Allowed

Chella Prabhu v. The Inspector of Police

Madras HC18 Feb 2020CRL OP(MD)/2081/2020

Case brief

AI extract

What is this about?

A Criminal Original Petition was filed to quash proceedings against a petitioner who was involved in an affair with a minor victim. The victim later married the petitioner and they have children. Finding a joint compromise memo and that the dispute is resolved, the Court held the possibility of conviction remote and allowed the quash.

What did the court decide?

The proceedings in Spl.S.C.No.177 of 2018 in Crime No.439 of 2016 are quashed; terms of joint compromise memo form part of the order.

Chella Prabhu Vs The Inspector of Police — Child Custody and Guardianship | Madras HC (2020)

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Crl.O.P.[MD].No.2081 of 2020

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 18.02.2020

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CORAM:

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THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA Crl.O.P.[MD].No.2081 of 2020

1.Chella Prabhu

2.Chella Priya

: Petitioners

Vs.

1.The Inspector of Police, Nagamalai Puthukotai Police Station, Madurai District. (Crime No.439 of 2016)

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2.Soundaraya 3.Sanmugavalli : Respondents

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PRAYER : Criminal Original Petition is filed under Section 482 of Cr.P.C. to call for the records pertaining to the Charge Sheet in Spl.S.C.No.177 of 2018 on the file of the District and Sessions Court (Mahila), Madurai (Mahalir Neethi Mandram) in Crime No.439 of 2016 on the file of the respondent No.1 and quash the same.

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For Petitioners : Mr.R.Venkatesan For 1^st Respondent : Mrs.S.Bharathi Government Advocate (Crl. Side) For Respondents : Mr.S.Velmurugan

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Government Advocate (Crl. Side)

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2 and 3 for U.Dhanasekara Pandian

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ORDER

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The Criminal Original Petition has been filed to quash the proceedings in Spl.S.C.No.177 of 2018 on the file of the District and Sessions Court (Mahila), Madurai (Mahalir Neethi Mandram) in Crime No.439 of 2016 on the file of the respondent No.1, for the offences punishable under Sections 5(j)(ii), 6, 16, 17 of the Protection of Child from Sexual Offences Act, 2012 and 506(i) of IPC and Section 3 (1) (r) and 3(1) (w) (ii) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Section 109 of IPC.

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2.The learned counsel appearing for the petitioner would submit that the petitioners are brother and sister. It is the case, where the first petitioner and victim girl, who was then 16 years have fallen in love and they became very intimate and without understanding the rigors of the provisions of the POCSO Act, they indulged in consensual physical affair, resulting in, the victim girl getting pregnant. Since the first petitioner and the victim girl belong to different communities, there was misunderstanding between their families and thereby a complaint has been registered.

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Subsequently, the victim girl delivered child and after the victim girl attained majority, legal marriage was conducted between the first petitioner and the victim girl due to intervention of the parents of the petitioners as well as the victim girl and also due to intervention of the elders in both communities and families. Subsequent to the marriage, the victim has delivered two children and she is happily living with the first petitioner and his family members. He would further submit that the petitioners and their parents are taking care of the victim girl as well as her two children and they are living happily. He would further submit that in respect of the second petitioner other than the averments that the second petitioner helped her brother, no allegation has been made against her. Further, there is a good relationship between the family members of the petitioners and the de-facto complainant.

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3.Further, the parents of the victim girl are also in talking terms with the parents of the petitioners. The parents of the victim girl as well as the victim girl have filed necessary affidavits stating that the victim and two children are living happily with the petitioners and their family members.

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4.The victim girl/second respondent is also present before this Court today.

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5.The learned Government Advocate (Crl. Side), on instructions, would submit that the victim has married the first petitioner and that they have delivered two children. The marriage between the first petitioner and the second respondent/victim girl has been legally registered and the birth certificate of the children also disclose the names of the first petitioner and the defacto complainant as parents. Further, it is represented by the respondent police that the first petitioner and the second respondent are living happily at the house of the first petitioner and the first petitioner is working as professional painter.

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6.The case is under trial. By passage of time, the parties have decided to bury their hatchet and compromise the dispute amicably among themselves.

