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Synopsis

The Supreme Court recently observed that when petitions are filed before the High Court by invoking either Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure, 1973, 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. 

A bench of Justices Abhay S Oka and Augustine George Masih emphasised that 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 bench said.

The court set aside the Gujarat High Court's order of September 29, 2023, which quashed the criminal proceedings lodged by a woman against her employer for offences under Sections 376(2)(N) and 506 of the 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.

Acting on the woman-victim's plea, the bench remitted the matter back to the High Court, holding that it had passed the impugned judgment and order without verifying whether there was a genuine settlement between the appellant and the accused, so the impugned judgment and order could not be sustained.

The appellant contended she was an illiterate person and thumb impressions had been taken on the typed affidavits in suspicious circumstances without explaining the contents thereof to her.

"When illiterate persons affirm such affidavits by putting their thumb impressions, usually, the affidavit must bear an 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," the bench said.

In this case, the court noted that 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, the bench said.

"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," the bench opined.

After hearing the appellant, the court said that the High Court was well within its powers to order an inquiry by a Judicial Officer into the manner in which the affidavits had been executed and whether the appellant's thumb impressions had been taken on the affidavits without explaining their contents to her.

"It will always be open for the appellant to file an affidavit before the High Court on the issue of settlement," the bench said.

After considering all the relevant materials, the bench said, 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 accused and whether the affidavits were affirmed after explaining the contents thereof to the appellant.

"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 CrPC or Article 226 of the Constitution can be exercised to quash the criminal proceedings based on compromise," the bench said.

In the matter, the High Court, by the impugned judgment and order, had proceeded to quash the criminal proceedings with a direction that the compensation received by the appellant under the Atrocities Act be refunded to the concerned authority.

Among other arguments, the woman-victim contended that since the affidavits were not affidavits in the eyes of law, the same could not be the basis of recording a finding that there was a settlement. She submitted that these things were suspicious which called for inquiry. 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, her counsel said.

The counsel, appearing for the second respondent-accused pointed out that the affidavit in English was also executed at Rajkot. Inviting the court's 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 was “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. He pointed out that copies of the Aadhar cards were annexed to the affidavits. 

He also referred to a letter of November 11, 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 recorded 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 also 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.

Case Title: XYZ Vs The State of Gujarat & Anr