Quashed

Parveez Pasha v. the State of Karnataka

Karnataka HC15 Jul 2022CRL.P/1267/2022

Case brief

AI extract

What is this about?

Petitioner husband sought quashing of FIR for offences under Sections 376, 417, 420, and 506 IPC. After 16 years of marriage and a child, parties settled amicably. High Court invoked inherent powers to quash proceedings in interest of justice.

What did the court decide?

The proceedings in S.C.No.188/2018 arising from Crime No.111/2006, pending before VII Additional District and Sessions Judge, Mysuru, are quashed.

Parveez Pasha Vs the State of Karnataka — Cheque Dishonour | Karnataka HC (2022)

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CRL.P No. 1267 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 1267 OF 2022

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BETWEEN:

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PARVEEZ PASHA S/O.AMEER PASHA AGED ABOUT 37 YEARS R/AT NO.345, 7^TH MAIN C LAYOUT, HANUMANTHANAGARA BANNIMANTAP MYSURU 570 015

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…PETITIONER

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(BY SRI ABUBACKER SHAFI, ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA BY MAHILA POLICE STATION MYSURU CITY REPRESENTED BY S.P.P HIGH COURT BUILDING BENGALURU 560 001

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NEELUFAR W/O.PARVEEZ PASHA D/O.ASLAM PASHA AGED ABOUT 37 YEARS RA/T NO.417/A, 9^TH CROSS RAJENDRANAGAR, KESRE MYSURU 570 007

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IBRAHIM PASHA S/O.PARVEEZ PAHSHA AND NEELUFAR

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CRL.P No. 1267 of 2022

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AGED ABOUT 16 YEARS

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SINCE MINOR REP. BY HIS MINOR GUARDIAN MOTHER NEELUFAR RA/T NO. 417/A, 9TH CROSS RAJENDRANAGAR, KESARE MYSURU 570 007

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…RESPONDENTS

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(BY SRI K.S.ABHIJITH, HCGP FOR R-1; SRI K.SHASHIKANTH PRASAD, ADVOCATE FOR R-2 & R-3)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE FIR DATED 09.11.2006 IN CR.NO.111/2006 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 417, 420 AND 506 OF IPC AND CHARGE SHEET LAID DATED 29.01.2007 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 417, 420 AND 506 OF IPC BY RESPONDENT NO.1POLICE AND CAME TO BE NUMBERED AS C.C.NO.143/2007 ON THE FILE OF IV ADDITIONAL CIVIL JUDGE (Sr.Dn) AND JMFC, MYSURU AND SUBSEQUENTLY, ON 21.06.2018 COMMITTED ON THE BASIS OF DNA-REPORT TO THE HON’BLE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU AND MADE OVER TO VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU WITH S.C.NO.188/2018 AND ON 28.06.2019 CHARGES WERE RE-FRAMED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376, 417, 420, 506 OF IPC AND THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER PENDING ON THE FILE OF THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE AT MYSURU IN S.C.NO.188/2018 AND ETC.

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THIS CRIMINAL PETITION COMING ON FOR REPORTING SETTLEMENT , THIS DAY THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner is before this Court calling in question the proceedings in S.C.No.188/2018, which arose out of a crime registered on 09.11.2006 in Crime No.111/2006, pending

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before the VII Additional District and Sessions Judge, Mysuru, which was registered for the offences punishable under Sections 417, 420 and 506 of IPC.

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Heard Sri Abubacker Shafi, learned counsel for the petitioner, Sri K.S.Abhijith, learned High Court Government Pleader for respondent No.1 and Sri K. Shashikanth Prasad, learned counsel for respondent Nos.2 and 3.

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The Police after investigation in crime No.111/2006, have filed a charge sheet on 29.01.2007 for offences punishable under Sections 417, 420 and 506 of IPC. The case later came to be registered as CC.No.143/2007. At the time of tendering of evidence by the parties, the prosecution sought for a DNA test to be conducted as the accused and the complainant by then had married and had a son of 14 years. The DNA test confirms the fact that the son was the child of both the complainant and accused. It is after the DNA test, charges were altered and Section 376 of the IPC was incorporated into the array of charges, against the accused. The case then becomes SC.No.188/2018, after its committal.

