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________________________________________________________________ vs State Of Himachal Pradesh And … on 7 November, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CrMMO No. 654 of 2019

.
Decided on: November 7, 2019

_
Rajesh and others ………Petitioners

Versus

State of Himachal Pradesh and another …Respondents
_
Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
_
For the petitioners:
r Mr. Sandeep Datta, Advocate.

For the respondents: M/s Sudhir Bhatnagar and Sanjeev Sood,

Additional Advocates General with Mr.
Kunal Thakur, Deputy Advocate General,
for respondents No.1 and 2/State.

Mr. Raj Kumar Selwan, Advocate, for

respondent No.3.

Sandeep Sharma, J. (Oral)

By way of present petition filed under S.482 CrPC,

prayer has been made on behalf of the petitioners for quashing

and setting aside FIR No. 10, dated 2.2.2019, under Ss. 363, 366,

186, 427 and 34 IPC, S.181 of the Motor Vehicles Act and S.17 of

the Protection of Children from Sexual Offences Act, registered at

Police Station, Chopal, District Shimla, Himachal Pradesh and

consequent proceedings pending before learned Sessions Judge,

Whether reporters of the Local papers are allowed to see the judgment? .

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Shimla, on the basis of compromise entered into between the

parties.

.

2. Averments contained in the petition, which is duly

supported by an affidavit, reveal that the FIR sought to be

quashed in the instant proceedings, came to be lodged at the

behest of respondent No.3/complainant, who alleged that the on

5.1.2019, his two sons and one daughter had gone to Dharech to

their Mama’s (Maternal Uncle) house. He alleged that on

3.2.2019, he was informed telephonically that petitioner No.1

namely Rajesh, with an intention to solemnise marriage with his

daughter, had taken her away in a vehicle bearing registration

No. HP-85-0074. Complainant alleged that his daughter was

minor and was studying in 10th Class in Government Senior

Secondary School, Maraog, as such appropriate action be taken

against the persons, who are responsible for

kidnapping/abduction of his minor daughter. On the basis of

aforesaid complaint having been filed by respondent No.3, FIR

sought to be quashed in the instant proceedings, came to be

lodged against the petitioners under the aforesaid provisions of

law.

3. Police, after completion of investigation, filed report

under S.173 CrPC, in the court of learned Sessions Judge,

Shimla, which is pending adjudication. However, it appears that

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during the pendency of the proceedings before learned Sessions

Judge, petitioners and respondent No.3 have entered into a

.

compromise and filed an application under Ss.320/321 CrPC, for

withdrawal of prosecution against the accused. Before aforesaid

application could be decided, petitioners approached this Court

in the instant proceedings, praying therein to quash and set

aside the FIR in question as well as consequent proceedings

pending before learned Sessions Judge, Shimla.

4. On 1.11.2019, this Court having carefully perused

the averments contained in the petition, deemed it fit to cause

presence of respondent No.3, with a view to ascertain the

genuineness and correctness of the compromise entered into

between the parties. Pursuant to order dated 1.11.2019, parties

have come present, especially, respondent No.3, complainant, at

whose behest, FIR sought to be quashed came to be lodged. Mr.

Raj Kumar Selwan, Advocate has filed Power of Attorney on

behalf of respondent No.3, which is taken on record.

5. Respondent No.3, on oath, stated before this Court

that, he of his own volition and without there being any external

pressure, has entered into compromise with the petitioners,

whereby they have resolved to settle their dispute amicably inter

se them. He stated hat the FIR sought to be quashed in the

instant proceedings, came to be lodged due to some

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misunderstanding, as such, he shall have no objection, in case,

FIR as well as consequent proceedings pending before learned

.

Sessions Judge, Shimla, against the petitioners are ordered to be

quashed and set aside. He further stated that since nothing

wrong has been committed with his daughter by the petitioners,

he does not want to pursue the proceedings initiated at his

behest against them. His statement is taken on record.

