Complaints of heinous and serious offences cannot be quashed even though the victim or the family of the victim have settled the dispute with the accused: Bombay High Court

 on 10 06 2021 on 11 06 1 23WP 4330 19 & 1476 2021.docTHE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTIONCRIMINAL WRIT PETITION NO. 4330 OF 2019Rishi Prabha Ranjitkumar PrasadAdult Indian Inhabitant residing atHarikunj Society Building No. 2 C Wingh Flat No. 705 7th Floor Chembur Mumbai....PETITIONERVersus1.The State of Maharashtra[Through of E.O.W. Unit 7].2.Krishna Mishra residing at Vaibhav CooperativeHousing Society Anand Nagar Lal Dongar Chembur Mumbai.3.Mr. Samphul DasAge 33 years Occ Worker Resident of: Village Sainchak Ranjodha Dhuraiya Banka Bihar.4.Mrs. Sunitadevi Samphul DasAge 28 years Occ Worker Resident of: Village Sainchak Ranjodha Dhuraiya Banka Bihar....RESPONDENTSALONG WITHCRIMINAL WRIT PETITION NO. 1476 OF 2021Mr. Ranjit Kumar PrasadAge 43 years Occ ServiceR at Flat No. 707 7th FloorBuilding No. 2 Hari Kunj SocietyChembur Mumbai....PETITIONERVersus1.The Senior Inspector of PoliceChembur Police Station Bhagyawant Punde on 10 06 2021 on 11 06 2 23WP 4330 19 & 1476 2021.doc(C.R. No. 2718)2.Mr. Krishna Mishra Age 43 years Occ Cleanerresiding at Vaibhav CooperativeHousing Society Anand Nagar Lal Dongar Chembur Mumbai.3.Mr. Samphul DasAge 33 years Occ Worker Resident of: Village Sainchak Ranjodha Dhuraiya Banka Bihar.4.Mrs. Sunitadevi Samphul DasAge 28 years Occ Worker Resident of: Village Sainchak Ranjodha Dhuraiya Banka Bihar.5.The State of Maharashtra...RESPONDENTS...Mr. Vishal Kanade i by Mr. Rajendra J. Rathod for Petitioner in WPNo. 4330 2019.Mr. Vishal Kanade i by. Rizwan Merchant and Associates forPetitioner in W.P. 1476 2021.Mr. Sohel Ahmed a w. Mr. Ali Bubere i by. Kookada & Associatesfor Respondent No. 3 and 4. Mr. Aamir Koradia for Respondent No. 2 Original Complainant.Mr. Deepak Thakre PP a w. Mrs. S.D. Shinde APP for Respondent State. ... CORAM : S. S. SHINDE & N. R. BORKAR JJ. RESERVED ON 27th MAY 2021. PRONOUNCED ON 10th JUNE 2021.JUDGMENTAct 2015 be quashed and set aside. 3.Respondent No. 2works as a cleaner inthe housing society in which the petitioners are residing. The firstinformant lodged the FIR bearing C.R. No. 2718 on 6thSeptember 2019 with Chembur Police Station for the offencesBhagyawant Punde on 10 06 2021 on 11 06 4 23WP 4330 19 & 1476 2021.docpunishable under Sections 370 read with 34 of the Indian PenalCode and sections 75 79 and 23 of the Juvenile JusticeAct 2015on 28th February 2019and following order was passed: Bhagyawant Punde on 10 06 2021 on 11 06 9 23WP 4330 19 & 1476 2021.doc1In terms of orders dated 12th February 2019 learned A.P.P. has made the statement ofchild available for our perusal. The statementshows that child was not going to school and wasperforming household duties.2 The offence alleged are under Sections370 and 34 of the Indian Penal Code as alsoSections 75 79 and 23 of Juvenile JusticeAct 2015.3In the light of material available instatements we are not inclined to intervene inextra ordinary jurisdiction at this juncture. 4We however keep all contentions ofpetitioner open and with liberty to petitioner toraise the same at appropriate juncture beforetrial Court we dispose of present petition.Upon perusal of the aforesaid order it clearly appearsthat this Court declined to quash the FIR on merits. 11.Mr. Deepak Thakre Public Prosecutor appearing alongwith Mrs. S.D. Shinde for Respondent State vehemently opposedthe prayer in the petition for quashing the impugned FIR on thebasis of alleged amicable settlement. It is submitted that the offencecommitted by the petitioners is serious in nature and has greatimpact on society inasmuch as the petitioners have acted contraryto the provisions of the said Act and has given cruel treatment tovictim girl during her stay in the house of petitioners. ThePetitioners under the false pretext that victim girlwhich wasnot sufficient to meet her hunger and if she asked for moreBhagyawant Punde on 10 06 2021 on 11 06 12 23WP 4330 19 & 1476 2021.docchapatispetitioner would tell her that eat lessotherwise she will become fat. She further stated that petitionerused to woke up her early in the morning. She further stated thatshe used to do household work like cleaning the floor drying theclothes cleaning entire house to drop the daughter of petitioners tobus stop and pick up her and carry her school bag. She also statedin said statement that if she committed any mistake the petitioner Rishi Prabha Prasad used to beat her. She also stated these facts toone uncle who used to come to collect garbage of petitioner’s house who fed her a vadapav whenever she was hungry.15.It is true that the parents of victim and originalcomplainant have filed their respective affidavits stating that theydo not have objection for quashing the impugned FIR and chargesheet. It is also true that the parents of the victim girl appearedbefore us in chamber and stated that they do not have any objectionfor quashing the impugned FIR and chargesheet. However statements of victim cannot be ignored. At the relevant time her agewas 10 years. In addition to this there are statements of more than10 witnesses in tune with prosecution case. The concernedinvestigating officer has also collected CCTV footage andincriminating material and the statements of CCTV operator hasBhagyawant Punde on 10 06 2021 on 11 06 13 23WP 4330 19 & 1476 2021.docbeen recorded. In the copy of letter annexed to the charge sheet it isstated that some of the witnesses whose statements have beenrecorded by the investigating officer are residing in the samesociety. Therefore merely because parents of victim andcomplainant have filed the affidavits thereby joining the prayer ofpetitioners for quashing the impugned FIR on the basis of amicablesettlement the FIR and charge sheet cannot be quashed. Thestatements of victim so also statements of witnesses and otherincriminating material would be sufficient to proceed with the trial.The Public Prosecutor has vehemently opposed the prayer ofpetitioner for quashing the FIR on the basis of alleged amicablesettlement between parents of victim original complainant andpetitioners. Prima facie it appears that financial condition of parentsof victim is not good to pull on the needs of family and therefore under said circumstances said girl was given in the custody of thepetitioners at Delhi. It appears that victim accompanied with theRishi Prabha Ranjitkumar Prasad travelled from Delhi to Mumbai.16.The charge sheet is filed invoking Sections 75 79 and23 of the Juvenile JusticeAct 2015 and Section 370 read with 34 of Indian Penal Code. So far asthe Juvenile JusticeAct 2015 isconcerned the same has been brought into force to take care ofBhagyawant Punde on 10 06 2021 on 11 06 14 23WP 4330 19 & 1476 2021.docchildren alleged and found to be in conflict with law and children inneed of care and protection by catering to their basic needs throughproper care protection development treatment social re integration by adopting a child friendly approach keeping in viewthe best interest of children in mind. The provisions of said Act arehaving overriding effect and would prevail over provisions of anyother Act in case of conflict. Sub Section 4 of Section 1 of the saidAct reads as under: 1. Short title extent commencement andapplication(3) Notwithstanding anything contained in anyother law for the time being in force theprovisions of this Act shall apply to all mattersconcerning children in need of care andprotection and children in conflict with law includingof the said Act it is stated thus: 2. Definitions.(2) “child in need of care and protection” means achildwho is found without any home or settled placeBhagyawant Punde on 10 06 2021 on 11 06 15 23WP 4330 19 & 1476 2021.docof abode and without any ostensible means ofsubsistence of(ii) who is found working in contravention of labourlaws for the time being in force or is found begging or living on the street or(iii) who resides with a personand such person(a) has injured exploited abused or neglected thechild or has violated any other law for the timebeing in force means for the protection of child or(b) has threatened to kill injure exploit or abusethe child and there is reasonable likelihood of thethreat being carried out or(c) has killed abused neglected or exploited someother child or children and there is a reasonablelikelihood of the child in question being killed abused exploited or neglected by that person or18.It follows from the statement of