Ensure Victim's Presence Before Quashing Serious Offences, Especially Against Women, Based On Settlement: Supreme Court To High Courts

The Supreme Court has advised High Courts to exercise caution before quashing non-compoundable cases based on settlement between the victim and the accused. Without ensuring that the settlement is genuine, quashing petitions should not be allowed.

Even if there is an affidavit of the victim accepting the settlement, it is advisable to seek the victim's presence, either physically or virtually, before quashing serious offences, especially those against women, the Court advised.

A bench comprising Justices Abhay S Ok and Augustine George Masih observed :

"When petitions are filed before the High Court by invoking either Article 226 of the Constitution of India or Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') for quashing  criminal proceedings of non-compoundable offences on the ground of settlement, the High Court must satisfy itself that there is a genuine settlement between the victim and the accused. Without the Court being satisfied with the existence of a genuine settlement, the petition for quashing cannot proceed further. If the Court is satisfied about the existence of a genuine settlement, the other question to be considered is whether in the facts of the case, the power of quashing deserves to be exercised. Even if an affidavit of the victim accepting the settlement is on record, in cases of serious offences and especially against women, it is always advisable to procure the presence of the victim either personally or through video conference so that the Court can properly examine whether there is a genuine settlement and that the victim has no subsisting grievance."

The Court was considering an appeal filed by a victim challenging an order of the Gujarat High Court quashing a case, based on an alleged settlement, involving allegations of repeated rape (Section 376(2)(n) IPC) and Section 3(1)(R), 3(1)(w) and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The victim filed the appeal denying any settlement of the case and the affidavit produced by the accused.

The Supreme Court noted that the victim was an illiterate woman and the affidavits bore her thumb impressions, identified by her brother. The Court further noted that the affidavit did not contain the endorsement that the contents of the affidavits were explained to the illiterate person affirming the same.When such an endorsement was absent, the High Court ought to have verified its contents by personally interacting with the victim, said the Supreme Court.

"As the High Court has passed the impugned judgment and order without verifying whether there was a genuine settlement between the appellant and the second respondent, the impugned judgment and order cannot be sustained," the Court observed.

The matter was remanded back to the High Court ith a direction to the victim to remain present before the High Court on the date fixed. "The High Court will allow the appellant to explain her position vis-`a-vis the stand taken by the second respondent about the settlement. After hearing the appellant, the High Court would be well within its powers to order an inquiry to be held by a Judicial Officer about the manner in which the affidavits have been executed and on the question of whether the thumb impressions of the appellant were taken on the affidavits without explaining to her the contents of the affidavits," the Court directed.

The criminal case was restored. If the High Court finds that there was a genuine settlement, it should consider the question whether the powers under Section 482 of Cr.P.C. or Article 226 of the Constitution are to be exercised to quash the criminal proceedings based on the compromise. The Supreme Court clarified that it has left all questions open.

Senior Advocate Indira Jaising, Advocates Paras Nath Singh(AoR), Rohin Bhatt and Sadeeq Ur Rahman appeared for the petitioner.

Case : XYZ v State of Gujarat

Citation : 2024 LiveLaw (SC) 887

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