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Rare and serious offences such as assassination, kidnapping, dacoity, Rape etc. cannot be properly disregarded even if the case has been resolved between the victim or relatives of the victim and the perpetrator. These crimes are not private and have significant social implications. This was held in ABC vs The State of Maharashtra and others [CRIMINAL WRIT PETITION NO. 1399 OF 2021] in the High Court of Bombay by Honourable Justice S. S. SHINDE & MANISH PITALE.

The facts, in this case, are that the petitioner has deceived the victim from the beginning by making a false marriage commitment and not meeting the promise. Secondly, the petitioner committed a serious offence under Section 313 of the IPC apart from the violation under Section 376 of the IPC, in which they had compelled the victim on two occasions to end her pregnancy. The charges of the FIR reveal not only the offence punishable in accordance with Article 376 of the IPC.

Learned counsel for the petitioner and respondent submits that the parties have amicably settled the dispute and therefore, the FIR registered under sections 376, 313 and 406 of the Indian Penal Code may be quashed. Respondent has filed an affidavit in which she stated that the settlement is a voluntary act and, thus, the disputed FIR can be abrogated.

Learned APP submits that there are serious allegations made against the petitioner in the FIR. The petitioner has not only committed an offence punishable under Section 376 but even under Section 313 of the IPC. It is submitted that outcome of the impugned FIR has a great impact on society. Therefore, the prayer for quashing FIR may not be entertained.

The court relied on the Hon’ble Supreme Court in the case of Gian Singh Vs. State of Punjab stated that “the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code.” The court also remarked that in the case of Anurag Soni Vs. The State of Chattisgarh stated that “if an accused from the very beginning has given a promise of marriage without any intention to fulfil that promise and in lieu of such promise that the accused will marry her, she gave her consent for sexual intercourse with the accused, then such consent would not amount to valid consent.”

While rejecting the petition court opined that “the offences are very serious and heinous in nature. Therefore, the FIR cannot be quashed on the basis of amicable settlement or on merits. Hence, the writ petition stands rejected.”

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The purpose of S.362 Cr.P.C is that once a Court delivers the judgment that Court becomes functus officio and thereafter it cannot reconsider or modify the judgment. Application under S.482 cannot be used to short-circuit other proceedings which are subsisting between the parties. This was held in SOMBIR DAGAR & ORS v. THE STATE GOVT OF NCT OF DELHI AND SOMBIR DAGAR v. THE STATE GOVT OF NCT OF DELHI [CRL.M.C. 314/2015 & CRL.M.C. 315/2015] in the High Court of New Delhi by single judge bench consisting of JUSTICE SUBRAMONIUM PRASAD.

Facts are that due to matrimonial disputes between the petitioner and the respondent F.I.Rs were registered for offenses under Sections 498A, 406, 34 IPC. Parties entered compromise and Court by an order quashed the two FIRs with recourse to law. Applications have been filed for recalling the prior order on the ground the compromise had been obtained by the petitioners by giving false assurances to the Court.

The counsel for the applicant stated the petitioner has beaten, humiliated and thrown out the petitioner and argued that the sole purpose of compromise was to get the FIRs quashed by fraud. He placed reliance on Sanjeev Kapoor v. Chandana Kapoor to support that the case fell under exceptions to embargo u/s 362 Cr.P.C.

The court referred to the Apex court judgment in the case of  Nazma v. Javed, where in it was held that, “The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court.”

The court relied on the judgement of Simrikhia v. Dolley Mukherjee, where the Apex Court had discussed the scope of Sections 482, wherein the following observations were made, “The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal [(1981) 1 SCC 500 : 1981 SCC (Cri) 188], that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power.”

Considering the facts of the case and the earlier precedents the court held that, It cannot be said that the petitioner has misled the Court or suppressed facts when both the parties came before the High Court and pleaded that they have settled all their disputes and the proceedings against the petitioner be quashed. Thus the application is dismissed as it is barred under S.362 Cr.P.C.

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Judgment of acquittal of co-accused would not be admissible within meaning of Sections 40 to 44 of the Evidence Act. This was held in UMMER FAROOQ V. STATE OF KARNATAKA[CRIMINAL PETITION NO.6857/2020] in the High Court of Karnataka by single judge bench consisting of JUSTICE H.P. SANDESH.

Facts are that the petitioner was arraigned as co-accused in a complaint, the police registered a case for the offenses punishable under Sections 143, 147, 341, 323, 504, 354, 307 r/w S.149 of IPC and filed charge sheet against 10 accused. The case against petitioner was split up and other accused were tried separately and acquitted. Petition is thus filed before this Court for quashing of proceedings.

The counsel for petitioner contended that learned Magistrate had not framed  specific or separate charges against the petitioner. He relied upon Judgment of the Apex Court in the case of Vishwas Bhandari v. State of Punjab and Anr and other cases to examine the scope of S.482 and futility of trying co accused.

The government pleader contended that the benefit of Section 482 of Cr.P.C. cannot be invoked as accused had absconded and relied upon the Judgment in the case of Umesh v. State of Kerala in favor of refusing to quash the proceedings on the ground that co-accused was acquitted.

The court referred to the Apex court judgment in the case of Rajan Rai v. State of Bihar, wherein the court had held that the judgment of acquittal of co-accused is not admissible within the meaning of Section 40 to 44 of the Evidence Act. The Apex court had also highlighted the irrelevancy of the judgement of co accused tried separately.

The court relied on the case of Umesh v. State of Kerala, where the Apex Court had discussed the scope of Sections 482, 227 and 239 of Cr.P.C. held  that Trial Court under Section 239 is the proper forum to file an application and the Apex Court judgement in the case titled Yanob Sheikh alias Gagu v. State of West Bengal wherein the following observations were made, “The cumulative effect of the above discussion is that the acquittal of a co-accused per se is not sufficient to result in acquittal of the other accused. The Court has to screen the entire evidence and does not extend the threat of falsity to universal acquittal. The court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case.”

