Common object required for offence punishable under Section 302/149 IPC: Supreme Court of India

STATERespondent IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 981 2021 Date of decision: 26th March 2021 Through Mr. B.P. Singh and Mr. Pratyaksh ..... Petitioner Roy Advocates IN THE MATTER OF: PAWAN GAUR Through Ms. Meenakshi Chauhan APP HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present petition under Section 482 of the Code of Criminal Procedure has been filed for quashing FIR No.47 2020 dated 19.02.2020 registered in Police Station Pahar Ganj New Delhi for offence under Sections 376 and 354 IPC on the ground that the parties have amicably settled the matter and the prosecutrix is not interested in prosecuting the petitioner. On a complaint of respondent No.2 FIR No.47 2020 was registered on 19.02.2020 in Police Station Pahar Ganj New Delhi stating that she is staying with her mother at the address given in the FIR. It is stated that in the year 2009 the prosecutrix was working as a Probationary Officer in Bank of Baroda House Branch India Gate where the petitioner was working as a Manager. It is alleged that the petitioner told her that he had Crl.M.C.981 2021 links in the U.S.A. and he can get a job for her there and also help her settle there. In March 2009 the petitioner lured the complainant calling her at his office at Pahar Ganj and forcefully tried to have physical relations with her but she did not reveal the same to anyone in the hope that he would get her settled in U.S.A. It is stated that the petitioner has established physical relationship with the prosecutrix. It is further stated that the petitioner told the mother of the prosecutrix that he has opened his company and in case the prosecutrix and her mother invest money in his company he would give 2% monthly interest and also get a job for the prosecutrix. It is stated that the mother of the prosecutrix gave a loan of Rs.24 00 000 to the petitioner in 2014. It is stated that after repeated requests the petitioner gave interest of Rs.7 50 000 from 2016 to 2017 after which he stopped giving money. It is stated that on 23.02.2019 the petitioner called the prosecutrix and told her to sit in the car while he calculates the amount which was due and payable by him. It is stated that when the prosecutrix sat in the car he started misbehaving and starting touching her private parts. It is stated that the prosecutrix went away from the car and filed a complaint in Police Station Pahar Ganj on 25.02.2019. It is stated that the petitioner pleaded with the prosecutrix not to go ahead with the complaint and he would return the money. It is stated that two post dated cheques of Rs.2 00 000 and Rs.24 00 000 were given by the petitioner. It is stated that after getting the cheques no action was taken against the petitioner. It is stated that both the cheques got dishonoured. The complainant approached the Police Station and has given the complaint in question. This petition has been filed on the ground that a Memorandum of Understanding has been entered into between the parties and the issues Crl.M.C.981 2021 have been amicably settled. Other than stating that the parties have entered into an amicable settlement no other ground has been raised in the petition on the merits of the case for quashing the complaints. The Supreme Court in Gian Singh v. State of Punjab reported as 2012) 10 SCC 303 observed as under: “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 FIR may be exercised where the offender and the 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 a serious impact on society. Similarly any compromise between the victim and the offender in relation to the offences under special statutes like the 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 a different footing for the purposes of quashing particularly the Crl.M.C.981 2021 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 the High Court may quash the criminal proceedings if in its view because of the compromise between the offender and the victim the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 the 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.” emphasis added) After relying on Gian Singhthe Supreme Court in Narinder Singh & Ors. v. State of Punjab & Anr. reported as6 SCC 466 has observed as under: 29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt under Section 482 of the Code the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable where the parties have settled the matter between themselves. However this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that Crl.M.C.981 2021 basis petition for quashing the criminal proceedings is filed the guiding factor in such cases would be to secure: i) ends of justice or ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder rape dacoity etc. Such offences are not private in nature and have a serious impact on society. Similarly for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. those criminal cases having 29.4. On overwhelmingly and predominantly civil character particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among 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." the other hand emphasis added) In State of M.P. v. Laxmi Narayan & Ors. reported as5 SCC 688 the Supreme Court has observed as under : 15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove it is observed Crl.M.C.981 2021 and held as under: 15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves 15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder rape dacoity etc. Such offences are not private in nature and have a serious impact on society 15.3. Similarly such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender " emphasis added) The petitioner has been alleged of committing of an offence of rape. The grounds stated in the petition under Section 482 Cr.P.C. are oriented towards the fact that the parties have entered into a compromise and that no useful purpose will be served to continue with the prosecution. No ground has been raised on the merits of the case. In view of the judgments of the Supreme Court which is binding on all Courts under Article 141 of the Constitution of India this Court is not inclined to quash the FIR in which offence under Section 376 IPC has been levelled against the petitioner for the reasons that an offence under Section 376 IPC is one against the society and High Courts ought not to use the inherent powers under Section 482 Crl.M.C.981 2021 Cr.P.C. in quashing FIRs under Section 376 IPC even if the prosecutrix has entered into a compromise with the accused. In view of the above the petition is dismissed. SUBRAMONIUM PRASAD J. MARCH 26 2021 Crl.M.C.981 2021 

Summary: It is always open for the appellate court to reverse findings on appreciation of evidence on record and there must be a common objective for the commission of an offense punishable under   Section   302/149 Indian Penal Code. This remarkable judgment was passed by the Hon’ble Supreme court of India in the matter of Rajendra @ Rajappa &amp; Ors v. the State of Karnataka [CRIMINAL APPEAL NO.    1438     OF 2011]. The complainant  (PW­1)   Sheshamma,  the wife of the deceased.     That on   02.02.2003   the complainant and her husband went to coolie work in the morning and when they were returning along with firewood bundle and PW­2 was following them, at about 11:30 a.m. when the complainant and her husband came near the Government Hostel, all the accused A­1 to A­6 armed with an ax, stick, pickaxe, and stone, attacked the deceased and thereby inflicted fatal wounds on his person by assaulting him with weapons which they were carrying.  It is further alleged that the complainant rescued her husband, went behind the hostel, the accused followed them and A­1 assaulted the deceased with an ax on the left cheek, 3 Crl.A.No.1438 of 2011 A­2 assaulted with bedaga, A­3   assaulted with a stick, A­4 assaulted with the club, A­5 assaulted with an ax.  A­1 is the father of the complainant; A­2   and   A­4   are uncles of the complainant; A­3 and A­5 are sons of A­1’s sister and A­6 is one of the sisters of A­1.  It is alleged in the complaint that all the accused have attacked the deceased and started abusing him saying that, in spite of telling them not to pass from the front of their houses and to show their faces, they have come towards the side of the accused.  Further, it is stated in the complaint that when she and her husband tried to escape and ran away from the backside of the hostel, all the accused followed them and attacked them.   Further, it is stated that as her husband sustained grievous injuries he died on the spot, and said the incident was witnessed by her mother Sayamma and her sister Rathnamma, Mahesh, and their villagers Haji, Hussain has also seen.  In her complaint, she prayed to take action against the accused. The police, after investigation of the case and after completion thereof, filed a charge sheet against the accused under various sections, as stated already. The court viewed that “In view of the foregoing, we are of the view that the judgments relied on by the learned counsel for the appellants would not render any assistance in support of her case that the High Court has committed error in reversing the acquittal recorded by the Crl.A.No.1438 of 2011 trial court.”