High Court of Meghalaya

Smti. Phiyola Myrthong vs . State Of Meghalaya & 2 Ors. on 12 May, 2022

     Serial No. 01
     Supplementary
     List



                         HIGH COURT OF MEGHALAYA
                             AT SHILLONG

Crl.Petn. No. 6 of 2022
                                                 Date of Decision: 12.05.2022
Smti. Phiyola Myrthong                 Vs.        State of Meghalaya & 2 Ors.
Coram:
               Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   :      Ms. S. Nongsiej, Adv.
For the Respondent(s)             :      Mr. K.P. Bhattacharjee, GA. for R 1&2.

Ms. P. Chettri, Adv. for R 3.

i)       Whether approved for reporting in                  Yes/No
         Law journals etc.:

ii)      Whether approved for publication
         in press:                                          Yes/No


                     JUDGMENT AND ORDER (ORAL)

1. An FIR being Sohra P.S. Case No. 20(6) of 2020 under Section 376

IPC was registered, the contents of which would reveal that the petitioner

herein was allegedly raped by the respondent No. 3. On investigation being

launched and the Investigating Officer having filed the final report as required

under Section 173 Cr.P.C, the matter was taken up for trial by the learned

Sessions Judge, Shillong in Sessions Case No. 23(T) of 2021. The stage of the

case is for consideration of charge.

2. The petitioner has come before this Court with an application under

Section 482 Cr.P.C with a prayer to quash the said FIR and the subsequent

proceedings in Sessions Case No. 23(T of )2021.

3. Ms. S. Nongsiej, learned counsel for the petitioner has submitted

that the FIR was filed on account of wrong advice and misunderstanding of

communication between the parties when actually nothing happened between

the petitioner and the respondent No. 3 who are mother and son respectively.

However, since the said FIR has been registered the respondent No. 3 has been

arrested in connection with the same, but was subsequently enlarged on bail.

4. The learned counsel has further submitted that since the case has

proceeded for trial, with the intervention of near and dear ones, the petitioner

and the accused/respondent No. 3 have entered into a compromise and does

not want to pursue with the case.

5. A Memorandum of understanding/compromise deed dated

29.11.2021 was annexed to this petition and the essence of the same would

show that the parties, that is, the petitioner herein and the respondent No. 2 as

the First and Second party respectively, acknowledging that the said FIR was

filed on the premise of a misunderstanding, wrong advice and

miscommunication when actually nothing has happened as alleged, therefore,

on the said misunderstanding having been resolved, the parties have also

agreed to approach this Court with an appropriate application with a prayer to

quash the criminal proceedings as mentioned above.

6. The learned counsel has chosen to rely on certain judgments in this

regard. In the case of Ananda D.V v. State and Anr wherein the Hon'ble

Supreme Court in Criminal Appeal No. 394-395 of 2021 had vide order dated

12.04.2021 allowed the appeal against the order of the High Court refusing to

quash the related FIR in a case of a dispute between the parties emanating

from a promise by the appellant to the private respondent to marry her which

promise was not kept by the appellant leading to the filing of an FIR.

However, the dispute between the parties was soon resolved and they

eventually got married on 11.10.2014. Taking into account the joint

application of the parties for quashing of the stated FIR, the Apex court has

allowed the same and has set aside the impugned judgment and order.

7. Another case cited is the case of Ashiq N.A v. State of Kerela & Anr

wherein vide order dated 23.05.2019, in CRL. MC. No. 381 of 2018, the

Hon'ble Kerela High Court considering the application for quashing of the

proceedings in S.C No. 533/2015 wherein, in a case under Sections 366A, 376

IPC & Section 3(a) r/w Section 4 of the POCSO Act, the petitioner and the

second respondent have settled the disputes amicably and have eventually got

married with a daughter born to them and as such, continuing with the criminal

proceedings would be a futile exercise, the application was allowed.

8. Per contra, Mr. K.P. Bhattacharjee, learned GA appearing for the

State respondent has submitted that though this Court is empowered under

Section 482 Cr.P.C to exercise its inherent power even to the extent of

quashing of a criminal proceeding when the parties therein have come to a

compromise, however, in cases where the nature of the offence is serious or

heinous such as rape, murder, dacoity, etc, the Court would be cautious before

exercising its inherent power to quash proceedings related thereto.

9. To support his contention, the learned GA has cited the case of Gold

Quest International Private Limited v. State of Tamil Nadu & Ors: (2014)

15 SCC 235, paragraph 8 and also the case of Vimlesh Agnihotri & Ors. v.

State & Anr with reference to the order dated 16.08.2021 passed by the

Hon'ble High Court of Delhi in CRL.MC. 1524/2021.

10. The Hon'ble Supreme Court in the case of Gold Quest International

Private Limited (supra) at paragraph 8 has expressed the view that in disputes

which are substantially matrimonial in nature, or the civil property disputes

with criminal facets, if the parties have entered into settlement, and it has

become clear that there are no chance of conviction, there is no illegality in

quashing the proceedings under Section 482 Cr.P.C read with Article 226 of

the Constitution. However, the same would not apply where the nature of

offence is very serious like rape, murder, robbery, dacoity, cases under the

Prevention of Corruption Act, cases under the Narcotic Drugs and

Psychotropic Substances Act and other similar kinds of offences in which

punishment of life imprisonment or death can be awarded.

11. In the case of Vimlesh Agnihotri (supra) the Hon'ble Delhi High

Court has echoed the same sentiment and has also elaborately cited

circumstances where the High Court may not exercise its power for quashing

an offence of rape on the ground that the parties have entered into a

compromise. At paragraph 9 in the case of Shimbhu & Anr v. State of

Haryana: (2014) 13 SCC 318, paragraph 20 was cited, wherein the Hon'ble

Supreme Court has observed as under: -

"20. Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in

compromising the case is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC."

12. Of late, it has been observed that there has been a growing number

of crimes against women and children and the number of institution of cases

under the Protection of Children from Sexual Offences has been on the rise

which offences are usually connected with incidents of sexual assault and the

like. To say that rape is an offence against society apart of an affront against

a particular individual cannot be off the mark and in cases where the facts and

circumstances prima facie establishes the commission of such an offence, the

Court would be wont to interfere with the due process of criminal law, except

in exceptional circumstances where the golden rule of securing ends of justice

and ensuring that there is no abuse of the process of the Court can be applied.

13. Viewed thus, this Court finds that the petitioner has not been able to

make out a case for interference into the proceedings referred to and as such,