# Pankaj Yadav v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-27
- **Case number:** Application U/S 482. No. 2793 of 2023
- **Bench:** Ajai Kumar Srivastava- I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-yadav-v-state-of-u-p-ors-50007
- **Pages:** 7

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code1860-Sections 376 -The Protection of
Children from Sexual Offences Act, 2012Sections 3 & 4-Offence of rape is not
private in nature rather it has a serious
adverse impact on society-No justification
to quash the proceedings against the
applicant
on
the
basis
of
alleged
compromise between the accused and the
victim.

Application U/s 482 CrPC disposed off. (E15)

List of Cases cited:

## Text

4 All. Pankaj Yadav Vs. State of U.P. & Ors.
703
herein above after affording opportunity of
hearing to all concerned parties.

13. With the aforesaid observations/
directions, the instant application under
Section 482 Cr.P.C. stands disposed of.
----------
(2023) 4 ILRA 703
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.03.2023

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA- I, J.

Application U/S 482. No. 2793 of 2023

Pankaj Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Ram Kinkar Upadhyay

Counsel for the Opposite Parties:
G.A.

Criminal Law- Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code1860-Sections 376 -The Protection of
Children from Sexual Offences Act, 2012Sections 3 & 4-Offence of rape is not
private in nature rather it has a serious
adverse impact on society-No justification
to quash the proceedings against the
applicant
on
the
basis
of
alleged
compromise between the accused and the
victim.

Application U/s 482 CrPC disposed off. (E15)

List of Cases cited:

1. St. of Haryana Vs Bhajan Lal, 1992 Supp (1)
SCC 335

2. Rathish Babu Unnikrishnan Vs St. (NCT of
Delhi), 2022 SCC OnLine SC 513
3. Satish Kumar Jatav Vs St. of U.P., 2022
LiveLaw (SC) 488

4. Ramveer Upadhyay Vs St. of U.P., AIR 2022
SC 2044

5. Narinder Singh & ors. Vs St. of Punjab & anr.
(2014) 6 SCC 466

6. Daxaben Vs St. of Guj. & ors. 2022 SCC
OnLine SC 936

7. (Om Prakash Vs St. of U.P. & anr. -
Application U/s 482 No.8514 of 2023)

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Sri Jagendra, Advocate has put in
appearance on behalf of opposite party
No.2 by filing his vakalatnama in Court
today, which is taken on record.

2. Counter affidavit filed today by the
learned counsel for opposite party No.2 is
also taken on record.

3. Heard Sri Ram Kinkar Upadhyay,
learned counsel for the applicant, Sri Alok
Saran, Advocate assisted by Sri Himanshu
Suryavanshi, learned A.G.A. for the State,
Sri Jagendra, learned counsel for opposite
party No.2 and perused the entire record.

4. The instant application under
Section 482 Cr.P.C. has bee filed by the
accused/ applicant for quashing the entire
criminal proceedings of Sessions Trial
No.743 of 2019 (State vs. Pankaj) as well
as charge sheet dated 12.11.2019 and the
summoning order dated 06.12.2019 passed
by the learned Additional District Judge-I/
Special Judge POCSO Act, Sultanpur
arising out of Case Crime No.0447 of 2019,
under Sections 363, 366, 376, 506 I.P.C. &
Sections 3/4 POCSO Act, Police Station
Jaisinghpur, District Sultnapur, pending in
704 INDIAN LAW REPORTS ALLAHABAD SERIES
the court of learned Special Judge POCSO
Act/ Additional Sessions Judge, Court
No.1, Sultanpur.

5. Learned counsel for the applicant
has submitted that, in fact, a false first
information report came to be lodged
against the accused/ applicant by the first
informant, who is the father of the victim.
The accused/ applicant is innocent who has
been falsely implicated in this case.

6. His further submission is that the
victim, in her statement recorded under
Section 161 Cr.P.C., has not supported the
prosecution
case.
However,
in
her
statement recorded under Section 164
Cr.P.C., the victim levelled the allegation
of rape upon the present accused/ appellant
also.

7. His next submission is that, in fact,
presently, the accused/ applicant and the
victim have married and are living happily
together as husband and wife. Therefore,
the impugned criminal proceeding deserves
to be quashed.

8. His further submission is that
having regard to the fact that the accused/
applicant and the victim are living together
as husband and wife, therefore, no useful
purpose would be served by keeping the
impugned criminal proceeding pending
against the accused/ applicant.

