Compounding in Rape Cases – Removing the Confusion (Part II)

The Correct Position of Law

In the previous post, we went through a series of decisions that were allowing compounding in rape cases on the basis of the fact that either accused has married the victim or offered to marry the victim. These line of cases were opening a floodgate for the wrongdoers where they were getting successful in their agenda in an indirect manner. In this post, I discuss the other line of cases which in my opinion reflects the correct position of law.

In State of M.P. vs. Bala @ Balaram[i], the Supreme Court held that the long pendency of the criminal trial or offer of the rapist to marry the victim are no relevant reasons for exercising the discretionary power under the proviso of Section 376(2) IPC to reduce the sentence on grounds of special and adequate reasons. The punishment provided in IPC is a legislative recognition of social needs. The legislative intent of deterrence imbibed in punishments should be respected by courts.

Supreme Court in Gian Singh v. State of Punjab[ii], held that:

“The criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. While in cases where nature of offence is heinous /serious like murder, rape and dacoity, the criminal proceedings cannot be quashed even if they are settled by the accused and the victim, by invoking the jurisdiction of High Court under Section 482 CrPC.”

The decision in Gian Singh was subsequently followed in the decision reported in Gold Quest International Private Ltd v. The State of Tamil Nadu And Ors[iii], wherein the Supreme Court reiterated the position in law:

“We are of the view in the disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 Cr.P.C. read with Article 226 of the Constitution. However, the same would not apply where the nature of offence is very serious like rape, murder, robbery, dacoity etc.

Subsequently, in Narinder Singh v. State of Punjab[iv], the Supreme Court held that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of the society that the offender should be punished to deter others from committing a similar crime.

In Shimbhu and Another v. State of Haryana[v] wherein, a three-Judge Bench of Apex Court has ruled that:-

“A compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC.”

Baldev Singh was considered by the three-Judge Bench in Shimbhu and it was stated that Baldev Singh can’t be cited as binding precedent and should be confined to its own facts. (To know about Baldev Singh’s Case, visit the first part of the series by clicking on the link mentioned on the top)

In State of Madhya Pradesh v Madan Lal[vi], it was held by the Apex Court that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. This judgement is one of the landmark judgement of Apex Court on the question of compounding of rape cases. It is worthy to note that this judgement came after Madras High Court’s Order where it allowed mediation in a rape case involving a minor victim.

The bench of Justices Dipak Misra and Prafulla C. Pant observed that:

“These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct.”

Regarding the cases in which the rape accused marries the victim and the Court compounds the offence, the bench observed:

“We are compelled to say, such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.”

Further in para 19 court held while placing reliance on Shimbhu, the judgments in Baldev Singh and Ravindra have to be confined to the facts of the said cases and are not to be regarded as binding precedents.

In State of T.N. v. R. Vasanthi Stanley[vii], Apex Court duly observed that the power conferred under Section 482 of CrPC is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc.

In Parbathhai Aahir v. State of Gujarat[viii], it was held that scope of power of the High Court under Section 482 CrPC to quash the criminal proceedings on the basis of settlement in a heinous or serious offence is limited.

The Delhi High Court in Ananda D.V. vs State of NCT Delhi[ix] held that:

“Rape not only causes serious injury to a woman’s body, her honour and dignity and even if such an offence is settled by the offender and victim, this offence being not private in nature but has a serious impact on the society and, therefore, cannot be quashed.”

The most recent case is Ramphal vs State of Haryana[x], where Supreme Court a few days after the decision in Saju PR case,held that it is imperative to emphasise that we do not accept such compromise in matters relating to the offence of rape and similar cases of sexual assault. Hence the aforesaid compromise is of no relevance in deciding this matter.Moreover, the court directed the convict to pay compensation to victim under Section 357(3) of CrPC.

Rape is a non-compoundable offence and it is an offence against society, and is not a matter to be left for the parties to compromise and settle. Since the court cannot always be assured that the consent given by the victim…is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise,” said a Bench of Chief Justice P. Sathasivam and Justices Ranjana Desai and Ranjan Gogoi.

Conclusion

The conflicting judgements of apex court especially in November 2019 without taking into account the position of law have created an atmosphere of uncertainty and this uncertainty is giving the High Courts room for quashing rape cases. One thing is common throughout the decisions which have allowed compounding is that accused either offered to marry the victim or already married the victim and court in interests of justice as well in future interests of victim allowed compounding, as not allowing compounding could have a detrimental effect on the entire life of the victim. It is high time now that the Supreme Court should suo motu clear the air of confusion

[i] (2005) 8 SCC 1

[ii] (2012) 10 SCC 303

[iii] CIVIL APPEAL NO.8546 of 2014

[iv] Criminal Appeal No. 686/2014

[v] (2014) 13 SCC 318

[vi] Criminal Appeal No. 231 of 2015

[vii] (2016) 1 SCC 376

[viii] 2017 SCC Online SC 1189

[ix] 2019 SCC OnLine Del 11163

[x] Criminal Appeal No. 438 and 439 of 2011. Decided on November 27 2019.