Xxx Vs State of Kerala — Cheque Dishonour | Kerala HC (2021)

Xxx Vs State of Kerala — Cheque Dishonour | Kerala HC (2021)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MRS. JUSTICE SHIRCY V.

THURSDAY, THE 2^ND DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943

CRL.MC NO. 249 OF 2021

CRIME NO.144/2018 OF PERAMBRA POLICE STATION, KOZHIKODE

PETITIONER/ACCUSED:

XXXXXXX

BY ADV P.V.ANOOP

RESPONDENTS/COMPLAINANT & STATE:

1 STATE OF KERALA

REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

2 VICTIM

BY ADV K.V.SREERAJ

OTHER PRESENT:

C.N.PRABHAKARAN- SR.P.P

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON 02.09.2021 PASSED THE FOLLOWING:

Crl.M.C.249/2021

2

ORDER

DATED THIS THE 2ND DAY OF SEPTEMBER, 2021

The petitioner, who is the sole accused in Crime No. 144 of 2018 of Perambra Police Station, registered for the offence punishable under Section 376 of Indian Penal Code, has filed this application under Section 482 of the Code of Criminal Procedure to quash the FIR.

The prosecution allegation is that the petitioner/accused is a person who is quite familiar to the defacto complainant. On 05.03.2018 while she was on her way back to her house after her work, the petitioner offered a lift to her in his vehicle to drop at her residence and when she got into the vehicle, he took her to the residential house of one of his relatives at Payyoli by about 23 hrs and committed rape on her, thereby he committed the aforesaid

offence.

Crl.M.C.249/2021

3

The learned counsel for the petitioner has submitted

that the petitioner has not committed any offence as alleged by the prosecution and now the entire matter has been settled between the parties and they are living together. An affidavit has also been sworn to by the defacto complainant/2^nd respondent stating that now they are living together. Hence, this petition to quash Annexure A FIR.

Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.

The offence alleged against the petitioner is under Section 376 of Indian Penal Code (for short IPC). This application is filed by the petitioner with a plea to quash the FIR exercising the inherent powers of this Court as the dispute has been settled amicably and the petitioner and the defacto complainant are living together. As referred above the 2^nd respondent, the defacto complainant, in the affidavit stated that she has no complaints against the petitioner and

Crl.M.C.249/2021

4

now she has no intention to proceed against him. So, the question posed for consideration is whether the FIR registered for an offence of rape alleged to have been committed by the petitioner could be quashed and whether the consequent criminal proceedings, if any, initiated thereto, also could be quashed in view of the compromise arrived at between the parties exercising the power under

Section 482 of Cr.P.C. The Apex Court in a catena of decisions laid down the principles, which govern the exercise of the jurisdiction of the Court and held that the inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose to prevent abuse of process of the court and with the object of advancement of justice and that the powers under Section 482 of the Cr.P.C. is an exception and not the rule which should be used sparingly with great caution and circumspection. Here, the main offence alleged is rape. It is incontrovertible that the charge levelled against

Crl.M.C.249/2021

5

the petitioner is of serious nature. Of-course the petitioner and the defacto complainant may be living together. Whether on that ground the criminal proceedings are liable to be quashed to secure the ends of justice and to prevent the abuse of process of the court etc, have to be analysed on the basis of the guiding principles laid down by the Honourable Supreme Court.

The Apex Court in Gian Singh v. State of Punjab ((2012) 10 SCC 303) had delineated the guidelines and limitations on exercise of power to quash criminal proceedings involving non-compoundable offences in view of compromise arrived at between the parties. It was held as under:

“61. The position that emerges from the above discussion can be summarised 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

Crl.M.C.249/2021

6

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 FIR may be exercised where the offender and the 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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions of 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, the High Court may quash the criminal proceedings if

Crl.M.C.249/2021

7

in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to a end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

7. In Narinder Singh and others v. State of Punjab

and another ((2014) 6 SCC 466) the Apex Court reiterated the same principles in the following words:

"29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not

Crl.M.C.249/2021

8

compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3. Such a power is not be exercised in those prosecutions which involve 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. Similarly, for offences alleged to have been committed under special statute like the 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”.

In Parbatbhai Aahir v. State of Gujarat ((2017)

9 SCC 641), the Apex Court has elaborately considered the

Crl.M.C.249/2021

9

scope and ambit of Section 482 of Cr.P.C. again and summarized the propositions as follows:-

"16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

16.2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is noncompoundable.

16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

16.5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the

Crl.M.C.249/2021

10

offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the

Crl.M.C.249/2021

11

financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

Rape is a very serious offence and it is doubtless

that it is not an offence of private in nature but is also an offence towards society. It is worse than murder as humiliating and horrifying experience are caused to the victim and so it is considered as the most heinous, brutal and cruel crime against a woman. Here, the learned counsel has no argument that the essential ingredients to attract an offence under Section 376 are not available and that the allegations set out in the case do not constitute the offence alleged. In short, the petitioner has no case that, the case has been maliciously instituted and he is falsely implicated

with an ulterior motive and as such no offence is made out.

Crl.M.C.249/2021

12

But only on the basis of the alleged settlement between the parties, the petitioner has sought for an order to quash the FIR as well and further proceedings initiated in the case, in exercise of the jurisdiction under Section 482 Cr.P.C. Rape is not only a very serious and inhumane offence committed towards the victim alone, but also, it cause very serious impact upon her relatives and the society as a whole. When the magnitude of the crime is so grave and heinous as such to shock the sense of justice, settlement between the parties is not a matter for consideration to quash the proceedings in a criminal case. At the risk of repetition, I would say that the argument that, now the defacto complainant is living happily with the petitioner is not at all a valid ground or justifiable reason or decisive factor for consideration to quash the criminal proceedings as sought for. Therefore, the compromise and settlement entered between the parties are

not accepted to hold that the allegations do not make out a

Crl.M.C.249/2021

13

case against the petitioner. Hence, it is made clear that the

prosecution has to proceed with the matter at the earliest as

the FIR registered against the petitioner is not liable to be

quashed as prayed for.

Dismissed.

Sd/-

SHIRCY V JUDGE

sb

Crl.M.C.249/2021

14

APPENDIX OF CRL.MC 249/2021

PETITIONER ANNEXURE ANNEXURE A TRUE COPY OF THE FIR IN CRIME NO.144/2018 OF PERAMBRA POLICE STATION. ANNEXURE B AFFIDAVIT SWORN BY THE SECOND RESPONDENT DATED 30.12.2020.