objects and reasons ofthe said Act that this special legislation has brought into force toensure proper care protection development treatment social re integration by adopting a child friendly approach keeping in viewthe best interest of children in mind. The provisions of this Act shallapply to all matters concerning child in need and the child inconflict with law. The provisions of this Act have overriding effect visa vis the provisions in other Acts in relation to matters concerningof child in need and care and protection and a child in conflict withlaw.Bhagyawant Punde on 10 06 2021 on 11 06 16 23WP 4330 19 & 1476 2021.doc19.In the facts of the present case the Respondent State hasinvoked Sections 23 75 and 79 of the said Act. Section 75 and 79 ofthe said Act which reads thus: 75. Punishment for cruelty to child. Whoever having the actual charge of or control over a child assaults abandons abuses exposes or wilfullyneglects the child or causes or procures the child tobe assaulted abandoned abuses exposed orneglected in a manner likely to cause such childunnecessary mental or physical suffering shall bepunishable with imprisonment from a term whichmay extent to three years or with find of one lakhrupees or with both:Provided that in case it is found that suchabandonment of the child by the biological parentsis due to circumstances beyond their control itshall be presumed that such abandonment is notwilful and the penal provisions of this section shallnot apply in such cases:Provided further that if such offence iscommitted by any person employed by or managingan organisation which is entrusted with the careand protection of the child he shall be punishedwith rigorous imprisonment which may extend upto five years and fine which may extend up to fivelakhs rupees. Provided also that on account of the aforesaidcruelty if the child is physically incapacitated ordevelops a mental illness or is rendered mentallyunfit to perform regular task or has risk to life orlimb such person shall be punishable withrigorous imprisonment not less than three yearsbut which may be extended up to ten years andshall also be liable to fine of five lakhs rupees. 79. Exploitation of a child employee. Notwithstanding anything contained in any law forthe time being in force whoever ostensibly engagesBhagyawant Punde on 10 06 2021 on 11 06 17 23WP 4330 19 & 1476 2021.doca child and keeps him in bondage for the purpose ofemployment or withholds his earnings or uses suchearning for his own purposes shall be punishablewith rigorous imprisonment for a term which mayextend to five years and shall also be liable to fine ofone lakh rupees.20.The Respondent State has also invoked Section 370 ofIPC which reads thus:1[370. Trafficking of person. Whoever for thepurpose of exploitation recruits transportsharbours transfer orreceives a person orpersons by First using threats orSecondly using force or any other form of coercion orThirdly by abduction orFourthly by practising fraud or deception orFifthly by abuse of power orSixthly by inducement including the giving or receiving of payments or benefits in order to achieve the consent of any person having control over the person recruited transported harboured transferred or received commits the offence of trafficking. 21.In the context of subject matter of present petitions itwould be gainful to refer herein below some of the important articlesof the ‘The United Nations Convention on the Rights of the Child.’ Article 2 1. States Parties shall respect and ensure therights set forth in the present Convention to eachBhagyawant Punde on 10 06 2021 on 11 06 18 23WP 4330 19 & 1476 2021.docchild within their jurisdiction withoutdiscrimination of any kind irrespective of thechild s or his or her parent s or legal guardian srace colour sex language religion political orother opinion national ethnic or social origin property disability birth or other status.2. States Parties shall take all appropriatemeasures to ensure that the child is protectedagainst all forms of discrimination or punishmenton the basis of the status activities expressedopinions or beliefs of the child s parents legalguardians or family members.Article 5 States Parties shall respect the responsibilities rights and duties of parents or where applicable