have to be established before the Court that there is a complete
settlement between the victim and offender. Therefore, the Court is
entitled to know the particulars of the settlement. In the Affidavit of the
second Respondent, there is only a bald statement that the dispute with
the Applicant has been settled. Unless the Court is satisfied that there is
a settlement within four corners of law between the offender and the
victim, the law led down by the Apex Court in the case of Gian Singh vs.
State of Punjab & Another will not apply. Only on the basis of a bald
statement of the first informant or victim that there is a settlement, the
power under section 482 of CrPC cannot be exercised. This Court has to
be satisfied that there is a settlement. If this Court starts accepting bald
statements about the settlement of the dispute between the victim and
the offender without satisfying itself about the genuineness of the
settlement, in a case where charge-sheet is filed, virtually a choice will
be available to the first informant to come to the High Court and seek
quashing of the offences as per his whims and convenience. What the
Apex Court has held is that offences which are not serious offences and
which are having pre-dominatingly civil flavour or offences arising out of
mercantile or matrimonial disputes can be quashed, provided there is a
settlement between the offender and the victim. Only because at a
certain stage the first informant feels that he does not want to prosecute
the case, the power under section 482 of CrPC cannot be exercised.
Even in case of offences arising out of matrimonial disputes, before
exercising power of quashing on the ground of compromise, this Court
has to satisfy itself that in fact there is such a complete compromise of
matrimonial dispute. In the present case, we cannot take bald statement
of the first informant for its face value in absence of any particulars of
settlement.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATEJURISDICTION
CRIMINAL APPLICATION NO.666 OF 2016
Bharatkumar S. Gupta
V/s
The State of Maharashtra
CORAM : A.S. OKA &
A.A. SAYED, JJ.
DATED : 29 JUNE 2016
Citation: 2017 ALLMR(CRI)1060
1 Heard the learned Counsel appearing for the Applicant and the
learned Counsel appearing for the second Respondent. This Application
was argued yesterday. To enable the learned Counsel appearing for the
Applicant to make further submissions, the Application was kept back till
the afternoon session yesterday. On the request made by the learned
Counsel appearing for the parties, we again granted time till today. We
have heard further submissions.
2 The prayer in this Application is for quashing the criminal case on
the basis of the First Information Report registered at the instance of the
second Respondent for the offence punishable under section 377 and
other sections of the Indian Penal Code. It is not in dispute that on
completion of the investigation, charge-sheet has been filed by the police
for various offences including the offence punishable under section 377
of the Indian Penal Code. It is also not in dispute that the present
Applicant filed Criminal Writ Petition No.3858 of 2013 in this Court for
quashing the proceedings of the impugned First Information Report and
on 17 December 2013, the Petition was withdrawn with liberty to raise all
contentions before the Competent Court at appropriate stage.
3 This is an Application filed invoking powers of this Court under
section 482 of the Code of Criminal Procedure, 1973 (for short “CrPC”).
From the averments made in the Application and from the submissions
made across the bar, the contention of the Applicant is that now there is
a settlement between the Applicant and the first informant which is
reflected from the Affidavit dated 14 June 2016 filed by the second
Respondent. The learned Counsel appearing for the Applicant relies
upon a decision of a learned Single Judge of Uttarakhand High Court in
the case of Vijay Gupta and others vs. State of Uttarakhand and
others1
. Today, the learned Counsel appearing for the Applicant tenders
across the bar a draft amendment by which he seeks to incorporate a
prayer for declaring section 377 of the Indian Penal Code as
unconstitutional being violative of Article 20 of the Constitution of India.
The draft amendment is taken on record and marked “X” for
identification.
4 Today, the submission of the learned Counsel appearing for the
Applicant and the learned Counsel appearing for the second Respondent
is that if there is no real possibility of conviction, only on that ground, this
Court should exercise the power under section 482 of CrPC of quashing
the offences.
5 Firstly, we deal with the draft amendment tendered across the bar.
A Division Bench of Delhi High Court by judgment and order dated 2 July
2009 declared section 377 of the Indian Penal Code to be violative of
Articles 14, 15 and 21 of the Constitution of India. The said decision was
subject matter of challenge before the Apex Court in the case of Suresh
1 Criminal Writ Petition No.516 of 2014 decided on 13 May 2014
Kumar Koushal and another vs. NAZ Foundation and others2
. The
Apex Court by its decision proceeded to set aside the decision of the
Delhi High Court. Paragraph 56 of the said decision reads thus:
“56. While parting with the case, we would like to make it
clear that this Court has merely pronounced on the
correctness of the view taken by the Delhi High Court on the
constitutionality of Section 377 IPC and found that the said
section does not suffer from any constitutional infirmity.
Notwithstanding this verdict, the competent legislature shall
be free to consider the desirability and propriety of deleting
Section 377 IPC from the statute book or amend the same as
per the suggestion made by the Attorney General.”
(underline supplied)
6 Therefore, in so many words, the Apex Court has held that section
377 of the Indian Penal Code does not suffer from any constitutional
infirmity. So long as the said binding precedent of the Apex Court stands,
it is not open for any litigant to agitate before this Court that section 377
of the Indian Penal Code is unconstitutional because a particular
submission or a particular contention was not considered by the Apex
Court. Therefore, we cannot permit the Applicant to amend this
Application for incorporating a challenge to the constitutional validity of
section 377 of the Indian Penal Code. There is a binding decision of the
Apex Court which holds that the section does not suffer from any
constitutional infirmity.
2 AIR 2014 SC 563
7 As far as the powers of this Court under section 482 of CrPC to
quash offences in cases which are non-compoundable on the ground of
mutual settlement is concerned, the law is laid down by the Apex Court in
the case of Gian Singh vs. State of Punjab & Another3
. The Apex
Court in so many words has held that this Court in exercise of its extraordinary
jurisdiction under section 482 of CrPC can quash First
Information Report or criminal proceedings in non-compoundable cases
on the basis of settlement between the victim of the offence and the
alleged offender. The Apex Court held that the powers under section 320
of CrPC and section 482 of CrPC are distinct and separate though the
ultimate consequence may be the same. What is material is paragraph
61 of the said decision which reads thus:
“61. The position that emerges from the above discussion
can be summarised thus: 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. 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
3 (2012) 10 SCC 203
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 a
serious impact on society. Similarly, any compromise
between the victim and offender in relation to the offences
under special statutes like Prevention of Corruption Act or
the offences committed by public servants while working in
that capacity etc; cannot provide for any basis for quashing
criminal proceedings involving such offences. But the
criminal cases having overwhelmingly and predominatingly
civil flavour stand on different footing for the purposes of
quashing, particularly the offences arising from commercial,
financial, mercantile, civil, partnership or such like
transactions or the offences arising out of matrimony relating
to dowry, etc. or the family disputes where the wrong is
basically private or personal in nature and the parties have
resolved their entire dispute. In this category of cases, High
Court may quash the criminal proceedings if in its view,
because of the compromise between the offender and victim,
the possibility of conviction is remote and bleak and
continuation of the criminal case would put accused to great
oppression and prejudice and extreme injustice would be
caused to him by not quashing the criminal case despite full
and complete settlement and compromise with the victim. In
other words, the High Court must consider whether it would
be unfair or contrary to the interest of justice to continue with
the criminal proceeding or continuation of the criminal
proceeding would tantamount to abuse of process of law
despite settlement and compromise between the victim and
wrongdoer and whether to secure the ends of justice, it is
appropriate that the criminal case is put to an end and if the
answer to the above question(s) is in the affirmative, the High
Court shall be well within its jurisdiction to quash the criminal
proceeding.”
(underline supplied)
8 The Apex Court has held that in case of the first category of
offences, the power to quash the offences under section 482 of CrPC
should not be exercised even on the basis of a settlement. In the second
category of cases, the Apex Court held that the power can be exercised
after the Court is satisfied on following aspects:
i) Because of the compromise between the offender and the victim,
the possibility of conviction is remote and bleak; and
ii) Continuation of the criminal case would put the accused to great
oppression as well as prejudice and extreme injustice would be
caused to him by not quashing the criminal case despite full and
complete settlement and compromise with the victim.
9 Therefore, firstly, there has to be a compromise between the
offender and the victim. The High Court will have to satisfy itself that
there is such a compromise. The nature of the compromise and
particulars thereof should be reflected on record. Mere statement that
there is a compromise cannot be accepted by the Court. Only after the
Court is satisfied that there is such a compromise in a case covered by
the second category specified in paragraph 61, the Court will have to
consider the other aspects namely, whether possibility of conviction is
remote and bleak and whether continuation of criminal case would put
the accused to great oppression. In a case where there is no settlement
or where the settlement is in a case of heinous or serious crime, only on
the ground that the first informant and witnesses are not willing to
support the prosecution, and therefore, the possibility of conviction is
remote and bleak, the power under section 482 of CrPC cannot be
exercised. The power under section 482 of CrPC can be used very
sparingly and in rare cases. If High Court quashes a case only on the
ground that there is no possibility of conviction or the victim may not
support prosecution, invoking power of this Court on this ground will be
itself abuse of process of law.
