Dismissed

Shri. Khehoshe Chishi v. the State of Nagaland and Anr.

Gauhati HC10 Aug 2022CRL.REVN/2/2022

Case brief

AI extract

What is this about?

This revision petition sought summary quashing of a rape case based on a compromise agreement arguing consensuality due to age non-disclosure. The Court dismissed the petition, holding that rape is a serious offence affecting society that cannot be quashed via compromise, and noted such matters are not for trial-stage defence assessment.

What did the court decide?

Petition for quashing of criminal proceedings is dismissed as the offences are heinous and non-private in nature.

Shri. Khehoshe Chishi Vs the State of… — Civil Procedure and Limitation | Gauhati HC (2022)

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GAHC020002942022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : CRL.REVN 2/2022

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1:SHRI. KHEHOSHE CHISHI OLD MINISTER'S HILL, KOHIMA NAGALAND

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VERSUS

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1:THE STATE OF NAGALAND AND ANR NAGALAND KOHIMA

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2:MRS. XYZ NAGALAND KOHIM

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Advocate for the Petitioner : JOSHUA SHEQI Advocate for the Respondent : GOVT ADV NL

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BEFORE

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HON'BLE MR. JUSTICE ROBIN PHUKAN

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JUDGEMENT (CAV)

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Date : 10-08-2022

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Heard Mr. Joshua Sheqi, learned counsel for the petitioner. Also heard Mr. Zakato Chishi, learned counsel for the private respondent and Mr. K. Angami, learned Public Prosecutor for the State of Nagaland.

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2. This petition, under Section 482 of the Criminal Procedure Code, 1973 is preferred by Shri Khehoshe Chishi for quashing the proceeding of G.R. Case No. 71/2022, corresponding to Kohima Women P.S. Case No. 007/2022, under

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Sections 354A(i)/363/376 of the Indian Penal Code read with Sections 4/8 of the POCSO Act.

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3. The factual background, leading to filing of the present petition, is briefly stated as under:-

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“On 29.05.2022, one Smti X (name withheld), mother of a minor girl of New Market, Sector-II of Kohima, Nagaland, lodged one F.I.R. with the Women Police Station, North P.S., Kohima, alleging inter alia amongst others that on 28.05.2022, one unknown person forcefully took away her daughter from Lower Chandmari Colony, Kohima, while she was talking with her friend, Mr. Meyiewi, in Lower Chandmari and she was forcefully made to drink alcohol and thereafter, she was physically assaulted and raped by that unknown person on 29.05.2022, at around 3.00 a.m. Upon the said F.I.R., the Office-In-Charge, Women Police Station, Kohima, Nagaland, registered a case, being Women P.S. Case No. 007/2022, under Sections 354A(i)/363/376 of the Indian Penal Code read with Sections 4/8 of the POCSO Act, and endorsed one UBSI Viluobiano for investigation. During investigation, the I.O. has visited the place of occurrence and examined the witnesses and arrested the accused and remanded him to judicial custody. While the investigation was going on, the family members of the victim and the accused person had effected a compromise on 14.06.2022, and executed one compromise agreement also, which is being annexed with the petition as Annexure-‘C’, and on the basis of the same, the father of the accused, Shri Khehoshe Chishi, approached this Court by filing the present petition for quashing the enquiry proceeding in G.R. Case No. 71/2022, corresponding to Kohima Women P.S. Case No. 007/2022, on the ground that on that day, the accused and the victim shared alcohol drinks together and the victim did not revealed her age to

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the accused that she is 17 years old and thereafter, they willingly participated in the sexual act and that it was consensual and the parents of the accused and the victim decided to close the chapter, and therefore, this revision petition has been filed for quashing the criminal proceeding.”

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4. Mr. Joshua Sheqi, learned counsel for the petitioner, submits that the petitioner has approached this Court on the basis of the compromise agreement, which is enclosed with the petition as Annexure-‘C’ , and that the alleged incident had happened due to non-disclosure of her age by the victim and the act has been committed out of sheer ignorance and in free volition, clear conscience and without any influence, they decided to close the chapter and they approached this Court for quashing the proceeding by filing the present petition. Mr. Sheqi therefore, contended to allow the petition. Mr. Sheqi also refers two case laws- State Vs. Kaishar Ali , reported in 2019 SCC OnLine Del 9875 and Ranjit Rajbanshi Vs. The State of West Bengal and Ors. (C.R.A. No. 458 of 2018) , to contend that the accused has committed the offence without knowing the age of the victim and as such, no offence under Sections 354A(i)/363/376 of the Indian Penal Code and Sections 4/8 of the POCSO Act can be said to be made out against the petitioner.

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5. On the other hand, Mr. Zakato Chishi, learned counsel for the respondent No.2, submits that the respondent No.2 has no objection in the event of quashing the proceeding in view of the compromise agreement, which is enclosed with the petition as Annexure-‘C’.

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6. Per contra, Mr. K. Angami, learned Public Prosecutor for the State of Nagaland, has vehemently opposed the petition and submits that the offence is heinous in nature and it is against the society and the same cannot be quashed in view of the judgment of Hon’ble Supreme Court in the case of State of

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Madhya Pradesh Vs. Laxmi Narayan & Ors. , reported in (2019) 5 SCC 688 , and therefore, it is contended to dismiss the petition.

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7. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also carefully gone through the case laws referred by the learned Advocates of both sides.

