Allowed

Govada Sekhar v. the State of A.P.

Andhra Pradesh HC10 Nov 2023CRLRC/1212/2009

Case brief

AI extract

What is this about?

This court quashed the criminal revision proceedings and set aside the conviction for Section 354 IPC in a rape and annoyance case where the original charge for rape was already dropped on appeal. Relying on Supreme Court precedents, the court held that Section 482 Cr.P.C. allowed quashing due to the parties' compromise and the passage of time.

What did the court decide?

The criminal revision case is allowed; the petitioner is acquitted for the offence under Section 354 IPC and the fine is refunded.

Govada Sekhar Vs the State of A.P. — Quashing and FIR | Andhra Pradesh HC (2023)

¶1

THE HON'BLE SRI JUSTICE V.SRINIVAS

¶2

I.A.NO.2 & 3 of 2023 IN/AND CRIMINAL REVISION CASE No.1212 of 2009

¶3

COMMON ORDER:

¶4

Assailing the judgment dated 20.07.2009 in Crl.A.No.166 of 2007 on the file of Court of learned I Additional District & Sessions Judge, Krishna at Machilipatnam, confirming the conviction and sentence imposed by the judgment dated 14.12.2007 in S.C.No.104 of 2007 on the file of Court of learned Assistant Session Judge, Gudivada for the offence under section 354 of IPC and set aside the said judgment in respect of the conviction and sentence imposed for the offence under Section 375 r/w.511 of IPC, the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973 (hereinafter referred as “Cr.P.C.”)

¶5

The revision case was admitted on 24.07.2009 and the sentence of imprisonment was suspended.

¶6

Pending criminal revision case, I.A.Nos.1, 2 and 3 of 2023 were filed by the petitioner and defacto-complainant.

¶7

¶8

The petitioner was arrayed as accused in Cr.No.108 of 2006 of Mandavalli Police Station for the offences under Section 354 and 376 r/w.511 of IPC and police laid the charge sheet and thereafter the case was committed to the Court of Sessions, vide P.R.C.No.6 of 2007, and numbered as S.C.No.104 of 2007 on the file of Court of learned Assistant Sessions Judge, Gudivada and the trial was conducted and found the accused guilty for the charges under Section 354 and 376 r/w.511 of IPC and sentenced to undergo rigorous imprisonment for five (5) years and also pay a fine of Rs.1,000/- for the charge under section 354 IPC, in default, suffer simple imprisonment for two (2) months and also sentenced to undergo rigorous imprisonment for five (5) years and also pay a fine of Rs.500/for the charge under section 376 r/w.511 of IPC, in default, suffer simple imprisonment for one month. The accused is entitled to set off for the period already undergone by him, if any under Section 428 of Cr.P.C. The fine amount if paid by the accused of Rs.1,500/- be paid to P.W.1 as compensation under Section 357 of Cr.P.C., after expiry of appeal time.

¶9

Aggrieved by the said conviction and sentence imposed by the Trial Court, the petitioner/accused filed an appeal, vide Crl.A.No.166 of 2007, before the Court of learned I Additional

¶10

¶11

District and Sessions Judge, Krishna at Machilipatnam and the first Appellate Court allowed the said appeal in part as follows:

¶12

“The accused found not guilty for the offence under Section 376 r/w.511 IPC and he is acquitted under section 235 Cr.P.C. and consequently, the conviction and sentence imposed by the trial Court against the accused for the offence under section 376 r/w.511 IPC are set aside. However, the appeal filed by the accused for the offence under Section 354 IPC is dismissed. Consequently, the conviction and sentence imposed by the trial Court against the accused to undergo R.I. for five years and fine of Rs.1,000/-, in default, simple imprisonment for two months for the offence under Section 354 IPC are confirmed.”

¶13

The conviction and sentence imposed by the trial Court against the accused to undergo R.I. for five years and fine of Rs.1,000/- for the offence under Section 354 IPC is maintained by the first Appellate Court. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused and when it is pending for consideration and while hearing the revision, the petitioner/accused and 2^nd respondent/defacto complainant are present in the Court.

¶14

¶15

The defacto-complainant was impleaded as 2^nd respondent in the present revision, vide orders dated 10.11.2023 in I.A.No.1 of 2023.

¶16

I.A.No.2 of 2023 is filed under Section 320(2) of Cr.P.C. by the defacto complainant/2^nd respondent, seeking to record the compromise and compound the offence against the petitioner/accused. The accused and defacto complainant produced their respective identity proofs, they were identified by the learned counsel on both sides and they jointly filed a compromise petition stating that they are belongs to adjacent villages intervened by Railway Track, both the village elders as well as well-wishers have mediated the issue to maintain peace and tranquility in the locality and the elders have pacified the differences between them.