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The parties to the lis are now the husband and wife,

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married for 16 years, have filed the present petition for settlement of dispute and closure of proceedings against the husband. The terms of settlement reads as follows:

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“JOINT MEMO

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The undersigned counsels submit that, the parties are living together as husband, wife and son and intending to settle the case and urges most humbly before this Hon’ble court to set-aside and quash the entire proceedings on the file of 7^th Additional District and Session Judge at Mysore in SC No.188/2018 for the offences punishable under section 376,417,420 and 506 of IPC. Further this will enable the parties to live a happy, peaceful and serene family life. Hence seek the justice from the hands of this Hon’ble court in the interest of justice.”

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In support of the terms of settlement, the parties have

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filed their respective affidavits deposing that the couple got married in the year 2006 and have a child of 16 years as on date and have produced all the material to demonstrate that they were married in the year 2006-07 and the DNA test that was conducted prior to incorporation of offence punishable under Section 376 of IPC clearly indicated, that the son was

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that of the couple i.e., complainant and the accused. Therefore, further vindication of the fact that they are the couple or he is their son, is not required.

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It is germane to notice the order passed by this Court with regard to closing of proceedings on acceptance of settlement despite the offence being punishable under Section 376 of the IPC, by following the judgments of the Apex Court and this Court. This Court in Crl.P.No.4172/2022 disposed on 23.05.2022, has made the following observations:

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“7. The Apex Court in the case of PRASHANT BHARTIYA v. STATE OF DELHI¹ has held as follows:

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“Leave granted.

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We have heard learned counsel for the parties and considered the material on record.

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Respondent No.2 had lodged a complaint alleging, inter alia, that the appellant had committed an offence under Section 376 of the Indian Penal Code. It is undisputed that both the accused (appellant) and respondent No.2 were living together for a considerable while. The complainant’s allegation is that the appellant duped her by misrepresenting to her that he is divorced. The complainant, according to the accused, is not unmarried and her marriage subsists.

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1 Crl.A.No.708 of 2021 decided on 30-07-2021

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CRL.P No. 1267 of 2022

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During pendency of the proceedings, the parties were referred to mediation having regard to the fact that a child was born in the meanwhile (i.e., in the year 2018). As a consequence, a mediated settlement limited to the maintenance and upkeep of the child was arrived at by them.

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Having regard to these facts and the submissions made on behalf of the complainant – who does not dispute that this may not be an appropriate case for pursuing the prosecution further, this Court is of the considered view that the criminal proceedings must be quashed.

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In the peculiar circumstances of the present case, the impugned judgment of the High Court is set aside; the FIR (No. 616) and all consequent proceedings be quashed. It is, however, made clear that this order will not come in the way or in any manner prejudice the contentions of the parties in any other pending proceedings, which shall be decided in accordance with law.

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The appeal is allowed to the above extent.

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Pending application, if any, stands disposed

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of.”

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The Apex Court, again in the case of K.DHANDAPANI v. THE STATE BY THE INSPECTOR OF POLICE² , has held as follows:

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“Leave granted.

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The appellant who is the maternal uncle of the prosecutrix belongs to Valayar community, which is a most backward community in the State of Tamilnadu. He works as a woodcutter on daily

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2 Crl.A.No.796 of 2022 decided on 9-05-2022

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wages in a private factory. FIR was registered against him for committing rape under Sections 5(j)(ii)read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012. He was convicted after trial for committing the said offences and sentenced to undergo rigorous imprisonment for a period of 10 years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on 31.10.2018. The High Court, by an order dated 13.02.2019, upheld the conviction and sentence. Aggrieved thereby, the appellant has filed this appeal.

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Mr. M.P.Parthiban, learned counsel appearing for the appellant, submitted that allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. He stated that, in fact, he married the prosecutrix and they have two children.

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The appellant submitted that this Court should exercise its power under Article 142 of the Constitution and ought to do complete justice and it could not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

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After hearing the matter for some time on 08^th March, 2022, we directed the District Judge to record the statement of the prosecutrix about her present status. The statement of the prosecutrix has been placed on record in which she has categorically stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life.

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Dr. Joseph Aristotle S., learned counsel appearing for the State, opposed the grant of any

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relief to the appellant on the ground that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and second child was born when she was 17 years. He argued that the marriage between the appellant and the prosecutrix is not legal. He expressed his apprehension that the said marriage might be only for the purpose of escaping punishment and there is no guarantee that the appellant will take care of the prosecutrix and the children after this Court grants relief to him.

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In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with the maternal uncle.”