6. Mr. Kunal Thakur, learned Deputy Advocate General

General, having heard statement of respondent No.3, fairly stated

that in view of the amicable settlement inter se parties, prayer

made in the petition may be accepted. He further stated that as

per record, victim-prosecutrix refused to undergo medical

examination, as such, no fruitful purpose would be served in

case FIR as well as consequent proceedings against the

petitioners are allowed to continue.

7. The question which now needs consideration is

whether FIR in question can be ordered to be quashed when

Hon’ble Apex Court in Narinder Singh and others versus State

of Punjab and another (2014)6 SCC 466 has specifically held

that power under S. 482 CrPC is not to be exercised in the cases

which involve 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.

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8. At this stage, it would be relevant take note of the

judgment passed by Hon’ble Apex Court in Narinder Singh

.

(supra), whereby the Hon’ble Apex Court has formulated

guidelines for accepting the settlement and quashing the

proceedings or refusing to accept the settlement with direction to

continue with the criminal proceedings. Perusal of judgment

referred to above clearly depicts that in para 29.1, Hon’ble Apex

Court has returned the findings that power conferred under

Section 482 of the Code 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 criminal proceedings

even in those cases which are not compoundable and where the

parties have settled the matter between themselves, however, this

power is to be exercised sparingly and with great caution. Para

Nos. 29 to 29.7 of the judgment are reproduced as under:-

“29. In view of the aforesaid discussion, we sum up and lay

down the following principles by which the High Court would
be guided in giving adequate treatment to the settlement
between the parties and exercising its power under Section
482 of the Code while accepting the settlement and quashing
the proceedings or refusing to accept the settlement with
direction to continue with the criminal proceedings:
29.1 Power conferred under Section 482 of the Code 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. However, this
power is to be exercised sparingly and with caution.

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29.2. When the parties have reached the settlement and on
that basis petition for quashing the criminal proceedings is
filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

.

(ii) to prevent abuse of the process of any Court.

While exercising the power under Section 482 Cr.P.C the High
Court is to form an opinion on either of the aforesaid two
objectives.

29.3. 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. Such
offences are not private in nature and have a serious impact
on society. Similarly, for offences alleged to have been
committed under special statute 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.

29.4. On the other, those criminal cases having
overwhelmingly and pre-dominantly civil character,

particularly those arising out of commercial transactions or
arising out of matrimonial relationship or family disputes
should be quashed when the parties have resolved their entire
disputes among themselves.

29.5. While exercising its powers, the High Court is to examine

as to whether the possibility of conviction is remote and bleak
and continuation of criminal cases would put the accused to
great oppression and prejudice and extreme injustice would be
caused to him by not quashing the criminal cases.

29.6. Offences under Section 307 IPC would fall in the
category of heinous and serious offences and therefore is to be

generally treated as crime against the society and not against
the individual alone. 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 proving 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/delegate parts of the body, nature of
weapons used etc. Medical report in respect of injuries
suffered by the victim can generally be the guiding factor. On
the basis of this prima facie analysis, the High Court can
examine as to whether there is a strong possibility of
conviction or the chances of conviction are remote and bleak.
In the former case it can refuse to accept the settlement and
quash the criminal proceedings whereas in the later case it

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would be permissible for the High Court to accept the plea
compounding the offence based on complete settlement
between the parties. At this stage, the Court can also be
swayed by the fact that the settlement between the parties is

.

going to result in harmony between them which may improve

their future relationship.

29.7. While deciding whether to exercise its power under
Section 482 of the Code or not, timings of settlement play a

crucial role. Those cases where the settlement is arrived at
immediately after the alleged commission of offence and the
matter is still under investigation, the High Court may be
liberal in accepting the settlement to quash the criminal
proceedings/investigation. It is because of the reason that at
this stage the investigation is still on and even the charge

sheet has not been filed. Likewise, those cases where the
charge is framed but the evidence is yet to start or the
evidence is still at infancy stage, the High Court can show
benevolence in exercising its powers favourably, but after

prima facie assessment of the circumstances/material
mentioned above. On the other hand, where the prosecution

