Xyz vs The State Of Gujarat

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO._________/2024 (Arising out of Special Leave Petition (Crl.) No.4748/2024)

XYZ Appellant(s)

VERSUS

THE STATE OF GUJARAT & ANR. Respondent(s)

J U D G M E N T

ABAHY S.OKA, J.

1. Leave granted.

FACTUAL DETAILS

2. The appellant is the first informant. A First

Information Report was registered at the instance of the

appellant for the offences punishable under Sections

376(2)(N) and 506 of the Indian Penal Code, 1860 (for

short, ‘the IPC’). The offences under Section 3(1)(R), Signature Not Verified Digitally signed by KAVITA PAHUJA 3(1)(w) and 3(2)(5) of the Scheduled Castes and Scheduled Date: 2024.11.16 12:25:15 IST Reason:

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Tribes (Prevention of Atrocities) Act, 1989 (for short,

‘the Atrocities Act’) were also alleged. The second

respondent is the accused named in the FIR. A charge

sheet was filed against the second respondent for the

said offences.

3. The second respondent filed a petition before the

High Court for quashing the charge sheet based on the

settlement allegedly arrived at between the parties. The

High Court, by the impugned judgment and order, has

proceeded to quash the criminal proceedings with a

direction that the compensation received by the appellant

under the Atrocities Act shall be refunded to the

concerned authority.

SUBMISSIONS

4. The contentions raised by the learned Senior Counsel

appearing for the appellant can be summarized as follows:

(a) The High Court ought not to have quashed the

criminal proceedings without securing the personal

presence of the appellant before it and without verifying

from the appellant whether there was a settlement;

(b) Inviting our attention to the affidavits allegedly

affirmed by the appellant, which are referred to in

paragraph 5 of the impugned judgment, she submitted that, 3

on the face of it, the affidavits are suspicious. The

first affidavit is in English and was executed at

Ahmedabad on 18th August 2023. The second affidavit, which

is in Gujarati language, was allegedly executed by the

appellant on the same day at Rajkot. The appellant is

illiterate and has allegedly put her thumb impressions on

the affidavits. She submitted that there is no

endorsement on the affidavit made by the witness or

Advocate representing the appellant or the notary public

that the contents of the affidavit were explained to her.

It is submitted that in the absence of any such

endorsement, the High Court ought not to have relied upon

the affidavits and that also without securing the

personal presence of the appellant and without verifying

from the appellant whether there was a settlement;

(c) She submitted that, as pointed out in the counter

filed by the second respondent, an objectionable practice

was followed of producing the affidavits signed by the

complainant/victim along with the quashing petition. She

invited our attention to what is stated in paragraph 16

of the counter filed by the second respondent;

(d) Her submission is that the High Court has not done

its duty of verifying whether there was any settlement; 4

(e) Her submission is that it is not clear whether the

Advocate whose appearance is shown in the impugned

judgment as representing the appellant had filed

vakalatnama/ authority signed by the appellant;

(f) Her contention is that since the affidavits are no

affidavits in the eyes of law, the same cannot be the

basis of recording a finding that there was a settlement.

She submitted that these things are suspicious which call

for inquiry and

(g) Even assuming there was a settlement, the High Court

ought not to have quashed the charge sheet considering

the gruesome nature of the offence, which is against

society.

5. Learned Senior Counsel appearing for the second

respondent pointed out that the affidavit in English is

also executed at Rajkot. Inviting our attention to the

said affidavit, he submitted that as the same was to be

filed in the quashing petition to be filed in the High

Court of Gujarat at Ahmedabad, the title of the affidavit

is “In the High Court of Gujarat at Ahmedabad”, but the

stamp of the notary shows that it was executed at Rajkot.

He submitted that the affidavits had been counter-signed

by the appellant’s brother (Mohan Chauhan). He pointed 5

out that copies of the Aadhar cards were annexed to the

affidavits. He also invited our attention to a letter

dated 11th November, 2023 in the Hindi language sent by

the appellant to the Officer-in-charge of the concerned

police station and, in particular, the last paragraph of

the said letter, which records that she had affixed her

thumb impressions on certain documents and the second

respondent paid a sum of Rs.3,00,000/- to her husband.

He submitted that, as stated in the counter affidavit, on

a date fixed for hearing of the bail application filed

before the High Court by the second respondent, the

appellant was personally present in the High Court along

with her husband.

6. Learned Senior Counsel representing the State has

supported the submissions made by learned Senior Counsel

appearing for the appellant.

OUR VIEW

7. The offences alleged were very serious. The offences

alleged were under Section 376(2)(N) of the IPC and the

Atrocities Act. 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 6

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.

It was all the more necessary in the present case as

the affidavits filed on record indicate that the

appellant is an illiterate woman. Both the affidavits

bear thumb impressions of the appellant, which were

identified by her brother Mohan Chauhan. When illiterate

persons affirm such affidavits by putting their thumb

impressions, usually, the affidavit must bear an 7

endorsement that the contents of the affidavits were

explained to the person affirming the same. After

noticing the absence of such an endorsement, the High

Court ought to have directed the appellant to personally

remain present before the Court so that the High Court

could have verified whether the appellant had put her

thumb impressions on the affidavits after she was

informed about the contents of the affidavit and after

she had fully understood the contents of the affidavit.

In this case, two affidavits were executed on the same

day. That should have one more reason before the High

Court to be very cautious before acting upon the

affidavits.

8. Now, a contention has been raised by the appellant

that thumb impressions have been taken on the typed

affidavits in suspicious circumstances without explaining

the contents thereof. The allegation is that the second

respondent was the appellant's employer.

9. 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.

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10. We are, therefore, inclined to remand the case to

the High Court with a direction to the appellant to

remain present before the High Court on the date fixed by

this Court. 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.

11. It will always be open for the appellant to file an

affidavit before the High Court on the issue of

settlement.

12. Accordingly, we set aside the impugned judgment and

order dated 29th September, 2023 and restore Criminal

Miscellaneous Application (for quashing and setting aside

the FIR/order) No.15041 of 2023 to the file of the High

Court. We direct that the restored petition be listed

before the Roster Bench before the High Court on 2nd

December, 2024 in the morning when the appellant and the

second respondent shall remain present before the High 9

Court. Even the State shall be represented before the

High Court on that day.

13. It will be open for the appellant to file an

affidavit on the aspect of settlement before the High

Court. After considering all the relevant materials, if

necessary, the High Court can always order an inquiry to

be held by a Judicial Officer on the question of whether

there was a settlement between the appellant and the

second respondent and whether the affidavits were

affirmed after explaining the contents thereof to the

appellant.

14. If the High Court finds that there was, in fact, a

settlement arrived between the appellant and the second

respondent, the High Court will have to consider the

question of whether the power under Section 482 of

Cr.P.C. or Article 226 of the Constitution can be

exercised to quash the criminal proceedings based on

compromise. All questions in that behalf are kept open.

15. The Registry shall forward a copy of this judgment

to the Registrar (Judicial) of the High Court of Gujarat

at Ahmedabad, who shall ensure that the restored petition

is listed before the Roster Bench as directed above. 10

16. The Appeal is partly allowed on the above terms.

17. Pending application(s), if any, shall stand disposed

of.

..........................J. (ABHAY S.OKA)

.........................J. (AUGUSTINE GEORGE MASIH)

NEW DELHI;

NOVEMBER 5, 2024.

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ITEM NO.2 COURT NO.6 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (Crl.) No.4748/2024

(Arising out of impugned final judgment and order dated 29-09-2023 in CRMA No. 15041/2023 passed by the High Court Of Gujarat At Ahmedabad)

XYZ Petitioner(s)

VERSUS

THE STATE OF GUJARAT & ANR. Respondent(s)

(FOR ADMISSION and I.R. and IA No.67052/2024-EXEMPTION FROM FILING O.T.)

Date : 05-11-2024 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE ABHAY S. OKA HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

For Petitioner(s) Ms. Indira Jaising, Sr. Adv.

Mr. Paras Nath Singh, AOR Mr. Rohin Bhatt, Adv.

Mr. Sadeeq UR Rahman, Adv.

For Respondent(s) Ms. Ruchi Kohli, Sr. Adv.

Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv.

Ms. Abhipsa Mohanty, Adv.

Ms. Shrishti Mishra, Adv.

Mr. Rakesh Khanna, Sr. Adv.

Mr. Rakesh Malhotra, Adv.

Ms. Savita Singh, AOR Mr. Kushal Malhotra, Adv.

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UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is partly allowed in terms of the signed

Reportable Judgment.

Pending application(s), if any, shall stand disposed

of.

(KAVITA PAHUJA) (AVGV RAMU) ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)

[Signed Reportable Judgment is placed on the file]