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Anupam Mahajan & Others vs State Of Himachal Pradesh & … on 2 January, 2020

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMOs No. 389 and 697 of 2019
Reserved on: 18.12.2019
Decided on: 02.01.2020

.

__

1. Cr.MMO No. 389 of 2019:

Anupam Mahajan others ….Petitioners.

Versus

State of Himachal Pradesh another …Respondents.

2. Cr.MMO No. 697 of 2019:

Anupam Mahajan others ….Petitioners.

Versus

State of Himachal Pradesh another …Respondents.
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.

In both the petitions:

For the petitioners: Mr. Adarsh K. Vashishta, Advocate,

For the respondents: Mr. Shiv Pal Manhans, Additional
Advocate General, with Mr. Amit Kumar

Dhumal, Deputy Advocate General and
Mr. Ram Lal Thakur, Assistant Advocate
General, for respondent No. 1/State.

Mr. Lakshay Thakur, Advocate, for
respondent No. 2.

__
Chander Bhusan Barowalia, Judge

Since both the petitions are inter se the same parties and the

relief sought for by the petitioners is analogous, both the petitions heard

together and now disposed of with a common judgment.

2. The present petitions have been maintained by the

petitioners under Section 482 of the Code of Criminal Procedure (for

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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short “Code”) for quashing of F.I.R No. 0036 of 2016, dated 24.02.2016,

under Sections 498A, Section354 read with Sectionsection 34 IPC and FIR No. 0299,

dated 25.12.2015, under Section 406 IPC, both registered in Police

.

Station, Kangra, alongwith consequential proceedings lying pending in

the Courts of learned Judicial Magistrate 1st Class, Kangra, and learned

Additional Chief Judicial Magistrate, Kangra, H.P.

3. The facts, which are necessary for determination and

adjudication of the present petitions, can be tersely portrayed as under:

On 07.12.2014 marriage of Shri Anupam Mahajan (petitioner

No. 1 herein) was solemnized at Delhi with Smt. Kanika Walia

(respondent No. 2 herein) according to Hindu rituals. At the time of the

marriage, petitioner No. 1 was posted at Manila, Philippines and

respondent No. 2 had to accompany petitioner No. 1 to Manila, after the

marriage. On 25.01.2015 petitioner No. 1 came to know that his father

is suffering from fourth stage cancer, so he requested respondent No. 2

to accompany him to India, but she refused and ultimately on

04.02.2015 petitioner No. 1 came to India alone. Respondent No. 2 did

not bother about the family of petitioner No. 1 and on being asked why

she is not concerned about his family, she started abusing him and

stopped talking with petitioner No. 1. As the father of petitioner No. 1

was to be admitted in Intensive Care Unit for treatment, he again came

to India. Respondent No. 2, despite repeated requests, did not mend her

behave and in turn she threatened to commit suicide and insisted to live

separately from the parents of petitioner No. 1. The respondent No. 2

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voluntarily let petitioner No. 1 and started living with her parents at her

parental house and despite repeated endeavors he did not return. As the

respondent no. 2 started threatening the petitioner No. 1, so a complaint

.

was made to the police of Delhi. During the month of November, 2015,

respondent No. 2 made a complaint to Women Cell of Dharmshala Police,

whereupon FIR No. 0299, dated 25.12.2015 was registered. In addition,

respondent No. 2 filed an application under Section 12 of the Prevention

of Women from SectionDomestic Violence Act, whereupon ultimately FIR No.

0036 of 2016, dated 24.02.2016 came to be registered. However, now

the parties have entered into a compromise, through mediation, and in

order to maintain their relations cordial, they do not want to continue

with the cases. Hence, the present petitions.

4. Learned counsel for the petitioners has argued that as the

parties have compromised the matter, vide effected on 18.09.2019,

through mediation, which is made part of records, no purpose will be

served by keeping the proceedings against the petitioner, therefore, FIRs,

alongwith consequential proceedings, arising out of the FIRs, pending

before the learned Court below may be quashed and set aside.

5. On the other hand, learned Additional Advocate General has

argued that the offences in question is offences against the society and it

cannot be compounded/quashed on the basis of settlement between the

offenders and victim, so the present petition may be dismissed.

