Esaiki Muthuraja v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.12.2020

CORAM:

THE HONOURABLE MRS.JUSTICE J.NISHA BANU Crl.O.P.(MD)No.15588 of 2020 Esaiki Muthuraja ... Petitioner vs.

1)State: Inspector of Police, Thermal Nagar Police Station, Tuticorin District.

Crime No.23/2019 2)Roshlin Balaji 3)B.Arthi ... Respondents PRAYER : Criminal Original Petition is filed under Section 482 of Cr.P.C, to call for the records relating to the Spl.S.C.No.50/2019 on the file of the POCSO Special Court, Tuticorin, Tuticorin District and quash the same.

For Petitioner : Mr.Ka.Ramakrishnan For R1 : Mr.V.Neelakandan Additional Public Prosecutor For R2 & R3 : Mr.S.Veerapandi Selvaraj

O R D E R

This Criminal Original Petition has been filed to call for the records relating to the Spl.S.C.No.50/2019 on the file of the POCSO Special Court, Tuticorin, Tuticorin District and quash the same. 2.Originally, based on the complaint of the 2nd respondent/mother of the victim girl, the FIR in Crime No.23/2019 was registered under 'girl missing' and later on during investigation it was found that the petitioner by promising to the 3rd respondent/victim girl who was a minor, that he would marry her only, brought her to Kodaikanal and had sexual intercourse on several occasions and therefore, the FIR was altered to Sections 366 and 417 IPC and Sections 5(iv)(a) r/w 6 of POCSO Act, 2012 and after filing of the charge sheet, the same was taken on file in Spl.S.C.No.

50/2019 on the file of the POCSO Special Court, Tuticorin, Tuticorin District, and the same is pending. 3.The learned counsel for the petitioner would state that now at the intervention and advice of the elders, the 2nd respondent/defacto complainant has decided to withdraw her complaint and accordingly, a compromise memo has been filed before this Court. Hence, this petition.

4.The 2nd respondent/defacto complainant, 3rd respondent/victim girl as well as the petitioner/accused are present before this Court and they are identified by the respective learned counsel and both 1/7

the parties have filed a joint compromise memo stating that the matter has been amicably resolved between themselves and the 2nd respondent/defacto complainant is not willing to prosecute the case and therefore, the petitioner would pray for quashing the proceedings in Spl.S.C.No.50/2019 on the file of the POCSO Special Court, Tuticorin, Tuticorin District.

5.The compromise memo is filed before this Court and the parties along with their respective counsel are also personally present before this Court today and the defacto complainant has represented before this Court that the matter has been settled amicably between the parties. The learned Additional Public Prosecutor who was present in the Court had also verified their identity and would state that he has no objection for the above compromise.

6.It is a 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.

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

''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.

serious impact on society."

8.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:

''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. 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 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.

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.

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."

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

''(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 3/7

powers which inherent in the High Court.

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

(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.

(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.

(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.

(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.

(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.

(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.

(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 4/7

(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.''

10.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:

"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;

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;

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;

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 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, 5/7

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; v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of noncompoundable 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."

11.So, keeping the above principles in mind and taking into consideration the facts and circumstances of the present case on hand, where the 2nd respondent/defacto complainant appeared before this Court and had stated that at the intervention and advice of the family elders, she entered into the above compromise, this Court is inclined to quash the criminal proceedings.

12.Accordingly, the proceedings in Spl.S.C.No.50/2019 on the file of the POCSO Special Court, Tuticorin, Tuticorin District, are quashed and the Criminal Original Petition is allowed. The compromise memo shall form part and parcel of this order. Sd/- Assistant Registrar // True Copy // / /2021 Sub Assistant Registrar(CS) bala ENCL : Xerox copy of Joint Compromise Memo.

To 1)The Judge, POCSO Special Court, Tuticorin, Tuticorin District.

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2)The Inspector of Police, Thermal Nagar Police Station, Tuticorin District.

3)The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

ORDER MADE IN Crl.O.P.(MD)No.15588 of 2020 DATED : 23.12.2020 mk(CO) KK(20.01.2021) 7P 4C 7/7