Taba Keku and Anr. Vs The State of Ap

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GAHC040008542025

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

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Case No. : Crl.Petn./113/2025

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Taba Keku and Anr Son of Late Taba Tubin, resident of Village Upper Balijan, PO and PS Balijan, Papum Pare District, Arunachal Pradesh. 2: Smti Dokushree Basumatary @ Neha Basumatory Age: Occupation : Wife of Shri Rajesh Basumatary a resident of Balijan PO and PS Balijan Papum Pare District Arunachal Pradesh VERSUS The State of AP represented by the PP of AP

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Advocate for the Petitioner : N Rama, Dindo Boni,Teshi Aaku,T Rahul,N Kanu,N Kuma,P Tatam

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Advocate for the Respondent : P P of AP,

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BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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ORDER

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Date : 02-06-2025

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Heard Mr. N. Rama, learned counsel for the petitioners and Ms. L. Hage, learned Additional Public Prosecutor, Arunachal Pradesh, appearing for the State respondent.

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2. The petitioners have instituted the present proceeding, assailing the institution of Balijan, P.S. Case No. 3/2009, under Sections 354A(i)(ii)/323/448 of the IPC (corresponding to G.R. Case No. 57/2011), registered basing on an FIR lodged in the matter by the petitioner No. 2 against the petitioner No. 1. The petitioners have also prayed for quashing of the Charge-sheet, being Charge-sheet No. 4/2009, lodged by the investigating agency in G.R. Case No. 57/2011.

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3. The petitioner No. 2 has lodged an FIR against the petitioner No. 1, inter alia, stating therein that, on 02-03-2009, the petitioner No. 1, in an intoxicated condition, had entered inside her house and directly touched her body and had uttered a bad proposal to her for sexual intercourse. She contended that she had not accepted the said proposal and, resultantly, the petitioner No. 1 had physically assaulted her. It was contended that the said incident had occasioned in the presence of three persons who were present inside her house. The police on receipt of the said FIR had proceeded to register the same as Balijan P.S. Case No. 3/2009, under Section 456/354/506, IPC.

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4. On conclusion of the investigation, the police have submitted a Chargesheet in the matter against the petitioner No. 1, by Charge-sheet No. 4/2009,

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dated 27-04-2009. The said matter is presently pending trial before the Court of the Chief Judicial Magistrate, Balijan.

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5. After submission of the said Charge-sheet in the matter, it is seen that the petitioners herein, i.e. the informant and the accused, have entered into a discussion and have mutually resolved the dispute arising in the matter. On resolution of such dispute existing in the matter, the petitioners had reduced the same in writing in the form of a Deed of Mutual Settlement, dated 28-01-2025. In terms of the said Deed of Mutual Agreement, the petitioners had agreed to bury the resentment arising on account of the incident that had occasioned on 03-03-2009, which was contended to have so occasioned on account of certain misunderstanding and the intoxicated condition the petitioner No. 1 was in. It was further projected in the said Settlement Deed that the petitioners, presently, had established a cordial relationship between them and accordingly the petitioner No. 2 was not desirous to pursue the FIR registered as Balijan PS Case No. 3/2009.

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6. From the materials brought on record, it is revealed that petitioner No. 1 had committed the assault on the petitioner No. 2 while being intoxicated, it is further seen that the injuries sustained by the petitioner No. 2 on account of the assault made on her by the petitioner No. 1 were all simple in nature.

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7. The Charge-sheet having been submitted and therein, offences under noncompoundable sections having also been incorporated, the petitioners have jointly instituted the present proceeding, praying for quashing of the criminal case, presently pending trial in GR Case No. 57/2011.

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8. I have considered the submissions advanced by the parties and also considered the materials available on record.

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9. The issue arising in the present proceedings is, as to whether this Court has the power, under Section 528 of the BNSS, 2023 to quash criminal proceedings involving non-compoundable offences in view of the compromise arrived at between the parties. The said issue, more particularly, with regard to matrimonial disputes/offences was considered by the Hon’ble Supreme Court in the case of B. S. Joshi V. State of Haryana & Another , reported in (2003) 4 SCC 675 and the Hon’ble Apex Court, categorically held that the exercise of jurisdiction under Section 528 of the BNNS could not be inflexible or could there be lying a rigid formula to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case, but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It was further held that it is well settled that these powers have no limit, of course, where there is more power; it becomes necessary to exercise utmost care and caution while exercising such powers. Having held so, the Hon’ble Apex Court observed and concluded as follows:-

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“12. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes.

