The conduct of a trial judge as he “assisted” a rape accused was questioned by the Delhi High Court as this is a heinous crime for which there can be no monetary settlement
By Dr Swati Jindal Garg
Proving that justice should not only be done, but also seen to be done, the Delhi High Court recently expressed concern over the conduct of a trial court judge for allegedly “suggesting” and “assisting” a man accused of rape to settle the matter during the recording of prosecution evidence.
The High Court’s observations came during the hearing of a plea by the accused seeking quashing of the FIR registered against him for alleged rape in 2020, on the ground that the matter had been settled and compromised. The Court thereafter directed that the case be tried by another judge to ensure that justice is done.
Justice Swarana Kanta Sharma, who was hearing the matter, said: “This Court is disturbed by the fact that it was the learned Trial Court Judge, as stated at bar as well as in the petition which is accompanied by an affidavit regarding the truthfulness of averments made in the petition, who had enquired from the victim if she wished to enter into a compromise with the accused. The Settlement Agreement in question also mentions the same, and in fact, the Agreement also records that the parties have arrived at an agreement with the aid and assistance of the learned Trial Court.”
She also observed that once the trial court had framed charges against the accused and the prosecution evidence was recorded, there was no comprehensible reason why the trial court judge would have asked the woman to settle the matter involving a heinous offence like rape. The High Court further recorded that the woman had also stated before it that she had entered into a settlement agreement only at the asking of the trial court judge and this was mentioned in the agreement itself “which is duly notarized”. Justice Sharma added: “Therefore, this Court expresses concern over the conduct of the learned Trial Court Judge, if it is true, that the Trial Judge had suggested and assisted the accused and the victim, in a case under Section 376 of IPC, to settle the matter, while the same Court was recording the prosecution evidence.”
The petition filed before the Court clearly disclosed that the man had agreed to pay Rs 3.5 lakh to the woman if the FIR was quashed, wherein she had agreed that “whatever happened between her and the accused had happened out of her free will and it was a consensual relationship”. The agreement filed along with the petition also stated that the woman had agreed that she had deposed against the accused before the trial court due to a “misunderstanding”.
Taking note of the fact that the settlement seemed to be based solely on the exchange of money, the judge said: “Money, it seems, is to be exchanged for getting a quietus to the present criminal proceedings for offence of rape—a proposition that is not only immoral but also strikes at the very core of our criminal justice system.”
It cannot be denied that rape is not only a heinous violation of a woman’s bodily autonomy, but also an offence against society at large. Taking consideration of these facts, the High Court remarked that allowing a settlement like in the present case would amount to “trivializing the sufferings of a rape victim, and reducing her anguish to a mere transaction”.
The High Court further said that if the woman’s prior statements before the police, the magistrate and the trial court are based on a misunderstanding arising from a consensual relationship as has been stated in the settlement agreement, then the “need for monetary compensation to settle the matter becomes questionable”.
The High Court also took note of the fact that the woman had made specific allegations in her testimony against the accused such as he had intoxicated her and then established physical relations with her without her consent. He had also taken inappropriate photographs and videos of her and threatened her. In the light of these submissions made by her, it was quite strange that the matter is claimed to have been settled on the grounds that it was a “misunderstanding”.
Constitutional courts have, in the past too, expressed concern over criminal cases being settled with money. The apex court had in a case filed before it held that an FIR lodged for abetment of suicide cannot be quashed on the basis of any financial settlement with the informant, surviving spouse, parents, children, guardians, care-givers or anyone else, as it would set a dangerous precedent where complaints would be lodged to extract money.
This statement was given by a bench of Justices Indira Banerjee and V Ramasubramanian who said that 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 or the victim.
The bench said: “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.” In this case, the apex court had allowed an appeal filed by a woman called Daxaben against the Gujarat High Court’s order allowing quashing of an FIR related to the suicide of her husband, Shailesh Kumar Chimanbhai Patel. The FIR was lodged by a man, claiming to be a cousin of the deceased, who took the extreme step after being cheated of over Rs 2.35 crore by the accused.
The Supreme Court clarified that an informant had no right in law to withdraw the complaint of a non-compoundable offence of a grave, serious or heinous nature, which impacts society. “In criminal jurisprudence, the position of the complainant is only that of the informant. Once an FIR and/or criminal complaint is lodged and a criminal case is started by the State, it becomes a matter between the State and the accused. The State has a duty to ensure that law and order is maintained in society. It is for the State to prosecute offenders,” the bench said.
“In case of grave and serious non-compoundable offences which impact society, the informant and/or complainant only has the right of hearing, to the extent of ensuring that justice is done by conviction and punishment of the offender,” the bench added. The Court further said the criminal proceeding cannot be nipped in the bud by the exercise of jurisdiction (of the High Court) under Section 482 of the Criminal Procedure Code only because there is a settlement. In this case, the monetary settlement was between the accused and the complainant and other relatives of the deceased to the exclusion of the widow of the deceased.
It needs to be clarified that in compoundable offences, parties to the dispute may enter into a compromise or settlement where the accused provides an amount in the form of consideration to the aggrieved person. However, the same rule does not apply in the case of non-compoundable offences. Compoundable offences as given in Section 320 of the Criminal Procedure Code are less serious and settled only in good faith. Non-compoundable offences, however, have to go through the whole trial to be quashed. They are of a more serious and grievous nature, which affect society as a whole and not just an individual. The reason to not allow such offences to be compounded is that it would set a bad example in society. Non-compoundable offences are against the public policy and thus settlement is not allowed by a regular court in such offences. Such offences usually include voluntarily causing grievous hurt, hurt by dangerous weapon, dishonest misappropriation, kidnapping or abducting to murder, etc.
The Supreme Court in various judgments has held that in cases when the offence is civil, where the wrong is personal and the matter is resolved between the parties, proceedings can be quashed by the High Court. However, the High Court shall exercise the power under Section 482 to quash any criminal offences which are not in the list of compoundable offences cautiously and with due care and scrutiny. Judges have a meticulous job to check all the necessary parameters and strike a balance between which matters are of interest to be compounded or not.
The apex court has, in fact, set guidelines based on which the High Courts can exercise the power under Section 482, of Criminal Procedure Code. The guidelines are as follows:
- Nature of offences
The High Court is allowed to use its powers under Section 482 of the CrPC to quash criminal proceedings of non-compoundable nature if the offences involved are predominantly of a civil and commercial nature.
- Serious Offences
The High Court cannot quash offences of a serious and heinous nature which have an impact on society under Section 482, CrPC.
- Section 307 of IPC
High Courts can quash offences under Section 307 that are categorised as heinous and serious offences and are against society, but only when there is enough evidence to prove it on various parameters. The collected evidence shall be accompanied by the charge sheet filed or the charges framed and/or during the trial, i.e., not permissible when the matter is under investigation.
- Special Statues
Criminal offences registered under various statutes or when the offences are committed by a public servant while in service shall not be quashed by the High Court based on compromise.
- Antecedent/Conduct
Courts need to consider the antecedent or conduct of the accused while considering the compromise between the parties under Section 482 of the CrPC in case of non-compoundable criminal offences when the offence before the High Court is of a private nature.
The stance taken by the Delhi High Court in the present case proves that High Courts are proving to be beacons of light for hapless litigants who are prone to various pressures. The law is indeed taking its due course.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi