Kamlesh @ Kalander Chauhan v. State of U.P. and Anotehr

Court No. - 90 Case :- APPLICATION U/S 482 No. - 32677 of 2018 Applicant :- Kamlesh @ Kalander Chauhan Opposite Party :- State Of U.P. And Anotehr Counsel for Applicant :- Dinesh Kumar Yadav,Atmaram Nadiwal Counsel for Opposite Party :- G.A.,Mandeep Singh Hon'ble Dinesh Pathak,J.

¶1Heard learned counsel for the applicant, learned opposite party No. 2, learned AGA and perused the record.

¶2The present applicant has invoked the inherent power of this Court under Section 482 CrPC beseeching the quashing of charge sheet, cognizance order dated 27.6.2016 as well as entire criminal proceeding of Special Session Trial No. 37 of 2016 (State Vs. Kamlesh) arising out of the Case Crime No. 763 of 2016, under Sections 363, 366 and 376 IPC and 3/4 POCSO Act, 2012, Police Station Sarai Lakhansi, District Mau pending before Additional Session Judge, Court No. 1, Mau on the basis of compromise.

¶3Opposite Party No. 2 has lodged an FIR with an averment that the present applicant has enticed away her daughter, who is minor, and committed forceful sexual assault on her. Having considered the statement of the prosecutrix under Section 164 CrPC, this Court, vide order dated 27.9.2018, has granted interim relief to the present applicant. In her statement, the prosecutrix has admitted the factum of her marriage with the present applicant. In short counter affidavit filed on behalf of Opposite Party No. 2, she has admitted as well the factum of marriage between applicant and her daughter. In paragraph No. 6 of the affidavit, it is averred that they are blessed with two children aged five and six years. Having considered the marriage between the applicant and the prosecutrix, and the children born out of their wedlock, coupled with the intent of Opposite Party No. 2 to settle the dispute amicably, this Court, vide order dated 18.10.2023, has directed the parties to get their compromise verified and further the court concerned was directed to submit the verification report in this regard. For ready reference, the order dated 18.10.2023 passed by this Court is quoted hereinbelow: "1. Heard learned counsel for the applicant, learned counsel for opposite party No.2 as well as learned AGA for the State.

¶2It is submitted by learned counsel for the applicant that applicant has solemnized marriage with the daughter of the opposite party No.2 and blessed with two children. At later stage, both the parties have arrived at compromise and settled their dispute amicably, therefore, instant application may be allowed and criminal proceedings may be quashed.

¶3Learned counsel for opposite party No. 2 has nodded the factum of compromise took place between the parties and urged that in change of circumstances, opposite party No.2 is no more interested to prosecute the matter against the present applicant.

¶4In this conspectus, as above, both the parties are hereby directed to appear before the court below on 01/02.11.2023 and file their compromise application. Learned court below, on the compromise application being filed, shall verify the said compromise in the presence of the parties, after recording their statements, and submit his verification report within a period of one month from date of appearance of the parties.

¶5List this matter on 07.12.2023 along with verification report submitted by the court concerned, if any.

¶6Interim order, if any, is extended till the next date of listing"

¶4In pursuance of the order passed by this Court, Special Judge (Juvenile Court), Court No. 1/Additional Sessions Judge, Mau has submitted a verification report dated 18.11.2023 along with copy of the compromise verification order dated 17.11.2023, statement of accused applicant No. 1, statement of prosecutrix and statement of first informant. Perusal of the verification report/order reveals that both the parties have appeared before the court concerned and they have been identified by their respective counsel. In the statement, they have admitted the factum of compromise and marital relationship between the applicant and the daughter of the first informant. They have admitted the birth of two children as well.

¶5Learned counsel for the applicant submits that, in the above eventuality of the compromise took place between the parties and the compromise verification report dated 18.11.2023, the instant application may be allowed and the criminal proceeding initiated against the present applicant may be quashed. It is further submitted that both the parties have buried the hatchet and there is no grudges between them against each other. To quash the cognizance order as well as criminal proceeding, learned counsel for the applicant has relied upon the following judgments of the Hon'ble Apex Court :-

(i) B.S.Joshi & Others Vs. State of Haryana & Others; (2003) 4 SCC 675.

(ii) Nikhil Merchant Vs. Central Bureau of Investigation;

(2008) 9 SCC 667.

(iii) Manoj Sharma Vs. State & Others; (2008) 16 SCC 1.

(iv) Gyan Singh Vs. State of Punjab (2012) 10 SCC 303.

(v) Narindra Singh & Others Vs. State of Punjab (2014) 6 SCC

466.

¶6In a recent judgment passed by a Three Judges' Bench of the Apex Court in the Case of Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others Vs. State of Gujarat and another, reported in AIR 2017 SC 4843, Hon'ble Supreme Court has summarized the ratio of all the cases decided earlier with respect to quashing of F.I.R./charge-sheet/criminal proceeding on the ground of settlement between the parties and expounded the ten categories in which application under Section 482 could be entertained for quashing the F.I.R./charge-sheet/criminal proceeding on the basis of compromise. Para no. 15 of the said judgement summarizing the proposition in this respect is reproduced below:- "15. (i) Section 482 preserves the inherent power 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;

(ii) 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 non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or compliant 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;

(iv) 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;

(v) 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 formulated;

(vi) In 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 approximately 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;

(vii) 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;

(viii) 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;

(ix) 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

(x) There is yet an exception to the principle set out in propositions (viii) and (ix) 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."

¶7Learned AGA has no objection, in case, the instant application is decided by this Court on the basis of compromise took place between the parties, which is duly verified by the court concerned.

¶8Learned counsel for the opposite party No. 2 has nodded the factum of the compromise entered into between the parties and he has no objection, if the instant application is decided finally on the basis of the said compromise. He also submits that compromise was verified in presence of both the parties, who have voluntarily entered into compromise and opposite party no. 2 does not wants to prosecute the present case against the applicant any more as no dispute remains between the parties.

¶9Having considered the compromise verification report dated

18.11.2023, compromise verification order dated 17.11.2023 and with the assistance of the aforesaid guidelines, keeping in view the nature of gravity and severity of the offence, which are more particular in private dispute, it is deemed proper that in order to meet the ends of justice, the present proceeding should be quashed. In result, dispute between the parties will put to an end, peace will be resorted and relationship between them will be smooth. No useful purpose would be served to keep the present matter pending inasmuch as both the parties have buried the hatchet and as the time passes, it will be difficult to prove the guilt of the accused. The continuation of criminal proceeding would cause oppression and prejudice.

¶10In view of the aforesaid pronouncements of the Hon'ble Apex Court and in the light of the compromise arrived at between the parties, which has been duly verified by the concerned court below, the present application under Section 482 Cr.P.C. is hereby allowed. The entire criminal proceeding of the aforementioned case is hereby quashed.

¶11Let a copy of the order be transmitted to the concerned lower Court for necessary action. Order Date :- 7.12.2023 vinay High Court of Judicature at Allahabad