Compounding of case u/s 376 ipc
Somnath
(Querist) 15 October 2014
This query is : Resolved
My friend working West Bengal Police as Sub-Inspector of Police. His girlfriend named Sarmista Ghosh lodged one complain at Shibpur Police Station,Howrah, West Bengal u/s376 and 420 of IPC on August 2012. After that she was not attended any investigation. Now she wants to withdraw the case and she done one affidavit to the concern PS. But PS denied to take that and do not give any charge sheet or frt to court. But she wants to withdraw the case. Kindly let me know what is the procedure and any judgement to do the case compounding.
Vinesh K Chhaya
(Expert) 15 October 2014
IPC Section 376 is not compoundable under section 320 hence it can not be withdrawn(If FIR Registered)...You have not cleared that The FIR registered or only written complain is under investigation ?
Nadeem Qureshi
(Expert) 15 October 2014
dear somnath
she may histile at the time of evidence. or file quashing petition before high court
Rajendra K Goyal
(Expert) 15 October 2014
36 is non compoundable offences, if she want she can become hostile in evidences.
Devajyoti Barman
(Expert) 15 October 2014
It can not be done in this manner.
Quashing is an option but that too would depend on the discretion of high court.
Otherwise both of them will have to wait till conclusion of trial.
ajay sethi
(Expert) 15 October 2014
move HC for quashing of complaint filed
Sudhir Kumar, Advocate
(Expert) 16 October 2014
Advise of Mr Sethi will be more appropriate.
The accused is govt servant and if the complainant turns hostile during evidence and acquitted. This way the deptt inquiry can still be initiated.
Application for quashing the the basis of said affidavit will be useful.
Anirudh
(Expert) 16 October 2014
Power conferred under Section 482 of the Criminal Procedure Code is distinct from the power which lies in the Court to compound the offences under Section 320 of the Indian Penal Code.
Therefore, even in respect of non-compoundable offences, the HC can use its discretion u/s. Sec. 482 Cr.PC to quash the proceedings, especially where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
When the parties have reached the settlement and on that 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.
(d) While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
(e) 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.
(f) On the other hand, those criminal cases having 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 themselves.
(g) 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.
(h) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed.
(i) Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above.
For this purpose, both the parties have to move the petition before the High Court praying for quashing of the FIR.
T. Kalaiselvan, Advocate
(Expert) 19 October 2014
As advised by experts, it would be better to approach high court for quashing the case.