Considering the facts of the case and the earlier precedents the court dismissed the petition. Court addressed that the petitioner had absconded and had waited for the trial of co-accused to be over and thus directed the petitioner to appear before the Trial Court and to file necessary application for discharge before the Trial Court in accordance with law.

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Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. The seriousness of the offence of rape and its impact on the victim will be considered before granting a bail application. This auspicious judgment was passed by the High Court of Delhi in the matter of KASHISH BATRA V. THE STATE [BAIL APPLICATION NO. 477 OF 2021] by Honourable Chief Justice Subramonium Prasad.

The petitioner had filed an instant petition under Section 439 of Criminal Procedure Code for seeking regular bail in FIR No.442 of 2020 under Sections 370, 370(A), 372, 374, 376, and 342 of Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act 2012.

The prosecutrix was studying in 8th standard then and was on numerous occasions caught by her family talking and chatting to a boy named Nadeem. After her brother slapped her for the same on 11.07.2020 she angrily left her house and got into a battery rickshaw without any phone or money.

There she met Imrana who told her that she works for an NGO and took her to KNF Hotel, Gurgaon where Imrana and the petitioner drugged her and after she was semiconscious, the petitioner raped her. Later, Imrana sent her with Rashid who raped her. Then the prosecutrix ran away to Greater Noida where Mukesh gave her his phone and she spoke to Nadeem, who asked her to come to Meerut and later refused to keep her. Then Mukesh brought the prosecutrix back to Greater Noida where she spent 14 days with Mukesh and then her family was informed and later an FIR was filed under Sections 370, 370(A), 372, 374, 376, and 342 IPC and Section 6 of the POCSO Act was registered. The victim was given counseling by the Child Welfare Committee and in the report, new facts of sexual assault and Human Trafficking came to light.

The petitioner’s bail application was dismissed by Additional Session Judge hence he approached the HC under Section 439 CrPC for a grant of regular bail. Since he contended that neither the petitioner could tamper with any evidence nor is he being called for any kind of investigation and hence continued custody will become punitive in nature which is contrary to the established law. The petitioner relied on Fakhrey Alam v. The State of Uttar Pradesh to contend that there can be only one charge-sheet and subsequent charge-sheets cannot enlarge the time and therefore the accused is entitled to default bail under Section 167 CrPC. However, the court refused this claim, “In the present case the charge-sheet was filed on 21.01.2021. The investigation was completed and the ingredients of Section 167(1)(a), 167(2) read with Section 173(1)(a) CrPC has been met with and therefore the petitioner is not entitled to default bail.”

The Court observed that the “The seriousness of the offence of rape and its impact on the victim has as stated by the Supreme Court in Lillu v. State of Haryana (2013) 14 SCC 643 will be considered and the delay in filing the FIR cannot be said to be fatal to this case at this juncture while considering the application for bail.”

The Court stated that “The prosecutrix is only 16 years of age. She was given counseling. The report given by the Child Welfare Committee reveals that the accused were trying to put the prosecutrix into flesh trade and that she managed to escape. The call detail records of the accused Imrana and the petitioner corroborate the locations. As correctly observed by the Additional Session Judge, there is no reason forthcoming as to why the prosecutrix would falsely implicate the petitioner. There are sufficient materials in the charge sheet against the petitioner. The petitioner is accused of committing a heinous offense of rape on a child. The possibility of the petitioner putting pressure on the prosecutrix at this stage, if released on bail, cannot be ruled out.”

Then, the Court in light of this decision refused to grant bail to the petitioner and dismissed this petition, and directed the Trial Court to hear the case as expeditiously as possible and preferably within one year.

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It was undoubtedly held that the authority of a court as such in relation to lay a complaint should be considered exhaustive by section 476 and that a complaint other than that section should not be entertained. This was held in Mst. Gulshan Begum &Ors. Vs Hafiz Qazafi Khan [CRR No. 27/2016] in the High Court of Jammu And Kashmir at Srinagar by a single bench consisting of JUSTICE RAJNESH OSWAL.

It is alleged that the respondent with ulterior motive to grab the property of the petitioners filed proceedings before the court for registration, separation, possession and perpetual injunction. It is also claimed that the learned Munsiff granted a status quo order on the appropriate property without granting a fair hearing to the petitioners on the basis of an order, as without further inquiry the forged will was taken into account.

The Counsel for the side of Petitioners, argued vigorously that the court was obliged to conduct the inquiry under Section 476 Cr.P.C, since the respondent created the forged Will before the Court, and for that matter was forced to proceed under Section 195 Cr.P.C. The only contention that emerged in this petition from the side of Petitioners was the motion for a preliminary examination of the contention posed by the claimant when the petitioner submitted an application for the appearance of the forged will.

The competent counsel to the respondent Per contra, Mr Showkat Ali Khan, has vehemently argued that the impugned order was passed well into statute and the enquiry, as provided for in Section 476 Cr.P.C, may not have taken place in this case as the petitioners did not have the will forged after the same was filed with the Court.

The court relied on the supreme court in the case of “Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & anr. It was held that Section 195(1)(b)(ii) Cr.P.C would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e., during the time when the document was in custodia legis.”

The court opined that “Section 476Cr.P.C provides the procedure to be followed in case of commission of offences as mentioned in Section 195 Cr.P.C. Therefore, the application filed by the petitioners before the trial court was misconceived as it was not the case of the petitioners that the document was forged when the same was custodia legis.” Hence, the decision of the trial court is upheld and the appeal submitted by the misunderstanding of the petitioners is thus rejected.

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