another (2012)10-SCC-303, the Apex Court has observed that the power of
quashing should be exercised very sparingly. Paragraph 58 of
the said decision reads as follows :
"58. 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 opinion, continuation of criminal
proceedings will be an exercise in futility and justice
in the case demands that the dispute between the
parties is put to an end and peace is restored;
securing the ends of justice being the ultimate guiding
factor. No doubt, crimes are acts which have harmful
effect on the public and consist in wrongdoing that
seriously endangers and threatens the wellbeing of
the society and it is not safe to leave the crimedoer
only because he and the victim have settled the
dispute amicably or that the victim has been paid
compensation, yet certain crimes have been made
compoundable in law, with or without the permission
of the Court. In respect of serious offences like
murder, rape, dacoity, etc. or other offences of mental
depravity under IPC or offences of moral turpitude
under special statutes, like the Prevention of
Corruption Act or the offences committed by public
servants while working in that capacity, the
settlement between the offender and the victim can
have no legal sanction at all. However, certain
offences which overwhelmingly and predominantly
bear civil flavour having arisen out of civil,
mercantile, commercial, financial, partnership or
such like transactions or the offences arising out of
matrimony, particularly relating to dowry, etc. or the
family dispute, where the wrong is basically to the
victim and the offender and the victim have settled all
disputes between them amicably, irrespective of the
fact that such offences have not bean made
compoundable, the High Court may within the
framework of its inherent power, quash the criminal
proceeding or criminal complaint or FIR if it is
satisfied that on th face of such settlement, there is
hardly any likelihood of the offender being convicted
and by not quashing the criminal proceedings, justice
shall be casualty and ends of justice shall be defeated.
The above list is illustrative and not exhaustive. Each
case will depend on its own facts and no hardandfast
category can be prescribed."
9. In the aforesaid paragraph, the Apex Court has observed
that in respect of serious offences like murder, rape, dacoity etc
or other offences of mental depravity under Indian Penal Code
or offences of moral turpitude under special statutes like
Prevention of Corruption Act, the settlement between the
offender and the victim can have no legal sanction at all.
Taking into consideration the law laid down by the Apex Court
as above and the factual aspects of the present case, we are not
impressed with the submissions made by learned counsel for the
Petitioner and the third Respondent. It is not possible at this
stage to give finding that offence under Section 376 of IPC is
not made out in the FIR. The factual aspects of the FIR fortified
by the conduct of the accused and subsequent events, are sufficient to decline the prayers made in this petition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1721 OF 2016
Mohammad Faizan Amir Khan Vs The State of Maharashtra.
CORAM : NARESH H. PATIL AND
PRAKASH D. NAIK, JJ.
Dated : 05 July 2016
2. The Petitioner has invoked the writ jurisdiction of this
Court under Article 226 of the Constitution of India and seeks to
challenge the first information report (`FIR') registered with
Shivaji Nagar Police Station, Mumbai vide CR No.58 of 2016.
3. The impugned FIR was registered on 2 February 2016 at
the instance of the third Respondent for offences punishable
under Sections 376, 420 of Indian Penal Code against the
Petitioner. The quashing of the said FIR is being sought on the
ground that the parties have amicably settled the dispute.
4. Brief facts as alleged in the FIR are as follows :
(i) In the month of May2011, the complainant had
visited district Sultanpur in Uttar Pradesh for attending the
marriage of her friend. At that time, she got acquainted with
the accused who is distantly related to her. Thereafter both of
them were in touch with each other by way of telephonic
conversations and subsequently fell in love with each other;
(ii) On 15 May 2014, the accused had come to Mumbai
in search of employment. He was employed with a company as
a medical representative. He requested the complainant to stay
with him. The complainant informed the accused that they can
stay together after solemnisation of their marriage. However,
the accused kept on giving evasive answers on question of
marriage;
(iii) The complainant and the accused thereafter started
residing together in a rented premises. The accused demanded
physical relationship with the complainant which was refused
by her on the ground that they are yet to get married. On 27
May 2014, the accused promised the complainant that he will
marry her and induced her to have physical relationship.
Thereafter the accused repeatedly had physical relationship
with the complainant against her wishes;
(iv) In August2015, the complainant was pregnant and
subsequently she aborted. In December2015, she was again
pregnant. At that time, the accused took her to a private
hospital and both of them represented to the doctors that they
are married to each other having one child and undergone the
abortion;
(v) On 30 December 2015, the younger brother of the
accused came to Mumbai from Uttar Pradesh. Hence, the
complainant was asked to stay with her mother. On 10 January
2016, the accused intimated the complainant that his brother is
leaving for Uttar Pradesh and she should join him at the
aforesaid premises. He also promised that he will marry the
complainant and induced her to have sexual intercourse;
(vi) On 12 January 2016, when the complainant/third
Respondent visited the rental premises referred to hereinabove,
it was noticed that the room was locked and the key was being
handed over to the neighbour. The complainant was informed
by the neighbours that on 11 January 2016, the accused and his
brother had left for Uttar Pradesh. The complainant tried to call
the accused on his phone but the same was switched off.
Subsequently when the complainant could contact the accused
on the phone, he informed her that he do not want to stay in
Mumbai and that he is not interested in getting married with
the complainant. Thereafter the complainant repeatedly tried
to contact the accused on his mobile phone but the same was
found switched off. In view of the above, the third Respondent
lodged the impugned FIR with the aforesaid Police Station on 2
February 2016.
5. Learned counsel for the Petitioner and the third
Respondent submitted that the parties have resolved their
differences and the third Respondent has consented for
quashing the FIR under challenge. It is further submitted that
the parties have solemnised their marriage on 29 April 2016.
The marriage certificate has been annexed to the petition. The
parties have also executed a declaration regarding
solemnisation of their marriage. The third Respondent has
submitted an affidavit dated 30 April 2016 before this Court. In
the said affidavit, it is stated that the third Respondent had
registered the impugned FIR against the Petitioner. However,
with the indulgence of the well wishers and elderly persons, a
compromise is arrived at between the Petitioner and the
deponent and the misunderstanding arrived between them is
resolved. It is also stated that the parties have married to each
other and complainant has no objection for dropping the
criminal proceedings against the Petitioner. She has further
stated that she is consenting for quashing the FIR which is
subject matter of this petition.
6. Learned APP vehemently opposed the prayers made in this
petition. It is submitted that the accused have committed a
serious offence under Section 376 of Indian Penal Code and,
therefore, this Court may not exercise the discretionary powers
of quashing the FIR. Learned Prosecutor further submitted that
the accused had induced the complainant to have physical
relationship with a false promise of marriage. From the facts it is
apparent that the accused had no intention to get married to the
complainant and, therefore, after having physical relationship
with her, he left Mumbai on 11 January 2016. He further
submitted that the accused refused to solemnise the marriage
and avoided the complainant. It is further submitted that the
complainant had repeatedly tried to contact the accused with a
request for marriage, however, the accused refused to fulfill the
promise made by him. Hence, the complainant lodged the FIR
on 2 February 2016. It is further submitted that the investigation
had commenced after the registration of FIR, but the accused
was not available. The Police machinery made several attempts
to apprehend him. The investigating authority was required to
issue a look out notice against the accused since he was not
available for investigation and was absconding. He further
submitted that after realising that the FIR has been registered
against him, the accused had purportedly solemnised the
marriage with the complainant on 29 April 2016. Learned
Prosecutor further submitted that such type of offences are not of
private nature, but they are against the society at large. Hence,
although the parties may try to resolve the dispute on the ground
of settlement, such FIR should not be quashed.
7. We have gone through the contents of FIR. It is gathered
that the accused had no intention to marry the complainant.
The accused repeatedly had physical relationship with the
complainant with false assurances that he will marry her. It is
necessary to note that the accused had visited the house of the
complainant on 10 January 2016 and on account of false
promise of marriage, had sexual intercourse with the
complainant. He intimated her that his brother is leaving for
Uttar Pradesh on 12 January 2016 and she should join him in
the said premises. However, it was noticed that the accused left
for Uttar Pradesh on 11 January 2016 without informing the
complainant. His phone was found switched off. Although the
complainant could establish her contact on mobile phone with
the accused, he refused to fulfill his promise. We have noticed
from the record produced by learned Prosecutor that the
accused was at large and several attempts were made to trace
him. The conduct of the accused is required to be deprecated.
It can be noted that after realising that FIR has been registered
and the investigating machinery is looking out for him, he had
come to Mumbai and purportedly solemnised the marriage on
29 April 2016. It is pertinent to note that the declaration that
both the parties have married to each other was executed on 29
April 2016. The present petition was filed on 30 April 2016 and
the affidavit tendered by the complainant giving consent for
quashing the impugned FIR was affirmed on 30 April 2016. The
approach of the accused is apparently under clouds of suspicion.
In view of the circumstances, although the Petitioner and the
third Respondent have solemnised the marriage as stated by
them, we are not inclined to quash the FIR under challenge.
8. In the case of Gian Singh Vs. State of Punjab and
another1
, the Apex Court has observed that the power of
1 (2012)10-SCC-303
quashing should be exercised very sparingly. Paragraph 58 of
the said decision reads as follows :
"58. 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 opinion, continuation of criminal
proceedings will be an exercise in futility and justice
in the case demands that the dispute between the
parties is put to an end and peace is restored;
securing the ends of justice being the ultimate guiding
factor. No doubt, crimes are acts which have harmful
effect on the public and consist in wrongdoing that
seriously endangers and threatens the wellbeing of
the society and it is not safe to leave the crimedoer
only because he and the victim have settled the
dispute amicably or that the victim has been paid
compensation, yet certain crimes have been made
compoundable in law, with or without the permission
of the Court. In respect of serious offences like
murder, rape, dacoity, etc. or other offences of mental
depravity under IPC or offences of moral turpitude
under special statutes, like the Prevention of
Corruption Act or the offences committed by public
servants while working in that capacity, the
settlement between the offender and the victim can
have no legal sanction at all. However, certain
offences which overwhelmingly and predominantly
bear civil flavour having arisen out of civil,
mercantile, commercial, financial, partnership or
such like transactions or the offences arising out of
matrimony, particularly relating to dowry, etc. or the
family dispute, where the wrong is basically to the
victim and the offender and the victim have settled all
disputes between them amicably, irrespective of the
fact that such offences have not bean made
compoundable, the High Court may within the
framework of its inherent power, quash the criminal
proceeding or criminal complaint or FIR if it is
satisfied that on th face of such settlement, there is
hardly any likelihood of the offender being convicted
and by not quashing the criminal proceedings, justice
shall be casualty and ends of justice shall be defeated.
The above list is illustrative and not exhaustive. Each
case will depend on its own facts and no hardandfast
category can be prescribed."
9. In the aforesaid paragraph, the Apex Court has observed
that in respect of serious offences like murder, rape, dacoity etc
or other offences of mental depravity under Indian Penal Code
or offences of moral turpitude under special statutes like
Prevention of Corruption Act, the settlement between the
offender and the victim can have no legal sanction at all.
Taking into consideration the law laid down by the Apex Court
as above and the factual aspects of the present case, we are not
impressed with the submissions made by learned counsel for the
Petitioner and the third Respondent. It is not possible at this
stage to give finding that offence under Section 376 of IPC is
not made out in the FIR. The factual aspects of the FIR fortified
by the conduct of the accused and subsequent events, are
sufficient to decline the prayers made in this petition. The
observations made herein are only for the purpose of deciding
the present petition.
10. In view of the above, we pass following order :
(a) Rule is discharged;
(b) The petition is dismissed with no order as to costs.
(PRAKASH D. NAIK, J.) (NARESH H. PATIL, J.)
No comments:
Post a Comment