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2017 Supreme(Kar) 1653
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.N. PHANEENDRA, J.
Jameel Jabbar @ Mirza, S/o Jabbar Mirza – Appellant
Versus
State Of Karnataka - Respondent
CRL.P. No.3269 of 2017
Decided on : 12-12-2017
Advocate Appeared:
For the Appellant : SRI. MOHAMMED PASHA C., ADV
For the Respondent: SRI. SANDESH J. CHOUTA, SRI. MAQBOOL PASHA, ADV.
Headnote:INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Sections 366-A, 376 & 120-B & Section 4 of the POCSO Act, 2012 - Allegation as to kidnapping -Date of birth of victim was 12.10.1996. As on the date of the alleged offence i.e., on 15.12.2012, she was aged more than 16 years 9 months. Therefore, she has crossed 16 years. Provision of Section 376 of IPC cannot be said to have been attracted. Further added to that, the provision of Section 375 of IPC, which is a definition clause, prior to the amendment, clearly indicated that if a man is said to commit rape would fall under any of the following seven descriptions. Firstly-against her will; Secondly- Without her consent; Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt; Fourthly-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believed herself to be lawfully married; Fifthly-With her consent, when, at the time of giving such consent, by reason of unsoundness of mine or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she us unable to understand the nature and consequences of that to which she gives consent; Sixthly- With or without her consent, when she is under sixteen years of age; Seventhly- When she is unable to communicate consent. Exception-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. The definition of this section, as noted section is prior to the amendment But subsequently, the age of the girl is increased to 18 years.
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 [C.A. NO. 32/2012] - Section 4 - Complaint filed has kidnap and forcible sexual intercourse on 15.12.2012, POCSO Act, was not in existence - Therefore, invocation of the said provision itself is not proper - Perhaps, the police have filed the charge sheet subsequently-Therefore, at the time of filing of the charge sheet, they might have wrongly incorporated the provisions of POCSO Act, 2012. When the allegation made in the charge sheet if it is read in consonance with section 375 of IPC and the definition clause of Section 366-A of IPC, the allegations does not constitute the offences. Even assuming that those offence are broadly attracted, there is no question of rejecting the application for compromise filed by the parties, under the above said circumstances. I am of the considered opinion that the compromise entered into between the parties required to be accepted and all the proceedings in Spl.CC No.95/2013 deserves to be quashed.
On the previous date of hearing, that was on 11.12.2017, this court has in fact recorded the compromise between the parties as stated by them before this court and dispensed their presence before the court today.
2. After hearing with regard to the legality and admissibility of the compromise and to consider the same, I have heard the arguments of the learned counsel for the petitioners and the learned Addl. SPPII for the State have carefully perused the records.
3. The brief factual matrix which are important to be noted before arriving at any conclusion in this case are: The respondent No.1 - R.T. Nagar Police have registered a case against the petitioners on the complaint lodged by the second respondent herein in Crime No.459/2012 for the offence punishable under section 363 of IPC on the allegations that the first petitioner has kidnapped the 3rd respondent, who is none other than the daughter of the second respondent. The police have investigated the matter and have filed a charge sheet for the offence punishable under section 366A, 376 and 120B of IPC and Section 4 of the POCSO Act, and the same has been registered before the Special Court in Spl.CC No.95/2013, which is still pending on the file of LIV Addl. City Civil and Sessions Judge CCH 55, at Bengaluru. The petitioner has called in question the initiation of Criminal case and continuation of the Special case for the above said offences and sought for quashing of the proceedings on the ground that the matter has been compromised between the parties, particularly between the petitioners and the respondent Nos.2 & 3.
4. In this context, before adverting to the compromise entered into between the parties, it is just and necessary to have some rulings of the Hon'ble Apex Court as to under what circumstances, the court can record the compromise between the parties, even in the cases where the offences alleged are serious in nature.
5. In this regard, it is worth to refer a decision of the Hon'ble Apex Court in the case of Gian Singh Vs. State of Punjab and Another reported in [(2012) 10 SCC 303], wherein, the Apex Court has held thus:
“Thus, held, heinous and serious offences of mental depravity, murder, rape, dacoity, etc., or under special statutes like Prevention of Corruption Act or offences committed by public servants while working in their capacity as public servants, cannot be quashed even though victim or victim's family and offender have settled the dispute Such offences are not private in nature and have a serious impact on society.
But criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing - Offences arising from commercial financial, mercantile, civil, partnership or like transactions or offences arising out of matrimony relating to dowry, etc. or family disputes where the wrong is basically private or personal in nature and parties have resolved their entire dispute, High Court may quash criminal proceedings - High Court, in such cases, must consider whether it would be unfair or contrary to interest of justice to continue with the criminal proceeding or continuation of criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between parties and whether to secure ends of justice, it is appropriate the criminal case is put to an end. If such question(s) are answered in the affirmative, High Court shall be well within its jurisdiction to quash the criminal proceedings.”
6. On careful perusal of the above said decision, the Hon'ble Apex Court has not categorized any particular provisions under the IPC or under any law for the time being in force. But the guidelines are that the offences arising out of matrimonial disputes relating to dowry or any family dispute, where the wrong is basically private and personal in nature and when the parties have resolved their entire dispute amongst themselves, the court can quash such proceedings.
7. In another ruling, the Hon'ble Apex Court