evidence is almost complete or after the conclusion of the
evidence the matter is at the stage of argument, normally the
High Court should refrain from exercising its power under
Section 482 of the Code, as in such cases the trial court would
be in a position to decide the case finally on merits and to

come a conclusion as to whether the offence under Section
307 IPC is committed or not. Similarly, in those cases where
the conviction is already recorded by the trial court and the
matter is at the appellate stage before the High Court, mere

compromise between the parties would not be a ground to
accept the same resulting in acquittal of the offender who has

already been convicted by the trial court. Here charge is
proved under Section 307 IPC and conviction is already
recorded of a heinous crime and, therefore, there is no

question of sparing a convict found guilty of such a crime”.

9. Careful perusal of para 29.3 of the judgment suggests

that such a power is not to be exercised in the cases which

involve 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. Apart

from this, offences committed under special statute like the

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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. On the other hand, those criminal cases having

overwhelmingly and predominantly civil character, particularly

arising out of commercial transactions or arising out of

matrimonial relationship or family disputes may be quashed

when the parties have resolved their entire disputes among

themselves.

10. The Hon’ble Apex Court in case Gian Singh v. State

of Punjab and anr. (2012) 10 SCC 303 has held that power of

the High Court in quashing of the criminal proceedings or FIR or

complaint in exercise of its inherent power is distinct and

different from the power of a Criminal Court for compounding

offences under Section 320 Cr.PC. Even in the judgment passed

in Narinder Singh’s case, the Hon’ble Apex Court has held that

while exercising inherent power of quashment under Section 482

Cr.PC the Court must have due regard to the nature and gravity

of the crime and its social impact and it cautioned the Courts not

to exercise the power for quashing proceedings in heinous and

serious offences of mental depravity, murder, rape, dacoity etc.

However subsequently, the Hon’ble Apex Court in Dimpey Gujral

and Ors. vs. Union Territory through Administrator, UT,

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Chandigarh and Ors. (2013( 11 SCC 497 has also held as

under:-

.

“7. In certain decisions of this Court in view of the settlement
arrived at by the parties, this Court quashed the FIRs though
some of the offences were non-compoundable. A two Judges’
Bench of this court doubted the correctness of those decisions.

Learned Judges felt that in those decisions, this court had
permitted compounding of non-compoundable offences. The
said issue was, therefore, referred to a larger bench.

The larger Bench in Gian Singh v. State of Punjab (2012) 10

SCC 303 considered the relevant provisions of the Code and the
judgments of this court and concluded as under: (SCC pp. 342-
43, para 61)

61. The position that emerges from the above discussion can be
summarised thus: the power of the High Court in quashing a

criminal proceeding or FIR or complaint in exercise of its
inherent jurisdiction is distinct and different from the power

given to a criminal court for compounding the offences under
Section 320 of the Code. Inherent power is of wide plenitude
with no statutory limitation but it has to be exercised in accord
with the guideline engrafted in such power viz; (i) to secure the

ends of justice or (ii) to prevent abuse of the process of any
Court. In what cases power to quash the criminal proceeding or
complaint or F.I.R may be exercised where the offender and
victim have settled their dispute would depend on the facts and

circumstances of each case and no category can be prescribed.
However, before exercise of such power, the High Court must
have due regard to the nature and gravity of the crime. Heinous

and serious offences of mental depravity or offences like murder,
rape, dacoity, etc. cannot be fittingly quashed even though the
victim or victim’s family and the offender have settled the

dispute. Such offences are not private in nature and have
serious impact on society. Similarly, any compromise between
the victim and offender in relation to the offences under special
statutes like Prevention of Corruption Act or the offences
committed by public servants while working in that capacity etc;
cannot provide for any basis for quashing criminal proceedings
involving such offences. But 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. In this category of
cases, High Court may quash criminal proceedings if in its view,

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because of the compromise between the offender and victim, the
possibility of conviction is remote and bleak and continuation of
criminal case would put accused to great oppression and
prejudice and extreme injustice would be caused to him by not

