FAROOQUE @ MUHAMMED v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 4TH DAY OF DECEMBER 2014/13TH AGRAHAYANA, 1936** ## **Crl.MC.No. 4210 of 2014 ()** **--------------------------AGAINST THE ORDER/JUDGMENT IN SC 930/2012 of D.C. & SESSIONS COURT,THALASSERY CRIME NO. 568/2012 OF PERINGOME POLICE STATION , KANNUR** **PETITIONER/ACCUSED:** **-----------------------------------** **FAROOQUE @ MUHAMMED AGED 34 YEARS S/O. SAINABA, VELLORA AMSOM, KAKKARA P.O. KANNUR DISTRICT.** **BY ADVS.SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU** ## **RESPONDENTS/COMPLAINANT/STATE:** **--------------------------------------------------------** ## **1. LISHA A.C, AGED 20 YEARS** - **D/O. NALINI, ALAMALAYIL HOUSE, CHEMBULLANHI KAKKARA P.O., KANNUR DISTRICT, PIN 670002.** ## **2. STATE OF KERALA** - **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** **R1 BY ADV. SMT.P.A.ANEESHA R2 BY D.G. OF PROSECUTIONS, SRI.ASIF ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-11-2014, THE COURT ON 4.12.14 PASSED THE FOLLOWING:** ## **Crl.MC.No. 4210 of 2014 ()** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE I- COPY OF THE FIR & POLICE CHARGE IN CRIME NO. 568/2012 OF PERINGOME POLICE STATION.** **ANNEXURE II- THE TRUE COPY OF THE AFFIDAVIT OF 1ST RESPONDENT.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** sdk+ ///True copy/// P.S. to Judge ## ALEXANDER THOMAS, J. ================== ## Crl.M.C.No. 4210 of 2014 ================== Dated this the 4[th] day of December, 2014 O R D E R This Criminal Miscellaneous Case seeking invocation of the inherent powers of this Court conferred as per Sec. 482 of the Cr.P.C. has been instituted with the prayer to quash the impugned Annexure-I final report/charge sheet submitted in Crime No. 568/2012 of Peringome Police Station, Kannur district, wherein it is alleged that the accused (the petitioner herein) has committed the offence punishable under Sec. 376 IPC and Sec. 32(v) of the SC, ST Prevention of Atrocities Act, 1989. After the filing of the first information report in the instant case, Crime No.568/2012 was registered by the Peringome Police Station and the Police, after investigation, submitted impugned Annexure-I final report/charge sheet in respect of the above mentioned crime. The gist of the prosecution case is that the accused, who does not belong to SC/ST community, had committed rape on the defacto complainant, who belongs to the Vettuva community, included in the Scheduled Tribe Crl.M.C.4210/14 - : 2 :- on various occasions since September, 2011, had taken her photographs and threatened her that the same will be circulated through mobile phone and internet and thereby the accused committed the offence. It is pointed out that the petitioner and the defacto complainant (1[st] respondent herein) were family friends. There were some disputes in connection with the photographs of the defacto complainant in the mobile phone of the petitioner and that in pursuance of such disputes, the 1[st] respondent (defacto complainant) had made the impugned allegations against the petitioner herein, which led to the registration of the instant crime. It is submitted that now the entire disputes between them and their family members have been amicably settled. The 1[st] respondent has sworn to an affidavit dated 22.7.2014, produced as Annexure-II in this Crl.M.C., stating that her family and the family of the petitioner were friends for a long time and that some disputes arose on account of her photographs being retained in the mobile phone of the petitioner and that differences of opinion therefore arose between the families of the parties and that due to misunderstanding, she has made the allegations etc. That now the families of the petitioner and the defacto complainant have Crl.M.C.4210/14 - : 3 :- discussed and have rached an amicable settlement and that now the 1[st] respondent (defacto complainant) has no complaint or grievance against the petitioner and that she is not interested to proceed further with the impugned criminal proceedings and that she has no objection in the quashment of the impugned criminal proceedings, etc. In the light of these facts and circumstances that the petitioner herein has filed the above Crl.M.C. with the above said prayer. 2. Heard Sri.Zubair Pulikool, learned counsel appearing for the petitioner, the learned Public Prosecutor appearing for the 2[nd] respondent-State of Kerala and Smt.P.A.Aneesha, learned counsel appearing for the 1[st] respondent (defacto complainant). 3. The petitioner and the 1[st] respondent have reiterated their respective submissions as stated above through their respective advocates appearing for them. The learned State Prosecutor has appeared in this case for 2[nd] respondent and has raised serious objection regarding the grant of prayer as sought for. 4. It has been now well settled in the case Gian Singh v. State of Punjab and Anr. reported in (2013) 1 SCC (Cri.) 160 = (2012) 10 SCC 303 that the inherent power vested with this Court Crl.M.C.4210/14 - : 4 :- under Sec.482 of the Cr.P.C. is of wide plenitude with no statutory limitation, but it has to be exercised in accordance with the guideline engrafted in such power viz., (i) to secure the ends of justice, or (ii) to prevent the abuse of the process of any court, etc. That where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its option, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties put to an end and peace is restored and placing the ends of justice as the ultimate guiding factor. It has been held therein in paras 55 and 56 that in the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent the continuation of unnecessary judicial proceedings. That whenever anything is authorised and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless somethingelse not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment and that ex debito justitiae is inbuilt in Crl.M.C.4210/14 - : 5 :- such exercise of power, the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Sec. 482 of the Cr.P.C. is of wide amplitude but requires exercise with great caution and circumspection. It needs no emphasis that exercise of the inherent power by the High Court would entirely depend on the facts and