XYZversusTHE STATE OF GUJARAT & ANR.

                 [2024] 11 S.C.R. 792 : 2024 INSC 869

                                  XYZ
                                    v.
                       The State of Gujarat & Anr.
                     (Criminal Appeal No. 4463 of 2024)
                               5 November 2024
           [Abhay S. Oka* and Augustine George Masih, JJ.]


                            Issue for Consideration
       Whether criminal proceedings for non-compoundable offences can
       be quashed on the ground of settlement.

                                   Headnotes†
       Criminal law – Quashing of criminal proceedings for
       non-compoundable offences by High Court under Section 482
       Cr.P.C. or Article 226 of the Constitution of India on the ground
       of settlement – Advisable to procure presence of victim either
       personally or through video conferencing:
       Held: 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 quashing of 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. [Para 7]

       Affidavit by illiterate person:
       Held: When illiterate persons affirm such affidavits for settlement
       by putting their thumb impressions, usually, the affidavit must bear

* Author
[2024] 11 S.C.R.                                                            793

                     XYZ v. The State of Gujarat & Anr.


     an endorsement that the contents of the affidavit were explained
     to the person affirming the same. [Para 7]

     Criminal law – Procedure to be adopted by High Court for
     quashing criminal proceedings on the ground of settlement:
     Held: The Complainant may 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 victim and the accused and whether
     the affidavits were affirmed after explaining the contents thereof
     to the victim – If the High Court finds that there was, in fact, a
     settlement arrived between the victim and the accused, 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. [Paras 13, 14]

                                List of Acts
     Criminal Procedure Code, 1973; Penal Code, 1860.

                             List of Keywords
     Quashing of non-compoundable offences; Quashing on the ground
     of settlement.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     4463 of 2024
     From the Judgment and Order dated 29.09.2023 of the High Court
     of Gujarat at Ahmedabad in CRMA No. 15041 of 2023

                         Appearances for Parties
     Ms. Indira Jaising, Sr. Adv., Paras Nath Singh, Rohin Bhatt, Sadeeq
     UR Rahman, Advs. for the Appellant.
     Ms. Ruchi Kohli, Rakesh Khanna, Sr. Advs., Ms. Swati Ghildiyal,
     Ms. Devyani Bhatt, Ms. Abhipsa Mohanty, Ms. Shrishti Mishra,
     Rakesh Malhotra, Ms. Savita Singh, Kushal Malhotra, Advs. for
     the Respondents.
794                                                           [2024] 11 S.C.R.

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                  Judgment / Order of the Supreme Court

                                   Judgment

       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), 3(1)(w) and
       3(2)(5) of the Scheduled Castes and Scheduled 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, 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
[2024] 11 S.C.R.                                                         795

                     XYZ v. The State of Gujarat & Anr.


           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;
     (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 out that copies of the Aadhar cards were annexed to the
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       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
       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,
[2024] 11 S.C.R.                                                         797

                     XYZ v. The State of Gujarat & Anr.


     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. 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.
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
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       shall remain present before the High 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.
16. The Appeal is partly allowed on the above terms.
17. Pending application(s), if any, shall stand disposed of.

       Result of the case: Appeal partly allowed.



       †
           Headnotes prepared by: Vidhi Thaker, Hony. Associate Editor
                                   (Verified by: Kanu Agrawal, Adv.)