9. Per contra, though, the learned
counsel for opposite party No.2 has not
opposed the prayer, however, learned
A.G.A. for the State has vehemently
opposed the prayer by submitting that
Protection
of
Children
from
Sexual
Offences Act, 2012 has been enacted by the
Legislature that it was formulated to
effectively address the heinous crimes of
sexual abuse and sexual exploitation of
children. This act was introduced to
provide for the protection of children from
the offences of sexual assault, sexual
harassment, etc. This act also provides for
safeguarding the interests of the child at
every stage of the judicial process by
incorporating child-friendly mechanisms
for reporting, recording of evidence,
investigation and speedy trial of offences
through designated Special Courts.

10. His further submission is that the
alleged marriage between the applicant and
the victim is not legal in the eye of law
insofar as the annexure.4 is nothing but an
agreement to marriage, which has no legal
sanctity.

11. Learned A.G.A. for the State has
also submitted that the victim was a child
on the date of occurrence. Therefore, no
compromise between such victim and the
accused is permissible in law. Therefore,
the present application is misconceived,
which liable to be dismissed.

12. In State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 the Hon'ble
Supreme Court in paragraph no.102 has
held as under:-

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
4 All. Pankaj Yadav Vs. State of U.P. & Ors.
705
secure the ends of justice, though it may not
be possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

(1) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground for proceeding against the accused.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the Act concerned (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

13. The Hon'ble Supreme Court in the
case of Rathish Babu Unnikrishnan v.
State (NCT of Delhi), 2022 SCC OnLine
SC 513 in para nos.16, 17 and 18 has held
as under:-

"16. The proposition of law as set
out above makes it abundantly clear that
the Court should be slow to grant the relief
of quashing a complaint at a pre-trial
stage, when the factual controversy is in
the
realm
of
possibility
particularly
because of the legal presumption, as in this
matter. What is also of note is that the
factual defence without having to adduce
any
evidence
need
to
be
of
an
unimpeachable quality, so as to altogether
disprove the allegations made in the
complaint.

17. The consequences of scuttling
the criminal process at a pre-trial stage
can be grave and irreparable. Quashing
proceedings at preliminary stages will
result in finality without the parties having
had an opportunity to adduce evidence and
the consequence then is that the proper
706 INDIAN LAW REPORTS ALLAHABAD SERIES
forum i.e., the trial Court is ousted from
weighing the material evidence. If this is
allowed, the accused may be given an unmerited advantage in the criminal process.
Also because of the legal presumption,
when the cheque and the signature are not
disputed by the appellant, the balance of
convenience at this stage is in favour of the
complainant/prosecution, as the accused
will have due opportunity to adduce
defence evidence during the trial, to rebut
the presumption.

18. Situated thus, to non-suit the
complainant, at the stage of the summoning
order, when the factual controversy is yet
to be canvassed and considered by the trial
court will not in our opinion be judicious.
Based upon a prima facie impression, an
element of criminality cannot entirely be
ruled out here subject to the determination
by the trial Court. Therefore, when the
proceedings are at a nascent stage,
scuttling of the criminal process is not
merited."

14. It is no doubt true that the power
of quashing of criminal proceedings should
be exercised very sparingly and with
circumspection and that too in rarest of the
rare cases and it was not justified for the
Court in embarking upon an enquiry as to
the reliability or genuineness or otherwise
of the allegations made in the FIR or the
complaint and that the inherent powers do
not confer any arbitrary jurisdiction on the
Court to act according to its whims and
fancies.

15. Hon'ble Supreme Court in the case
of Satish Kumar Jatav vs. State of U.P.,
2022 LiveLaw (SC) 488 has held that the
ground that "no useful purpose will be served
by prolonging the proceedings of the case"
cannot be a good ground and/or a ground at
all to quash the criminal proceedings when a
clear case was made out for the offence
alleged. Likewise in Ramveer Upadhyay vs.
State of U.P., AIR 2022 SC 2044 the
Hon'ble Supreme Court held that the
jurisdiction under Section 482 Cr.P.C. is not
to be exercised for asking. In exercise of
power under Section 482 of the Cr.P.C., the
Court does not examine the correctness of the
allegations in a complaint/F.I.R. except in
exceptionally rare cases where it is patently
clear that the allegations are frivolous or do
not disclose any offence. Entertaining a
petition under Section 482 Cr.P.C. at an
interlocutory stage itself might ultimately
result in miscarriage of justice.

16. Adverting to the facts of the case at
hand, this Court is able to notice that the
Hon'ble Supreme Court in Narinder Singh
and others vs. State of Punjab and another
reported in (2014) 6 SCC 466, has
specifically held that the matter under Section
376 I.P.C. is also such an offence, which,
though committed in respect of a particular
victim, cannot be termed to be a private
dispute between the parties. It has serious
adverse societal effect. Therefore, any
proceeding
on
the
basis
of
alleged
compromise of the accused viz-a-viz the
victim cannot be quashed. This principal of
law came to be reiterated recently in the
judgment of the Hon'ble Supreme Court in
Daxaben vs. State of Gujarat and others
reported in 2022 SCC OnLine SC 936
wherein the Hon'ble Supreme Court in
Paragraphs No.34, 38, 47 and 49 has held as
under:-

"34. In Inder Mohan Goswami v.
State of Uttaranchal, (2007) 12 SCC 1, this
Court observed:?

"46. The court must ensure that
criminal prosecution is not used as an
4 All. Pankaj Yadav Vs. State of U.P. & Ors.
707
instrument of harassment or for seeking
private vendetta or with an ulterior motive
to pressurise the accused. On analysis of
the aforementioned cases, we are of the
opinion that it is neither possible nor
desirable to lay down an inflexible rule that
would govern the exercise of inherent
jurisdiction. Inherent jurisdiction of the
High Courts under Section 482 CrPC
though wide has to be exercised sparingly,
carefully and with caution and only when it
is justified by the tests specifically laid
down in the statute itself and in the
aforementioned cases. In view of the settled
legal position, the impugned judgment
cannot be sustained."

38. However, before exercising its
power under Section 482 of the Cr.P.C. to
quash an FIR, criminal complaint and/or
criminal proceedings, the High Court, as
observed above, has to be circumspect and
have due regard to the nature and gravity of
the offence. Heinous or serious crimes,
which are not private in nature and have a
serious impact on society cannot be quashed
on the basis of a compromise between the
offender and the complainant and/or the
victim. Crimes like murder, rape, burglary,
dacoity and even abetment to commit
suicide are neither private nor civil in
nature. Such crimes are against the society.
In no circumstances can prosecution be
quashed on compromise, when the offence
is serious and grave and falls within the
ambit of crime against society.

47. In State of Madhya Pradesh v.
Laxmi Narayan, (2019) 5 SCC 688, a
three-Judge Bench discussed the earlier
judgments of this Court and laid down the
following principles:?

"15. Considering the law on the
point and the other decisions of this Court
on the point, referred to hereinabove, it is
observed and held as under:

15.1. That the power conferred
under Section 482 of the Code to quash the
criminal
proceedings
for
the
noncompoundable 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;

15.4. Offences under Section 307
IPC and the Arms Act, etc. would fall in the
category of heinous and serious offences
and therefore are to be treated as crime
against the society and not against the
individual
alone,
and
therefore,
the
criminal proceedings for the offence under
Section 307 IPC and/or the Arms Act, etc.
which have a serious impact on the society
cannot be quashed in exercise of powers
under Section 482 of the Code, on the
ground that the parties have resolved their
708 INDIAN LAW REPORTS ALLAHABAD SERIES
entire
dispute
amongst
themselves.
However, the High Court would not rest its
decision merely because there is a mention
of Section 307 IPC in the FIR or the charge
is framed under this provision. It would be
open to the High Court to examine as to
whether incorporation of Section 307 IPC
is there for the sake of it or the prosecution
has collected sufficient evidence, which if
proved, would lead to framing the charge
under Section 307 IPC. For this purpose, it
would be open to the High Court to go by
the nature of injury sustained, whether such
injury is inflicted on the vital/delicate parts
of the body, nature of weapons used, etc.
However, such an exercise by the High
Court would be permissible only after the
evidence is collected after investigation and
the charge-sheet is filed/charge is framed
and/or during the trial. Such exercise is not
permissible when the matter is still under
investigation.
Therefore,
the
ultimate
conclusion in paras 29.6 and 29.7 of the
decision of this Court in Narinder Singh
[(2014) 6 SCC 466 : (2014) 3 SCC (Cri)
54] should be read harmoniously and to be
read as a whole and in the circumstances
stated hereinabove;

15.5. While exercising the power
under Section 482 of the Code to quash the
criminal
proceedings
in
respect
of
noncompoundable offences, which are
private in nature and do not have a serious
impact on society, on the ground that there
is a settlement/compromise between the
victim and the offender, the High Court is
required to consider the antecedents of the
accused; the conduct of the accused,
namely,
whether
the
accused
was
absconding and why he was absconding,
how he had managed with the complainant
to enter into a compromise, etc."