¶17

I.A.No.3 of 2023 is jointly filed by the defacto complainant and petitioner/accused seeking permission of the Court to compound the offence under Section 354 of IPC.

¶18

Now the question come up for consideration is; whether the petitioner as well as 2^nd respondent can permit to invoke the provisions of Section 482 of Cr.P.C., which is inherent power to the High Court to make orders necessary to meet the ends of justice and to prevent the abuse of process of Court.

¶19

¶20

Section 482 of Cr.P.C. conferred powers on the High Court to exercise inherent powers, and said section reads as follows:

¶21

“Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”.

¶22

Generally, Section 482 Cr.P.C used to invoke to quash the criminal proceedings including F.I.R. or complaint in appropriate cases. The decision to invoke Section 482 Cr.P.C. in a criminal revision under Section 397 Cr.P.C. will depend on the facts and circumstances of each case.

¶23

In this connection, the learned counsel for the petitioner brought to the notice of this Court judgment of Hon’ble Supreme Court in between Shiji @ Pappu v. Radhika¹ , wherein at paragraph No.17 held as follows:

¶24

“13. It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an

¶25

1 (2011) 10 SCC 705

¶26

¶27

exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C.”

¶28

Herein this case, whether invoking provisions under Section 482 of Cr.P.C. is required in an offence under Section 354 IPC, which is not compoundable. The petitioner as well as 2^nd respondent categorically stated that they belong to adjacent villages and on the intervention of elders of both the villages and well-wishers to maintain peace and tranquility in their locality and also in their respective families, they intend to compromise the matter and the 2^nd respondent, who is defacto complainant came forward for recording the compromise. On examination, she stated that she voluntarily came forward to compromise the

¶29

¶30

matter with the petitioner/accused and she has no objection to set aside the conviction and sentence recorded against the petitioner/accused. Moreover, the offence allegedly committed by the accused on 23.11.2006 at the age of 32 years against the 2^nd respondent, when she was aged about 28 years. Now more than seventeen years have lapsed from the date of the alleged offence.

¶31

It is needless to mention that the High Court has to exercise its inherent powers under Section 482 Cr.P.C in the circumstances so warrants such an invocation. Section 482 Cr.P.C. is very clear that it may be used its inherent power to meet the ends of justice or found to continue the proceedings would be abuse of process of Court or otherwise to meet the ends of justice to the parties.

¶32

This Court is conscious of the fact that the inherent power used under Section 482 Cr.P.C. is discretionary, sparingly and cautiously to prevent misuse and while using it should also be conscious. The Hon’ble Supreme Court and High Courts laid guidelines, when the inherent powers can be invoked, where there is an abuse of process of the Court or to meet the ends of justice the Court can invoke inherent jurisdiction.

¶33

¶34

In this connection, it is also relevant to make a mention judgment of the Hon’ble Supreme court in Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS² , wherein had laid down the powers of the High Court under Section 482 Cr.P.C., which are as follows:

¶35

“Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all

¶36

2 2006 AIR SCW 3990

¶37

¶38

such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist." restored powers of the High Court under Section 482 Cr.P.C.”

¶39

In view of the above ratio laid down by the Hon’ble Supreme Court as well this Court, also perused another judgment of the Hon’ble Supreme Court in between Gian Singh v. State of Punjab³ , wherein at paragraph No.61 held as follows:

¶40

“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

¶41

3 (2012) 10 SCC 303

¶42

¶43

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 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 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 pre-dominatingly 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

¶44

¶45

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 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 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 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 criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

¶46

Taking into consideration of the above authoritative pronouncements and in view of the joint memo filed by the revision petitioner and the 2^nd respondent/defacto complainant and affidavit filed with regard to the compromise between the parties, this Court deems it appropriate to allow the present

¶47

¶48

criminal revision case. Having regard to the above, I.A.Nos.2 and 3 of 2023 are ordered.

¶49

In the result, the Criminal Revisions Case is also allowed and the conviction and sentence imposed vide judgment dated 14.12.2007 in S.C.No.104 of 2007 on the file of Court of learned Assistant Sessions Judge, Gudivada, as partly confirmed in the judgment dated 20.07.2009 in Crl.A.No.166 of 2007 on the file of Court of learned I Additional District and Sessions Judge, Krishna at Machilipatnam, is hereby set aside. The revision petitioner/accused is acquitted for the offence under Section 354 IPC. The fine amount paid by the accused, shall be refunded to him.

¶50

As a sequel, miscellaneous applications pending, if any, shall stand closed.

¶51

_______________________ JUSTICE V.SRINIVAS

Date: 10.11.2023 Krs

THE HON'BLE SRI JUSTICE V.SRINIVAS

¶56

I.A.NO.2 & 3 of 2023 IN/AND