10 Firstly, it is not possible for us to accept that the present case will
fall in the second category. So long as the legislature does not step in, it
is not possible to accept the contention that the offence governed by
section 377 of the Indian Penal Code is not a serious offence
and that it will not have any impact on the society. We must also note
here that an offence under section 377 of the Indian Penal Code is
punishable with imprisonment for life or with imprisonment of either
description for a term which may extend to 10 years. Therefore, even in
case of a genuine settlement, it will not be open for this Court to exercise
the power under section 482 of CrPC in case of an offence punishable
under section 377 of the Indian Penal Code only on the ground of
settlement. In a given case, it can be done on merits.
11 Even assuming that the case will fall in the second category, it will
have to be established before the Court that there is a complete
settlement between the victim and offender. Therefore, the Court is
entitled to know the particulars of the settlement. In the Affidavit of the
second Respondent, there is only a bald statement that the dispute with
the Applicant has been settled. Unless the Court is satisfied that there is
a settlement within four corners of law between the offender and the
victim, the law led down by the Apex Court in the case of Gian Singh vs.
State of Punjab & Another will not apply. Only on the basis of a bald
statement of the first informant or victim that there is a settlement, the
power under section 482 of CrPC cannot be exercised. This Court has to
be satisfied that there is a settlement. If this Court starts accepting bald
statements about the settlement of the dispute between the victim and
the offender without satisfying itself about the genuineness of the
settlement, in a case where charge-sheet is filed, virtually a choice will
be available to the first informant to come to the High Court and seek
quashing of the offences as per his whims and convenience. What the
Apex Court has held is that offences which are not serious offences and
which are having pre-dominatingly civil flavour or offences arising out of
mercantile or matrimonial disputes can be quashed, provided there is a
settlement between the offender and the victim. Only because at a
certain stage the first informant feels that he does not want to prosecute
the case, the power under section 482 of CrPC cannot be exercised.
Even in case of offences arising out of matrimonial disputes, before
exercising power of quashing on the ground of compromise, this Court
has to satisfy itself that in fact there is such a complete compromise of
matrimonial dispute. In the present case, we cannot take bald statement
of the first informant for its face value in absence of any particulars of
settlement.
12 Reliance placed by the learned Counsel appearing for the
Applicant on the decision of the Uttarakhand High Court will not help him
for more than one reason. Firstly, the dispute was between the husband
and wife wherein offence was registered at the instance of wife alleging
commission of offences punishable under sections 498-A and 377 of the
Indian Penal Code. This was a case where there was a complete
settlement of the matrimonial dispute and that is why the learned Judge
of the Uttarakhand High Court followed the law laid down in the case of
Gian Singh vs. State of Punjab & Another. We must note here that
even the subsequent decision of the Apex Court in the case of Narinder
Singh & Ors. vs. State of Punjab & Anr.4
does not make a departure
from the law laid down in the case of Gian Singh vs. State of Punjab
and Another.
13 It is sought to be pointed out that the larger Bench of the Apex
Court may reconsider its view in the case of Suresh Kumar Koushal
and another vs. NAZ Foundation and others. In case of that
eventuality of the Apex Court holding section 377 of the Indian Penal
Code as unconstitutional, obviously the prosecution will not survive.
14 Lastly, after making the submissions, the learned Counsel
appearing for the Applicant made an attempt to seek leave to withdraw
the Application. We must note here that we have heard the submissions
in some detail and at this stage, we cannot permit the Applicant to
withdraw the Application.
15 Accordingly, there is no merit in the Application and the same is
rejected. We, however, make it clear that no adjudication is made on the
merits of the controversy and observations made by this Court regarding
the nature of offence are only for the limited purposes of considering the
4 (2014) 6 SCC 466
prayer for quashing on the basis of alleged settlement. None of these
observations shall be construed as any observation which will influence
the trial Court during the trial.
(A.A. SAYED, J.) (A.S. OKA, J.)
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