(emphasis supplied)

49. In exercise of power under
Section 482 of the Cr.P.C., the Court does
not examine the correctness of the
allegation in the complaint except in
exceptionally rare cases where it is
patently clear that the allegations are
frivolous or do not disclose any offence."

17. Recently, a coordinate Bench of
this Court in Application U/s 482 No.8514
of 2023 titled as Om Prakash vs. State of
U.P. and another, has also held that the
criminal proceedings under Section 376
I.P.C. and POCSO Act cannot be quashed
on the basis of compromise entered into
between the accused and the victim.

18. In view of the aforesaid settled
law, this Court has keenly considered the
rival submissions and has perused the
entire record of this case. The submissions
made by the applicant's learned counsel
undoubtedly call for adjudication on pure
questions of fact which may be adequately
adjudicated upon only by the trial court and
while doing so even the submissions made
on points of law can also be more
appropriately gone into by the trial court in
this case. This Court does not deem it
proper, and therefore cannot be persuaded
to have a pre-trial before the actual trial
begins. A threadbare discussion of various
facts and circumstances, as they emerge
from the allegations made against the
accused, is being purposely avoided by the
Court for the reason, lest the same might
cause any prejudice to either side during
trial. The offence of rape is not an offence
which is private in nature; rather it has a
serious
adverse
impact
on
society.
Therefore, this Court does not find any
justification to quash the proceedings
against the applicant arising out of Case
Crime No.0447 of 2019, under Sections
363, 366, 376, 506 I.P.C. & Sections 3/4
4 All. Smt. Hasina Khatoon Vs. State of U.P. & Anr.
709
POCSO Act, Police Station Jaisinghpur,
District Sultanpur on the basis of alleged
compromise
between
the
accused/
applicant and the victim as the case does
not fall in any of the categories
recognized by the Hon'ble Supreme Court
in Bhajan Lal's case (supra), Rathish
Babu Unnikrishnan's case (supra),
Satish Kumar Jatav's case (supra),
Ramveer Upadhyay's case (supra),
Narinder Singh's case (supra) and
Daxaben's case (supra), which may
justify their quashing.

19. However, it is needless to mention
that, in case, the present accused/ applicant
seeks anticipatory bail/ bail before the
learned court below concerned, the same
shall be disposed of by the learned court
below concerned with utmost expedition
having regard to the facts of this case and
in accordance with settled law.

20. With the aforesaid observations/
directions, the instant application under
Section 482 Cr.P.C. stands disposed of.
----------
(2023) 4 ILRA 709
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482. No. 7721 of 2023

Smt. Hasina Khatoon ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Akshaya Kumar

Counsel for the Opposite Parties:
G.A.
Criminal Law- The Protection of Women
from Domestic Violence Act-2005-Sections
12, 23, 31 & 32 - Code of Criminal
Procedure,
1973-Section
300-Applicant
along with her handicapped son was
thrown out of her domestic unit
-
Proceedings under Section- 12 of the D.V
Act initiated- Interim maintenance of
Rs.8,000/- per month awarded-Opp. Party
no.2 declined to adhere to the directions
of executing court for the recovery of
Rs.2.64 lacs and consequently was sent
behind the bars for 30 days-Subsequent
application u/s 31 moved for issuance of
"fresh recovery warrants" rejected by the
trail court taking recourse of Sec 300
CrPC-Reasoning adopted by the court
below is palpably myopic and puerile-
Impugned order is per se absurd and total
non-application of correct law- Exercise of
power u/s 31 of the Domestic Violence Act
is a mode of enforcement of the alleged
protection orders u/s 18 of the Act and it
is
distinguished
from
the
mode
of
satisfaction and the liability which can
only be made by means of the an actual
payment
-Result-Impugned
order
quashed-(Para 3 to 17)

Application U/s 482 CrPC disposed off. (E-15)

List of Cases cited:

1. Smt. Kuldip Kaur Vs Surender Singh & anr.,
1989 SCC (1) 405

2. Shantha @ Ushadevi & anr. Vs B.G.
Shivananjappa, (2005) 4 SCC 468

3. Poongodi & anr. Vs Thangavel, (2013) 10
SCC 618

(Delivered by Hon'ble Rahul Chaturvedi, J.)

(1). Heard Shri Akshay Kumar,
learned counsel for applicant and learned
A.G.A. for the State of UP. Perused the
record.

(2). Extraordinary powers of this
Court is being invoked by the applicant u/s