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8. This Court in V.PRABHU v. STATE OF KARNATAKA AND ANOTHER 3 has held as follows:

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“2. This petition is filed by the petitioneraccused under Section 482 of Cr.P.C., for quashing the criminal proceedings in C.C.No.28042/2021 pending on the file of I Additional Chief Judicial Magistrate, Bengaluru Rural District arising out of Cr.No.121/2021 registered by Kadugodi police station for the

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3 Crl.P. No.8754 of 2021 decided on 19-01-2022

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CRL.P No. 1267 of 2022

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offences punishable under Section 417, 376 of Indian Penal Code (for short 'IPC').

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3. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.

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4. During the pendency of this petition, both the parties, the petitioner and respondent No.2, have filed joint compromise application under section 320 read with 482 of Cr.P.C. Respondent No.2 and the petitioner submitted that they have compounded the offences and responded No.2 submits no objection for quashing the criminal proceedings against the petitioner. Both petitioner and respondent No.2 along with their counsels have appeared through video conference and the parties were identified by the respective counsel.

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5. The allegation against the petitioner is that he had sexual intercourse with the respondent No.2 under the pretext of marrying her, therefore the complaint came to be filed. Subsequently, both decided to resile from each other and compounded the offence, therefore both of them filed joint application for closing the matter. In view of the submission of both the parties having compounded the offence and in view of the judgment of the Hon'ble Supreme Court in the case of Gian Singh Vs. State of Punjab and Another wherein it is laid down where the parties have settled the dispute between them and the same is not affected to the public, the Court can quash the proceedings. In

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CRL.P No. 1267 of 2022

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view of the same, parties have settled the dispute amicably and therefore I.A.No.4/2022 requires to be allowed.

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Accordingly, I.A.No.4/2022 is allowed and subsequently, Criminal proceedings against the petitioner in C in C.C.No.28042/2021 pending on the file of I Additional Chief Judicial Magistrate, Bengaluru Rural District arising out of Cr.No.121/2021 registered by Kadugodi police station for the offences punishable under Section 417, 376 of IPC, is hereby quashed.”

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Again, this Court in H.S.CHANDAN v. STATE OF KARNATAKA AND ANOTHER4 has held as follows:

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“7. Respondent No.2 in Crl.P.No.1111/2022 has filed a complaint against the petitionerChandan H.S for the offences punishable under Sections 376 and 417 of IPC as the petitioner is said to be committed rape on her on the promise of marriage and the mother of the petitioner and accused have filed complaint against the victim for the offences punishable under Sections 468, 506 and 201 of IPC which is nothing but case and counter case filed between the parties.

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8. The counsel for respondent No.2 and respondent No.2 Crl.P.No.1116/2022 also appeared before the Court. Victim also present before the Court submits that the matter has been amicably settled between them. In view of the judgment of Hon'ble Supreme Court in the case of

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4 Criminal Petition No.1111 of 2022 c/w Criminal Petition 1116 of 2022 decided on 15-02-2022

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CRL.P No. 1267 of 2022

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Gian Singh vs. State of Punjab and Another reported in 2012 CRI.L.J.4934 wherein, it has been held that in cases where the parties have settled the dispute between them, the Court can quash the proceedings and this Court in various cases has also granted permission to quash the criminal proceedings even the offences under Sections 417 and 376 of IPC is involved. Even in view of amicable settlement between the parties and in view of judgment of Hon’ble Supreme Court in the case of Gian Singh stated supra, when the parties have settled their dispute amicably, the Court can quash the criminal proceedings. This Court in the case of Ismail vs. The State of Karnataka and another in Crl.P.No.2031/2020, dated 11.02.2022 and in the case of V. Prabhu vs. State of Karnataka and another in Crl.P.No.8754/2021, dated 19.01.2022 has quashed the criminal proceedings in similar circumstances.

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9. Therefore, in view of the settlement between the parties, the compromise filed by both the parties in both the case are accepted and permitted to compound their offences. Accordingly both the cases are allowed .

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10. The criminal proceedings against the parties in Crl.P.No.1111/2021 in respect of S.C.No.838/2021 (Crime No.28/2021) pending on the file of LIII Additional City Civil and Sessions Judge, Bengaluru (CCH-54) for the offence punishable under Sections 376, 417 and 313 of IPC and in Crl.P.No.1116/2022 in respect of C.C.No.25328/2021 (Crime No.28/2021)

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CRL.P No. 1267 of 2022

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registered by Sanjay Nagar Police Station, Bengaluru for the offences punishable under Sections 468, 506, 201 of IPC are hereby quashed.”

