom




Cril.Petn.No.33 of 2019                                                           Page 15