circumstances of each case and it is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Sec. 482 and no precise and inflexible guidelines can also be provided. However, it has been very explicitly laid down by the Apex Court in para 61 of the Gian Singh's case supra that before exercise of such power under Sec.482 of the Cr.P.C., the High Court must have due regard to the nature and gravity of the crime. That 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 the special statutes like the Prevention of Corruption Act or the offences Crl.M.C.4210/14 - : 6 :- committed by public servants while working in that capacity, etc. cannot provide for any basis for quashing the impugned criminal proceedings involving such offences, etc. 5. The learned State Prosecutor appearing for the official respondent in this case has also relied on the decision of the Apex Court in the case Shimbhu and Anr v. State of Haryana reported in 2013 KHC 4673 = 2013 (10) SCALE 595. In that case, the appellants (accused) therein had allegedly abducted the victim at knife point, confined her in their shop for two days and raped her taking turn. Later, she got married and she has four children. The trial court convicted them and sentenced them 10 years rigorous imprisonment. During pendency of appeal, the parties (accused and the victim) compromised and the Apex Court in the aforementioned decision in Shimbhu's case cited supra held that the compromise is not a reason to reduce the sentence. The Apex Court held that a compromise entered between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded and that rape is a non-compoundable offence and it is an offence against the society and not a matter to be left for the parties to compromise and settle. Since the court cannot always be assured Crl.M.C.4210/14 - : 7 :- that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise and that accepting this proposition will put an additional burden on the victim as the accused may use all his influence to pressurise her for a compromise and that in the interest of justice and to avoid unnecessary pressure or harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise discretionary power under the proviso of Sec.376(2) of IPC, etc. The learned counsel appearing for the petitioner has argued that the above said decision in Shimbhu's case cited supra is distinguishable, by contending that the said case did not involve an issue of quashment under Sec.482 of the Cr.P.C., but was a case wherein the accused were convicted of the offence of Sec. 376 IPC for rape and that the compromise was highlighted at the time of the imposition of sentence as a plea for reduction thereof and that the said decision is clearly distinguishable on those facts. 6. The learned counsel for the petitioner has also relied on Crl.M.C.4210/14 - : 8 :- the decision of the Supreme Court in Yogendra Yadav & ors. v. State of Jharkhand & Anr. reported in 2014 (8) SCALE 634, wherein the Supreme Court has allowed the plea of quashment in a case involving offences under Secs. 307 (attempt to murder), 324, 323, 341, 504 read with Sec. 34 of the IPC. The learned Public Prosecutor has relied on the decision of the Apex Court in Narinder Singh v. State of Punjab reported in (2014) 6 SCC 466, para 29. In Narinder Singh's case cited supra the Apex Court was dealing with the case, wherein the crime was registered for offences under Secs. 307, 324 323 read with Sec. 34 of the IPC. The Apex Court, after dealing with various decisions on the point, has issued various guidelines in paragraph 29 thereof, which read as follows: “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 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 Crl.M.C.4210/14 - : 9 :- 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. 29.4 On the other, those criminal cases having overwhelmingly and pre-dominantly 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. 29.6 Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. 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 proving 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. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the Crl.M.C.4210/14 - : 10 :- offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” The above said decision in Narinder Singh v. State of Punjab was subsequently relied on by the Supreme Court in the case Manohar Singh v. Madhya Pradesh & Anr. reported in 2014 Crl.L.J.4326. 7. After consideration of the submissions of the petitioner's counsel, the counsel for the contesting respondent and the learned Public Prosecutor in the respondent-State, this Court is of the considered opinion that taking into account the specific guidelines Crl.M.C.4210/14 - : 11 :- engrafted by the Apex Court in para 61 of Gian Singh v. State of Punjab, reported in (2013) 1 SCC (Cri) 160 and the further detailed guidelines laid down by the Apex court in Narinder Singh's case reported in (2014) 6 SCC 466, that the present case involving quashment of impugned criminal proceedings for offences under Sec. 376 IPC, is not a fit case for exercise of discretion under the extra ordinary powers under Sec. 482 of the Cr.P.C. The power under Sec. 482 is of wide plenitude, but the same has to be exercised with great caution and circumspection. Therefore this Court is not inclined to exercise the discretion for allowing the plea of quashment of the impugned criminal proceedings for an offence under Sec. 376(1) of the IPC in the facts and circumstances of this case. It is made clear that this Court has not made any observations on the sustainability or otherwise of the case of the prosecution in the instant case. In this view of the matter, this Court is not inclined to allow the prayer for quashment. Faced with this situation, the learned counsel for the petitioner sought liberty of this Court to seek plea of discharge before the court below, at the appropriate stage. It is made clear that nothing in this order will preclude the petitioner in any manner to seek Crl.M.C.4210/14 - : 12 :- appropriate plea of discharge before the court below, if the stage for seeking such plea has not yet been crossed. With these observations, the Crl.M.C. stands dismissed. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge