CRL.M.C./430/2023 of SHAKEEL @ LALLA Vs STATE ( NCT OF DELHI) AND ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI+ CRL.M.C. 430/2023

SHAKEEL @ LALLA ..... Petitioner Through: Mr. Piyush Chawla, Advocate with petitioner in person. Versus STATE ( NCT OF DELHI) AND ORS. ..... Respondents Through: Mr. Aashneet Singh, APP for State with W/SI Parul, P.S. Shastri Park. Respondent Nos. 2 and 3 are in person.

CORAM:HON'BLE MR. JUSTICE MANOJ KUMAR OHRI O R R22.05.2024

1. By way of present petition filed under Section 482 Cr.P.C., the petitioner seeks quashing of FIR No. 56/2021 registered under Sections 363/366/376 IPC and Section 6 POCSO Act at P.S. Shastri Park, Delhi and proceedings emanating therefrom.

2. Learned counsel for the petitioner states that the FIR came to be registered owing to some misunderstanding. It is further stated that since the registration of the FIR, petitioner and respondent No.2 have married each other. He further states that during investigation, statement of respondent No. 2 was recorded under Section 164 Cr.P.C., wherein she stated that she had gone out with the petitioner on her own and physical relations were established with her consent. Respondent No.2 is presently 20 years of age.

no-objection affidavit has been filed by respondent No.2 in support of the present petition, relevant paras of the same are extracted below:

“2. That deponent states that the physical relationship

established between the deponent and the petitioner only after the marriage and not before. The deponent has attained majority and had stated in Court that she still wants to stay with the applicant as his wife.

3. That the deponent states that now she is major and she loves the petitioner herein and wants to live with the petitioner and also wants to continue her married life with the petitioner herein.

4. That the deponent states that her mother respondent no.3 herein does not like petitioner and that's why her mother implicate the petitioner in this case and her parents were also physically assaulting her and she wants to live with the petitioner only.

5. That the deponent prays to the Hon'ble court to quash the said FIR No.56/2021 under Section 363, 366, 376 I.P.C.& 6 POCSO Act of P.S. Shastri Park, Delhi against the Petitioner and the proceedings emanating therefrom as the deponent suffered lot from the said F.I.R. and also by her parents and the deponent and petitioner starts their new life with each other after the quashment of the said case.”

3. The petition is opposed by learned APP for the State, who states that respondent No.2 was minor above 17 years at the time of the incident and therefore, provision of POCSO has also been invoked. He further states that Section 376 and provision of POCSO are involved in the present matter, which are not only serious and heinous, but which also have serious impact upon the society and therefore, the same cannot be quashed solely based upon the fact that the parties have settled the disputes or that they have married each other. He further states that charges have been framed in the present case, however, prosecution evidence is yet to begin.

In support of his submission, he has referred to the Supreme Court

76decisions in Gian Singh v. State of Punjab & Anr. and State of Madhya Pradesh v. Laxmi Narayan & Ors.77

4. The power of High Court under Section 482 Cr.P.C. to quash proceedings in matters wherein non-compoundable offences are involved is well recognized. The Supreme Court in B.S. Joshi v. State of Haryana78observed that Section 320 Cr.P.C. does not limit or control the powers vested in High Court under Section 482 Cr.P.C., and the High Court is empowered to quash criminal proceedings/FIR, even if non-compoundable offences are involved. The said view has been reiterated by the Supreme Court in Nikhil Merchant v. CBI & Anr.79, Manoj Sharma v. State & Ors.8081and Shiji @ Pappu & Ors. v. Radhika & Anr. In Shiji(Supra), it was observed that:-

“xxx

17. It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording conviction against the accused and the entire exercise of trial is destined to be an exercise in futility. There is subtle distinction between compounding of an offence by the parties before the trial court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offences based on settlement arrived at between the parties in cases where the offences are non-compoundable under

76 (2012) 10 SCC 303

77 (2019) 5 SCC 688

78 (2003) 4 SCC 675

79 (2008) 9 SCC 677

80 (2008) 16 SCC 1

81 (2011) 10 SCC 705

Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are nto for that purpose controlled by Section 320 Cr.P.C.

18. Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is fit case in which the inherent powers may be invoked. xxx”

5. In Gian Singh (Supra), while dealing with the power of High Court to quash criminal proceedings under Section 482 Cr.P.C., the Supreme Court observed as under:-

“xxx

61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to 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 F.I.R may be exercised where the offender and 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 serious impact on society….

xxx”

To similar extent are the observations of the Court in Laxmi Narayan(Supra).

6. While the above-mentioned decisions put forth the view that Section 376 IPC being serious and heinous offence cannot be quashed based upon settlement arrived at between the parties, however, the same is not set in stone. In appropriate cases, considering the facts of particular case, the Supreme Court as well as this Court has exercised its power to quash the proceedings involving Section 376 IPC.