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8. It is not in dispute that the case was registered under Sections 354A(i)/363/376 of the Indian Penal Code read with Sections 4/8 of the POCSO Act, on the basis of F.I.R. lodged by the mother of the victim girl on 29.05.2022, alleging that her daughter was forcefully raped by an unknown person on 28.05.2022. Upon the said F.I.R., the Officer-In-Charge, Women Police Station, Kohima, Nagaland, registered Kohima Women P.S. Case No. 007/2022, under Sections 354A(i)/363/376 of the Indian Penal Code read with Sections 4/8 of the POCSO Act, and started investigation and arrested the petitioner and forwarded him to jail hazoot. It is also not in dispute that thereafter, the parents of the accused and the victim decided to settle the matter out of Court and they have entered into one compromise agreement on 14.06.2022, and on the basis of the said agreement, the present petition is filed by the father of the petitioner. There is no dispute that the offences are serious in nature and the learned Public Prosecutor, Nagaland, has persistently submitted that the offences are against the society and the proceeding cannot be quashed on the basis of compromise settlement arrived at by the parties. There appears to be substance in the submission of learned Public Prosecutor and the ratio laid down in Laxmi Narayan (supra), referred by him also strengthened his submission.

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9. It is to be noted here that in Laxmi Narayan (supra) , the Hon’ble Supreme Court, relying on 2 (two) other judgments- Gian Singh Vs. State of Punjab

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[(2012) 10 SCC 303] and Narinder Singh Vs. State of Punjab [(2014) 6 SCC 466 , in paragraph No. 13, has held as under:-

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“ (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;

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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;

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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;

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… ..

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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 impact 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. “

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10. Again, in the case of Dineshbhai Chandubhai Patel Vs. The State Of Gujarat, reported in (2018) 3 SCC 104 , following earlier decision in State Of West Bengal & Ors vs Swapan Kumar Guha & Ors. , reported in (1982) 1 SCC 561 , it has been held that High Court cannot decide the issue arising out of the case like an investigating agency or/and appellate authority decides, by little realizing that it was exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure.

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11. In the case of Swapan Kumar Guha (supra) , it was held that right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power to investigate into cognizable offences.

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12. In the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & Ors. (2021 SCC OnLine SC 315) , the Hon’ble Supreme Court has held as under:

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“ i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

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ii) Courts would not thwart any investigation into the cognizable offences;

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iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

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iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).

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v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

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vi) Criminal proceedings ought not to be scuttled at the initial stage;

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vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

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viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two

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specific spheres of activities and one ought not to tread over the other sphere;

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ix) The functions of the judiciary and the police are complementary, not overlapping;

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x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

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xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

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xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

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xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

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xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

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xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the

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allegations in the FIR;

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xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226of the Constitution of India.

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xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

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xviii) ……………………………………………………………………..”

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13. The proposition of law that can be crystallized from the discussion made herein above is that the power under Section 482 of the Code of Criminal Procedure cannot be exercised in those prosecution cases which involve heinous and serious offence of mental depravity or offence like murder, rape, dacoity etc. Such offences are not private in nature and have a serious impact upon

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society.

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14. In the case in hand, admittedly, the accused has committed the offence under Sections 354 A (i)/363/376 of the Indian Penal Code read with Sections 4/8 of the POCSO Act. The factual foundations of the aforementioned offences are being laid in no uncertain terms in the FIR. The offences, as held by the Hon’ble Supreme Court consistently in the aforementioned cases, are heinous in nature and involve mental depravity and the same are not private in nature and have serious impact upon the society.

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15. The petitioner, however, has taken a plea that the victim girl has not disclosed her age at the time of commission of the offence and willfully participated in the same. The learned counsel for the petitioner also submitted during argument that had her age been disclosed earlier, such type of incident would never happened. This being the another major ground taken by the petitioner now, what left to be seen is whether at this stage this court can consider defence plea, so taken by the petitioner. While dealing with similar issues, Hon’ble Supreme Court in the case of Mohd. Akram Siddiqui v. State of Bihar reported in (2019) 13 SCC 350, has held as under:-

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“ 5. Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung v. Essem Chemical Industries; State of Haryana v. Bhajan Lal and Harshendra Kumar D. v. Rebatilata Koley to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered.”

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16. In the case of CBI v. Arvind Khanna, reported in (2019) 10 SCC 686, Hon’ble Supreme Court has held as under :-

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“ 17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is

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not sustainable. In a petition filed under Section 482 Cr.P.C, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.

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18. In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for.”

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17. Thus, the law is fairly well settled that at the time of quashing the F.I.R., the defence plea of the petitioner/accused is not required to be considered. Therefore, this court is unable to record concurrence with the submission of the learned counsel for the petitioner and cannot be acceded to.

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18. The learned counsel for the petitioner, however, made an attempt to distinguish the present case with the cases referred herein above, yet, such submission left this Court unimpressed in as much as it has consistently been held by the Hon’ble Supreme Court that rape, dacoity and murder are serious offences involving mental depravity and the same are not private in nature and they have serious impact upon the society.

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19. I have also carefully gone through the case laws referred by Mr. Joshua Sheqi, the learned counsel for the petitioner, and I find that the said observation were made by the Court while dealing in appellate stage only after the trial. And this Court is dealing with a petition under Section 482 of the Code of Criminal Procedure, where the investigation is still being carried out. Therefore, the observation made in the aforementioned cases cannot be pressed into service in a proceeding under Section 482 of the Code of Criminal Procedure. The law in this regard is well settled in the case of Niharika Infrastructure (supra).

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20. Thus, having carefully considered the submissions of learned Advocates

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of both sides and also carefully considering the facts and circumstances on the record, I find no merit in this petition and accordingly, the same stands dismissed. The parties have to bear their own costs.

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Sd/-

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JUDGE

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Comparing Assistant

Shri. Khehoshe Chishi v. the State of Nagaland and Anr.

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Shri. Khehoshe Chishi v. the State of Nagaland and Anr.

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