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7.A Joint Memo of Compromise has been filed before this Court, which have been signed by the petitioners and the respondents 2 and 3 and also by their respective counsel. The petitioners and the respondents 2 and 3 were also present in person before this Court and they were identified by Mr.A.Palanichamy, Special Sub-Inspector of Police. This Court also enquired both the parties and was satisfied that the parties have come to an amicable settlement between themselves.

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8.The case has been registered for offences under Sections 5(j) (ii), 6, 16, 17 of the Protection of Child from Sexual Offences Act, https://hcservices.ecourts.gov.in/hcservices/ 2012 and 506(i) of IPC and Section 3 (1) (r) and 3(1) (w) (ii) of

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the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Section 109 of IPC. It is settled law that the High Court has inherent power under Section 482 of the Code of Criminal Procedure to quash the criminal proceedings even for the offences which are not compoundable under Section 320 of the Code of Criminal Procedure, where the parties have settled their dispute between themselves. However, while quashing the criminal proceedings, based on the settlement arrived at between the parties, the High Court should act with caution and the power should be exercised sparingly only in order to secure the ends of justice and also to prevent abuse of process of any Court.

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9.In Gian Singh vs. State of Punjab [2012 (10) SCC 303] , the Supreme Court has held as follows:

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“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 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."

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10.In Narinder Singh v. State of Punjab [2014(6) SCC 466] , after considering the Gian Singh's case referred to above, the Hon'ble Supreme Court has held as follows:

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

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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:

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(i) ends of justice, or

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

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

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29.3. Such a power is not to 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 the 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.

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29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

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29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases."

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11.In Parbatbhai Aahir v. State of Gujarat [AIR 2017 SC 4843] , the Supreme Court held thus"

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“(1) Section 482 CrPC 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 inherent in the High Court.

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(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 https://hcservices.ecourts.gov.in/hcservices/

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of Section 320 CrPC. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

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(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.

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(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.

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(5) the decision as to whether a complaint or first information report should be quashed on the ground that the 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 formulate.

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(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.

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(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 insofar as the exercise of the inherent power to quash is concerned.

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(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.

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(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

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(10) There is yet an exception to the principle set out in Propositions (8) and (9) above. Economic offences involving the 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.”

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12.Recently, in State of Madhya Pradesh v. Laxmi Narayan [AIR 2019 SC 1296] , the Hon'ble Supreme Court, considering all the above judgments, has held as follows:

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"i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the noncompoundable 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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iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected

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sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

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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 impart 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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13.Keeping the above principles in mind, let us now consider the instant case as to whether it is a fit case to quash the criminal proceedings based on the settlement arrived at between the parties.

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14.In the case at hand, though the petitioners are charged with for the offences punishable under Sections 5(j)(ii), 6, 16, 17 of the Protection of Child from Sexual Offences Act, 2012 and 506(i) of IPC and Section 3 (1) (r) and 3(1) (w) (ii) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Section 109 of IPC, it seems now that, the petitioners and the respondents 2 and 3 have amicably settled their dispute between themselves. The petitioner and the second respondent got married and they have two children. The respondents 2 and 3 are also not interested in prosecuting the criminal proceedings. In view of the compromise between the parties, the possibility of conviction is also remote and bleak. In the above circumstances, continuity of the criminal proceedings would only cause oppression and prejudice to the parties, hence, in order to secure the ends of justice, this Court is inclined to quash the criminal proceedings.

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15.Accordingly, this Criminal Original Petition is allowed and as a sequel, the proceedings in Spl.S.C.No.177 of 2018 on the file of the District and Sessions Court (Mahila), Madurai (Mahalir Neethi https://hcservices.ecourts.gov.in/hcservices/

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Mandram), is quashed and the terms of joint compromise memo shall form part and parcel of this order.

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Sd/Assistant Registrar (Crl.side)

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// True Copy //

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/ /2020 Sub Assistant Registrar(CS)

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Encl: Xerox copy of Joint Compromise Memo.

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vsg To 1.The District and Sessions Court (Mahila), Madurai (Mahalir Neethi Mandram). 2.The Inspector of Police, Nagamalai Puthukotai Police Station, Madurai District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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18.02.2020

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SMA/12/03/2020/8P/4C

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