.

quashing the criminal case despite full and complete settlement

and compromise with the victim. In other words, the High Court
must consider whether it would be unfair or contrary to the
interest of justice to continue with the criminal proceeding or

continuation of the criminal proceeding would tantamount to
abuse of process of law despite settlement and compromise
between the victim and wrongdoer and whether to secure the
ends of justice, it is appropriate that criminal case is put to an
end and if the answer to the above question(s) is in affirmative,
the High Court shall be well within its jurisdiction to quash the

criminal proceeding.” (emphasis supplied)

8. In the light of the above observations of this court in Gian
Singh, we feel that this is a case where the continuation of
criminal proceedings would tantamount to abuse of process of

law because the alleged offences are not heinous offences
showing extreme depravity nor are they against the society.

They are offences of a personal nature and burying them would
bring about peace and amity between the two sides. In the
circumstances of the case, FIR No. 163 dated 26.10.2006
registered under Section 147, 148, 149, 323, 307, 452 and 506
of the IPC at Police Station Sector 3, Chandigarh and all

consequential proceedings arising there from including the final
report presented under Section 173 of the Code and charges
framed by the trial Court are hereby quashed.”

11. Recently the Hon’ble Apex Court in its latest

judgment dated 4th October, 2017, titled as Parbatbhai Aahir @

Parbatbhai Bhimsinhbhai Karmur and others versus State of

Gujarat and Another, passed in Criminal Appeal No.1723 of

2017 arising out of SLP(Crl) No.9549 of 2016, reiterated the

principles/ parameters laid down in Narinder Singh’s case supra

for accepting the settlement and quashing the proceedings. It

would be profitable to reproduce para No. 13 to 15 of the

judgment herein:

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“13. The same principle was followed in Central Bureau of
Investigation v. Maninder Singh (2016)1 SCC 389 by a bench of
two learned Judges of this Court. In that case, the High Court had,
in the exercise of its inherent power under Section 482 quashed

.

proceedings under Sections 420, 467, 468 and 471 read with

Section 120-B of the Penal Code. While allowing the appeal filed by
the Central Bureau of Investigation Mr Justice Dipak Misra (as the
learned Chief Justice then was) observed that the case involved

allegations of forgery of documents to embezzle the funds of the
bank. In such a situation, the fact that the dispute had been
settled with the bank would not justify a recourse to thepower
under Section 482:

“…In economic offences Court must not only keep in view that
money has been paid to the bank which has been defrauded but

also the society at large. It is not a case of simple assault or a
theft of a trivial amount; but the offence with which we are
concerned is well planned and was committed with a deliberate
design with an eye of personal profit regardless of consequence

to the society at large. To quash the proceeding merely on the
ground that the accused has settled the amount with the bank

would be a misplaced sympathy. If the prosecution against the
economic offenders are not allowed to continue, the entire
community is aggrieved.”

14. In a subsequent decision in State of Tamil Nadu v R Vasanthi
Stanley (2016) 1 SCC 376, the court rejected the submission that

the first respondent was a woman “who was following the
command of her husband” and had signed certain documents
without being aware of the nature of the fraud which was being
perpetrated on the bank. Rejecting the submission, this Court held

that:

“… Lack of awareness, knowledge or intent is neither to be

considered nor accepted in economic offences. The submission
assiduously presented on gender leaves us unimpressed. An
offence under the criminal law is an offence and it does not

depend upon the gender of an accused. True it is, there are
certain provisions in Code of Criminal Procedure relating to
exercise of jurisdiction Under Section 437, etc. therein but that
altogether pertains to a different sphere. A person committing a
murder or getting involved in a financial scam or forgery of
documents, cannot claim discharge or acquittal on the ground of
her gender as that is neither constitutionally nor statutorily a
valid argument. The offence is gender neutral in this case. We
say no more on this score…”

“…A grave criminal offence or serious economic offence or for
that matter the offence that has the potentiality to create a dent
in the financial health of the institutions, is not to be quashed
on the ground that there is delay in trial or the principle that

