Case Note & Summary
The applicant, Bharatkumar S. Gupta, filed an application under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of a criminal case registered against him under Section 377 of the Indian Penal Code and other sections. The FIR was lodged by the second respondent, Upendrakumar Chattu Gupta. The investigation was completed and a charge-sheet was filed. The applicant had previously filed a Criminal Writ Petition No.3858 of 2013 for quashing, which was withdrawn with liberty to raise contentions at the appropriate stage. The present application was based on an alleged settlement between the parties, evidenced by an affidavit dated 14 June 2016 filed by the second respondent. The applicant also sought to amend the application to challenge the constitutional validity of Section 377 IPC as violative of Article 20 of the Constitution. The court heard the parties and considered the submissions. The court noted that the offence under Section 377 IPC is non-compoundable and that the mere existence of a settlement does not automatically warrant quashing under Section 482 CrPC, especially when there is a real possibility of conviction. The court also refused to allow the amendment to challenge the constitutionality of Section 377 IPC, as the issue was pending before the Supreme Court and the Delhi High Court's decision declaring the section unconstitutional had been stayed. The Supreme Court in Suresh Kumar Koushal v. Naz Foundation had upheld the constitutional validity of Section 377 IPC. Consequently, the court dismissed the application, holding that no case was made out for quashing the proceedings.
Headnote
A) Criminal Procedure - Quashing of FIR - Section 482 CrPC - Non-compoundable offences - Settlement between parties - The applicant sought quashing of FIR under Section 377 IPC on the basis of a settlement with the complainant. The court held that the offence under Section 377 IPC is non-compoundable and the mere existence of a settlement does not warrant quashing under Section 482 CrPC, especially when the charge-sheet has been filed and there is a real possibility of conviction. (Paras 2-4) B) Constitutional Law - Validity of Section 377 IPC - Articles 14, 15, 20, 21 - The applicant sought to amend the petition to challenge the constitutional validity of Section 377 IPC. The court refused to allow the amendment as the issue was pending before the Supreme Court and the Delhi High Court's decision declaring Section 377 unconstitutional had been stayed. The court noted that the binding precedent of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation upheld the constitutional validity of Section 377 IPC. (Paras 5-6) C) Criminal Procedure - Quashing of FIR - Section 482 CrPC - Real possibility of conviction - The court held that even if there is a settlement, the power under Section 482 CrPC should not be exercised if there is a real possibility of conviction. Since the charge-sheet had been filed and the offence was serious, the court declined to quash the proceedings. (Para 4)
Issue of Consideration
Whether the High Court can quash criminal proceedings under Section 482 CrPC for offences under Section 377 IPC based on a settlement between the parties, and whether Section 377 IPC can be declared unconstitutional in this application.
Final Decision
Application dismissed. No case made out for quashing the proceedings. Amendment to challenge constitutionality of Section 377 IPC not allowed.
Law Points
- Section 482 CrPC cannot be used to quash non-compoundable offences based on settlement alone
- Section 377 IPC is not unconstitutional as per binding Supreme Court precedent
- Amendment to challenge constitutionality not allowed at this stage