the members of the extended family orcommunity as provided for by local custom legalguardians or other persons legally responsible forthe child to provide in a manner consistent withthe evolving capacities of the child appropriatedirection and guidance in the exercise by thechild of the rights recognized in the presentConvention. Article 9 1. States Parties shall ensure that a child shallnot be separated from his or her parents againsttheir will except when competent authoritiessubject to judicial review determine inaccordance with applicable law and procedures that such separation is necessary for the bestinterests of the child. Such determination may benecessary in a particular case such as oneinvolving abuse or neglect of the child by theparents or one where the parents are livingseparately and a decision must be made as to thechild s place of residence.Article 27 Bhagyawant Punde on 10 06 2021 on 11 06 19 23WP 4330 19 & 1476 2021.doc1. States Parties recognize the right of every childto a standard of living adequate for the child sphysical mental spiritual moral and socialdevelopment.2. The parent(s) or others responsible for thechild have the primary responsibility to secure within their abilities and financial capacities theconditions of living necessary for the child sdevelopment.Article 31 1. States Parties recognize the right of the child torest and leisure to engage in play andrecreational activities appropriate to the age ofthe child and to participate freely in cultural lifeand the arts.2. States Parties shall respect and promote theright of the child to participate fully in culturaland artistic life and shall encourage the provisionof appropriate and equal opportunities forcultural artistic recreational and leisure activity.Article 32 1. States Parties recognize the right of the child tobe protected from economic exploitation and fromperforming any work that is likely to behazardous or to interfere with the child seducation or to be harmful to the child s healthor physical mental spiritual moral or socialdevelopment.Article 36 States Parties shall protect the child against allother forms of exploitation prejudicial to anyaspects of the child s welfare. Article 37 Bhagyawant Punde on 10 06 2021 on 11 06 20 23WP 4330 19 & 1476 2021.doc(c) Every child deprived of liberty shall be treatedwith humanity and respect for the inherentdignity of the human person and in a mannerwhich takes into account the needs of persons ofhis or her age. In particular every child deprivedof liberty shall be separated from adults unless itis considered in the child s best interest not to doso and shall have the right to maintain contactwith his or her family through correspondenceand visits save in exceptional circumstances 22.In the light of discussion in foregoing paragraphs anirresistible conclusion is that the impugned FIR and charge sheetcannot be quashed as prayed by the petitioners on the basis ofalleged amicable settlement between the parents of victim andcomplainant when such amicable settlement has been vehementlyopposed by the Respondent State. Even if the affidavits ofcomplainant and parents of victim are excluded from theconsideration there is sufficient material including statements ofvictim and other witnesses coupled with incriminating materialincluding CCTV footage so as to proceed with the trial. It prima facie appears that due to financial crunch facedby parents of victim and as they are having 5 children they decidedto give custody of victim to Rishi Prabha Ranjitkumar Prasad whobrought the victim from Delhi to Mumbai.Bhagyawant Punde on 10 06 2021 on 11 06 21 23WP 4330 19 & 1476 2021.doc23.The Hon’ble Supreme Court in the case of Gian SinghVersus State of Punjab and Another 1 in paragraph 61 observed thatin compromise between victim and the offender in relation to theoffences under special statutes like the Prevention of Corruption Actor the offences committed by public servants while working in thatcapacity etc cannot provide for any basis for quashing criminalproceedings involving such offences. In the present case thepetitioners are being prosecuted under the provisions of theJuvenile JusticeAct 2015 whichis a Special Act.24. The case in hand stands on different footings vis a visroutine criminal cases predominatingly having civil flavour andwhich are personal in nature. Importantly an outcome of thepresent case will have impact upon the society. The offencescommitted by the petitioners cannot be said to be personal innature.25.The Hon’ble Supreme Court in the case of State of M.P.Versus Laxmi Narayan 2 has observed that in the exercise of thepower under Section 482 and while dealing with a plea that thedispute has been settled the High Court must have due regard to1(2012) 10 SCC 3032(2019) 5 SCC 688Bhagyawant Punde on 10 06 2021 on 11 06 22 23WP 4330 19 & 1476 2021.docthe nature and gravity of the offence. Heinous and serious offencesinvolving mental depravity or offences such as murder rape anddacoity cannot appropriately be quashed though the victim or thefamily of the victim have settled the dispute. Such offences are trulyspeaking not private in nature but have a serious impact uponsociety. The decision to continue with the trial in such cases isfounded on the overriding element of public interest in punishingpersons for serious offences.26.Upon careful perusal of the aforesaid guidelines it isabundantly clear that the outcome of cases which have impact uponthe society cannot be disposed of or allowed on the basis ofamicable settlement. The Public Prosecutor has vehemently opposedthe prayer of the petitioners to allow the petition on the basis ofalleged compromise between petitioners parents of victim and thecomplainant.27.In that view of the matter we are not persuaded toquash the impugned FIR and charge sheet on the basis of allegedamicable settlement between the petitioners parents of victim andcomplainant. Hence writ petitions stand rejected.Bhagyawant Punde on 10 06 2021 on 11 06 23 23WP 4330 19 & 1476 2021.doc28.The observations made herein above are prima facie innature and confined to the adjudication of the present writ petitionsonly. The trial court shall not get influenced by the saidobservations during the course of trial.( N.R. BORKAR J.)(S. S. SHINDE J.)Bhagyawant Punde 

Summary: The outcome of cases in which there is an involvement of any grave offence and wherein, the case is of such nature that it will have an impact upon the society, then it cannot be disposed of or allowed on the basis of amicable settlement between the victim/ victim’s family and the accused. The judgement was passed by Justice S.S Shinde and Justice N.R Borkar of the Bombay High Court in the case of Rishi Prabha Ranjitkumar Prasad Vs The State of Maharashtra and Ors. [ Cr. W.P. 4330 of 2019]. The Judgement has to be read along with the case of Ranjit Kumar Prasad Vs  The Senior Inspector of Police &amp; Ors. [Cr. W.P 1476 of 2021]. In the instant case, a FIR was filed by Respondent No. 2 (First Informant) against the Petitioner on behalf of a ten year old girl who had been living with the Petitioner and her family as a house help. The victim in this case had informed the respondent about the brutalities inflicted on her by the Petitioner and her husband, on basis of which the FIR was filed under Sections 370 read with 34 of the Indian Penal Code and sections 75, 79 and 23 of the Juvenile Justice (Care and Protection of Children) Act, 2015., However, the Petitioner, the accused in the FIR had filed a petition seeking quashing of FIR and the complaint made by the Victim’s parents. Even though, initially the victim’s parents and Informant 1, filed the FIR against the Petition, however, later on both of them submitted an affidavit seeking cancellation of their complaint as the FIR was a result of mere misunderstanding. The Court vehemently opposed the prayer of the petitioners to allow the petition on the basis of alleged compromise between petitioners, parents of victim and the complainant. Relying upon the judgement made in the case of Gian Singh Versus State of Punjab and Anr [(2012) 10 SCC 303], the Court observed that, “In compromise between victim and the offender in relation to the offences under special statutes cannot provide for any basis for quashing criminal proceedings involving such offences and as the instant case involved provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, which is a Special Act”. Therefore, the Court decided to dismiss the petition seeking quashing of the complaint made against the petitioner.