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– 12 –

when the matter has been settled it should be quashed to avoid
the load on the system…”

15. The broad principles which emerge from the precedents on

.

the subject may be summarized in the following propositions:

(i) Section 482 preserves the inherent powers of the High Court
to prevent an abuse of the process of any court or to secure the
ends of justice. The provision does not confer new powers. It only
recognizes and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash
a First Information Report or a criminal proceeding on the
ground that a settlement has been arrived at between the
offender and the victim is not the same as the invocation of
jurisdiction for the purpose of compounding an offence. While

compounding an offence, the power of the court is governed by
the provisions of Section 320 of the Code of Criminal Procedure,
1973. The power to quash under Section 482 is attracted even if
the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or

complaint should be quashed in exercise of its jurisdiction under

Section 482, the High Court must evaluate whether the ends of
justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit
and plenitude it has to be exercised; (i) to secure the ends of
justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information
Report should be quashed on the ground that the offender and
victim have settled the dispute, revolves ultimately on the facts
and circumstances of each case and no exhaustive elaboration of

principles can be formulated;

vi) In the exercise of the power under Section 482 and while

dealing with a plea that the dispute has been settled, the High
Court must have due regard to the nature and gravity of the
offence. Heinous and serious offences involving mental depravity
or offences such as murder, rape and dacoity cannot

appropriately be quashed though the victim or the family of the
victim have settled the dispute. Such offences are, truly
speaking, not private in nature but have a serious impact upon
society. The decision to continue with the trial in such cases is
founded on the overriding element of public interest in
punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be
criminal cases which have an overwhelming or predominant
element of a civil dispute. They stand on a distinct footing in so
far as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from
commercial, financial, mercantile, partnership or similar
transactions with an essentially civil flavour may in appropriate

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– 13 –

situations fall for quashing where parties have settled the
dispute;

(ix) In such a case, the High Court may quash the criminal
proceeding if in view of the compromise between the disputants,

.

the possibility of a conviction is remote and the continuation of a

criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in
propositions (viii) and (ix) above. Economic offences involving the

financial and economic well-being of the state have implications
which lie beyond the domain of a mere dispute between private
disputants. The High Court would be justified in declining to
quash where the offender is involved in an activity akin to a
financial or economic fraud or misdemeanour. The consequences
of the act complained of upon the financial or economic system

will weigh in the balance.”

12. In the case at hand also, the offences alleged against

the petitioners do not involve offences of mental depravity or of

heinous nature like rape, dacoity or murder and as such, with a

view to maintain harmony and peace in the society, this court

deems it appropriate to quash the FIR as well as consequential

proceedings thereto, especially keeping in view the fact that

petitioners and respondent No.3 have compromised the matter

inter se them, in which case, the possibility of conviction is

remote and no fruitful purpose would be served in continuing

with the criminal proceedings.

13. Since the matter stands compromised between

respondent No.3 and petitioners, no fruitful purpose would be

served in case proceedings initiated at the behest of complainant

(respondent No.3) are allowed to continue. Moreover, respondent

No.3 is no more interested in carrying on with the criminal

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– 14 –

proceedings, as such, prayer made in the petition at hand can be

accepted.

.

14. Consequently, in view of the aforesaid discussion as

well as law laid down by the Hon’ble Apex Court (supra), FIR No.

10, dated 2.2.2019, under Ss. 363, 366, 186, 427 and 34 IPC,

S.181 of the Motor Vehicles Act and S.17 of the Protection of

Children from Sexual Offences Act, registered at Police Station,

Chopal, District Shimla, Himachal Pradesh and consequent

proceedings pending before learned Sessions Judge, Shimla, are

quashed and set aside. Petitioners are acquitted of the charges

framed against them in the FIR/proceedings.

15. The petition stands disposed of in the aforesaid

terms, alongwith all pending applications.

(Sandeep Sharma)
Judge

November 7, 2019
(Vikrant)

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