Reference, in this regard, may be made to the decision of the Supreme Court in Jatin Agarwal v. State of Telangana & Anr.82, wherein while quashing an FIR registered under Section 417, 420 and 376 IPC, it was stated:-

“xxx

5. Considering the aforesaid facts and keeping in view that the

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respondent no.2/complainant has herself made statement before us that she has married the appellant and now living happily, we exercise our powers under Article 142 of the Constitution of India and to do complete justice in the matter, we quash the FIR dated 16.08.2020 lodged by the respondent no.2 against the appellant under Sections 417, 420 and 376 IPC. xxx”

Further, in Kapil Gupta v. State (NCT of Delhi) & Anr.83, the Supreme Court, while dealing with case wherein petition for quashing an FIR registered under Section 376 was dismissed by the High Court, and after due consideration of its previous decision in Narinder Singh & Ors. v. State of Punjab & Anr.84 observed:-

“11. No doubt that the learned ASG is right in relying on various judgments of this Court which reiterate the legal position that in heinous and serious offences like murder or rape, the Court should not quash the proceedings. It will be relevant to refer to paras 29.5 to 29.7 of the judgment of this Court in Narinder Singh v. State of Punjab, which reads thus:

“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.

xxx

29.7 . While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement plays crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under

83 (2022) 15 SCC 44

84 (2014) 6 SCC 466

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 position to decide the case finally on merits…”

12. It can thus be seen that this Court has clearly held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Court has also to take into consideration as to whether the settlement between the parties is going to result into harmony between them which may improve their mutual relationship.

13. The Court has further held that it is also relevant to consider as to what is the stage of the proceedings. It has been observed that if an application is made at belated stage wherein the evidence has been led and the matter is at the stage of arguments or judgment, the Court should be slow to exercise the power to quash the proceedings. However, if such an application is made at an initial stage before commencement of trial, the said factor will weigh with the court in exercising its power. xxx”

7. Positive reference may also be made to the decision of Co-ordinate Benches of this Court in Amar Kumar & Anr. v. State (Govt. of NCT of 8586Delhi) & Anr., Prem Kumar v. State & Ors., Rihan v. State (Govt. ofNCT Delhi) & Anr.87, Anshuman v. State & Anr.88, Yojan Sharma v. State 8990& Anr., Mohit v. Govt. of NCT Delhi & Anr., wherein while noting the factum of settlement/marriage between the prosecutrix and the accused as well as the facts of the respective case, the FIR registered under Section 376 IPC (as well as other Sections mentioned therein) have been quashed.

8. What emerges from the discussion undertaken above is that while as matter of practice, serious and heinous offences ought not to be quashed by exercise of powers under Section 482 Cr.P.C., as it can have detrimental impact upon society, however, at the same time, the Court is not completely divested of the power to quash such proceedings. In appropriate cases, upon consideration of the facts including the evidence available, the chances of conviction, the timing of the settlement/marriage as well as its actual effect, the Court can exercise its power under Section 482 to quash such proceedings, in the interest of justice and to put quietus to the entire incident. However, at the sake of repetition, it is clarified that there is no blanket rule that such quashing should or should not take place. While quashing of serious and heinous offence like rape solely based upon settlement/marriage may not always be warranted, it can be done in cases where the peculiar facts warrant the same.

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9. The present case arises out of the FIR lodged by respondent No.3 wherein she stated that her daughter had gone out, however, she could not be found. After investigation, respondent No.2 was found and it was found that physical relations had been established. Further, in her statement recorded under Section 164 Cr.P.C., respondent No.2 has stated that consensual physical relations were established.

10. Admittedly, during the pendency of the proceedings under the said FIR, the petitioner and respondent No.2 have married each other.

The petition is accompanied by the no objection certificate of respondent No.2, wherein she has stated the she has no objection if the present FIR is quashed.

Petitioner, who is present in Court, has been identified by his counsel as well as the I.O. Respondent Nos.2 and 3, who are also present in Court, have been identified by the I.O. Respondent No. 2 who is major now states that she is leading happy married life with the petitioner and joins in the prayer for quashing of the FIR. Respondent No. 3 also supports the contention of her daughter i.e. respondent No.2.

11. Considering the facts of the present case including the fact that the High Court is well within its right to quash proceedings emanating from Section 376 IPC and POCSO Act, if the facts so warrant, the present petition is allowed and FIR No. 56/2021 registered under Sections 363/366/376 IPC and Section 6 of the POCSO Act at P.S. Shastri Park, Delhi and the proceedings emanating therefrom are quashed.

12. Petition is disposed of in the above terms.

MANOJ KUMAR OHRI, J

MAY 22, 2024/ga