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9. It is also germane to notice the judgment of the High Court of Delhi in LALIT KUMAR VATS v. STATE OF NCT OF DELHI AND ANOTHER5whereby the Delhi High Court quashed the proceedings in an allegation pertaining to Section 376 of the IPC. The judgment rendered by the Delhi High Court reads as follows:

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“3. Vide the present petition, petitioner seeks direction thereby for quashing of FIR No.381 of 2020 dated 10-08-2020,for the offence punishable under Sections 376 IPC registered at Police Station – Kapashera, New Delhi and all other proceedings arising therefrom.

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4. Notice issued.

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5. Notice is accepted by learned APP for State and by the respondent No.2 and with the consent of counsel for parties, the present petition is taken up for final disposal.

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6. The present petition is filed on the ground that matter has been compromised between petitioner and the prosecutrix.

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7. The Prosecutrix is personally present in Court and has been identified by W/SI Chandra Kanta/IO of the case. She states that FIR was lodged out of anger reason being she and petitioner had an altercation on 9-08-2020. To this effect, she has not only filed affidavit but she also sought apology from this Court.

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5 Crl. M.C.No.2384 of 2020 decided on 4.12.2020

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CRL.P No. 1267 of 2022

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8. Since prosecutrix has made wrong statement which culminated into the present FIR, therefore, she is liable to be prosecuted under the law, however, she seeks unconditional apology and submits that she is a married woman having two children and her matrimonial life will be destroyed if the present case is sent for trial.

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9. Her unconditional apology is accepted.

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10. AS per the directions of the Hon’ble Supreme Court in Parbat Bhai Aahir and others v. State of Gujarat and other (AIR 2017 SC 4843), the FIR should not be quashed in case of rape as i9t is an henious offence, but when the respondent No.2/complainant/prosecutrix herself takes the initiative and file affidavits before this Court, stating that she made the complaint due to some mis-understanding and now wants to give quietus to the mis-understanding which arose between the petitioner and respondent No.2, in my considered opinion, in such cases, there will be no purpose in continuing with the trial. Ultimately, if such direction is issued, the result will be of acquittal in favour of the accused, but substantial public time shall be wasted.

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11. This Court is conscious about the dictum of the Supreme Court in terms of seriousness of the case, however, keeping in view the settlement arrived between the parties, this Court is inclined to quash the present FIR as no useful purpose would be served in prosecuting the petitioner any further. Moreover, petitioner is a well educated person. He holds various educational degrees including MBA and CS-Executive, as evidenced by the documents annexed hereto as Annexure-P6. The petitioner is currently preparing for CS-

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CRL.P No. 1267 of 2022

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Professional and UPSC examinations. Continuation of the proceedings will affect his prospects in clearing examinations.

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12. For the reasons afore-recorded, quashing of FIR No.381/2020 dated 10-08-2020, registered at Police Station – Kapashera, New Delhi and all other proceedings arising therefrom are quashed.

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13. The petition is, accordingly, allowed and disposed of.”

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In the light of the afore-extracted order, which also contains the judgments rendered by the Apex Court, this Court and that of Delhi High Court, what requires to be noticed is, the closure of proceedings on account of settlement arrived at between the parties even for offence punishable under Section 376 of the IPC, being permissible.

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In the peculiar facts of this case and in the light of the settlement arrived at between the parties, more particularly, the fact that the complainant and the accused are husband and wife for more than 16 years and have a son of 16 years, permitting further prosecution to be conducted against the accused in the teeth of the aforesaid facts will only be to the

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satisfaction of the prosecution and would not result in a fair trial. Therefore, I deem it appropriate to accept the settlement between the parties and terminate proceedings notwithstanding the fact that the offence punishable under Section 376 of IPC, owing to peculiar facts of this case.

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For the aforesaid reasons, the following:

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ORDER

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i. The criminal petition is disposed of .

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ii. The proceedings in S.C.No.188/2018, which arose out of a crime registered on 09.11.2006 in Crime No.111/2006, pending before the VII Additional District and Sessions Judge, Mysuru, stands quashed.

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Sd/JUDGE

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LB/nvj

Parveez Pasha v. the State of Karnataka

Case brief

What is this about?

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Parveez Pasha v. the State of Karnataka

Case brief

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