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The observations made by this Court, though in a slightly different context, in G.V. Rao v. L.H.V. Prasad & Ors. [(2000) 3 SCC 693] are very apt for determining the approach required to be kept in view in matrimonial dispute by the courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who

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could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts.

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There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.

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In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 528 of the Code.”

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10. The decisions rendered by the Hon’ble Apex Court, in the case of B. S. Joshi (supra) came to be doubted when the Special Leave Petitioner in Gian Singh V. State of Punjab came up for hearing before a two bench Judge and accordingly the matter was referred to a larger bench. The larger bench of the Hon’ble Supreme Court, in its decision in the case of Gian Singh V. State of Punjab and

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Anr. , reported in (2012) 10 SCC 303 has held that the case of B. S. Joshi (supra) was correctly decided and held as follows:-

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“58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavor having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R, if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive.

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Each case will depend on its own facts and no hard and fast category can be prescribed. 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 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 flavor 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 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

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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.”

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11. The above referred decision of the Hon’ble Supreme Court mandates that the offences which are non-compoundable cannot be compounded by a criminal Court in purported exercise of its powers conferred under Section 482 of the Code. It further held that any such attempt by the Court would amount to alteration, addition and modification of the provisions of Section 320 of the Code, which is the exclusive domain of the Legislature. Nevertheless, the Hon’ble Court held that the limited jurisdiction to compound an offence within the framework of Section 320 of the Code is not an embargo against invoking inherent powers by the Court vested in it under Section 482 of the Code. Having perused the said decision of the Hon’ble Supreme Court, this Court is of the considered view that the conclusions drawn by the Hon’ble Supreme Court in the matter would also apply to the provisions of Section 528 of the BNSS, 2023. Accordingly, this Court is of the considered view that keeping in view of the particular facts and circumstances of the matter and for justifiable reason, this Court can invoke the provisions of Section 528 of the BNSS, in aid to prevent abuse of the process of any Court and/or to secure the ends of justice.

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12. This Court, therefore, having regard to the nature of offence and the fact

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that the parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its power under Section 528 BNSS, 2023 even if the offences are non-compoundable.

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13. This Court, can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system. Criminal proceedings involving non-heinous offences or where the offences are pre-dominantly of a private nature can be annulled irrespective of the stage the criminal proceedings are at.

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14. Having noticed the powers available to this Court, under the provisions of Section 528 of the BNSS and weighing upon the peculiar facts and circumstances involved in the present proceedings, I am inclined to invoke the inherent powers of this Court, under Section 528 BNSS, 2023 and quash the criminal proceedings existing against the petitioner No. 1 for the following reasons:-

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Firstly, the occurrence involved in the present proceedings can be categorized as a private dispute between the petitioners having overtones of criminal proceedings of private nature.

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Secondly, the offence as alleged against the petitioner No. 1, does not appear to exhibit mental depravity of the petitioner no. 2 or, the commission of the said offence cannot be said to be of such a serious nature that quashing of which would override public interest.

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Thirdly, even after lodging of the said FIR dated 03-03-2009, the

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petitioners having reconciled their differences and they on their own volition, without any coercion or compulsion, willingly and voluntarily had buried their differences which was also reduced in writing by executing a Deed of Settlement dated 28-01-2025. Further, in view of the settlement arrived at between the petitioners, the conviction of the petitioner No. 1 appears to be bleak.

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Lastly, the cause of administration of criminal justice system would remain un-effected on acceptance of the amicable settlement between the parties.

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15. In view of the conclusions reached herein above and having considered the offence involved in the matter and the reconciliation arrived at between the petitioners, this Court, in exercise of the powers conferred under Section 528 of the BNSS, 2023, quash the criminal proceedings pending before the Court of learned Chief Judicial Magistrate, Balijan against the petitioner No. 1 and consequently, the G.R. Case No. 57/2011, under Sections 354A(i)(ii)/323/448 of the Indian Penal Code (arising out of Balijan P.S. Case No. 03/2009) along with the FIR dated 03-03-2009 and the Charge-sheet, being Charge-sheet No. 04/2009, stands quashed.

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16. The criminal petitioner is accordingly allowed in terms of the above.

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JUDGE

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Taba Keku and Anr. v. The State of Ap

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