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6. Learned counsel appearing on behalf of respondent No. 2

has argued that the present petitions may be allowed, in view of the

compromise arrived at between the parties.

.

7. To appreciate the arguments of learned counsel appearing on

behalf of the parties, I have gone through the entire records in detail.

8. At the very outset, it would be apt to extract the order dated

18.09.2019, passed upon the statements made before the learned

Mediator by petitioner No. 1 and respondent No. 2, which in extenso is as

under:

“After having deliberations between the

parties for a considerable time. The

parties have amicably compromised the
matter without any influence, pressure
and coercion. The parties mutually
agreed to file a petition under Section 13-

B of Hindu Marriage Act, 1955 in the
competent Court of jurisdiction i.e. at
Dharamshala before 10th of November,
2019. The petitioner No. 1 Anupam

Mahajan has undertaken to give an
amount of Rs. 15,00,000/- (Rupees

fifteen lac) as permanent alimony to Smt.
Kanika Walia-respondent No. 2 as full and
final settlement for dissolution of

marriage. He has to pay Rs. 5,00,000/-
(Rupees five lac) at the time of filing of
the aforesaid petition and balance
amount of Rs. 10,00,000/- (Rupees Ten
lac) wi9ll be paid by the petitioner No. 1
to respondent No. 2 in the Court of
Learned District Judge or in the
competent Court of jurisdiction at
Dharamshala at the time of final hearing
of the divorce petition in the shape of

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bank draft/cheque. It is also stated by
the respondent that all the litigations
pending between the parties at
Dharamshala i.e. FIR No. 0299 dated
25.12.2015, pending in the Court of

.

Additional Chief Judicial Magistrate,

Kangra bearing Case No. 135 of 2018,
case FIR No. 0036 of 2016 dated
24.2.2016 pending in the Court of

Judicial Magistrate Kangra vide case
No.213 of 2018 and Domestic Violence
complaint bearing No. 193-III-2015
pending in the Court of learned
Additional Chief Judicial Magistrate,

Kangra have come to an end today in the
mediation proceedings.

The respondent No. 2 has stated that she
has no objection in case petitioner No. 1

file a petition under Section 482 of
Cr.P.C. for cancellation of FIR No. 0299
dated 25.12.2015, pending in the Court
of Additional Chief Judicial Magistrate,

Kangra bearing case No. 135 of 2018 in
the Hon’ble High Court of H.P. She has
further stated that she will not claim

anything except alimony.

The statements made by the petitioner
No. 1 as well as respondent No. 2 shall
remain as part and parcel of the

mediation proceedings vide Annexure P-1
(two leaves).

The act and conduct of learned Advocates
of the parties and parties are highly
appreciated. The mediation is successful.
Therefore, Registry is requested to place
the case before the Hon’ble Court for
appropriated orders.”

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9. Their Lordships of the Hon’ble Supreme Court B.S. Joshi

and othersvs. State of Haryana and another, (2003) 4 SCC 675, have

.

held that if for the purpose of securing the ends of justice, quashing of

FIR becomes necessary, Sectionsection 320 Cr.P.C. would not be a bar to the

exercise of power of quashing. It is well settled that the powers under

Sectionsection 482 Cr.P.C. have no limits. Of course, where there is more power,

it becomes necessary to exercise utmost care and caution while invoking

such powers. Their Lordships have held as under:

“[6] SectionIn Pepsi Food Ltd. and another v. Special

Judicial Magistrate and others ((1998) 5
SCC 749), this Court with reference to

Bhajan Lal’s case observed that the
guidelines laid therein as to where the
Court will exercise jurisdiction under
Section 482 of the Code could not be
inflexible or laying rigid formulae to be
followed by the Courts. Exercise of such

power would depend upon the facts and
circumstances of each case but with the
sole purpose to prevent abuse of the
process of any Court or otherwise to

secure the ends of justice. It is well
settled that these powers have no limits.
Of course, where there is more power, it

becomes necessary to exercise utmost
care and caution while invoking such
powers.

[8] It is, thus, clear that Madhu Limaye’s
case does not lay down any general
proposition limiting power of quashing
the criminal proceedings or FIR or
complaint as vested in Section 482 of
the Code or extraordinary power under
SectionArticle 226 of the Constitution of India.
We are, therefore, of the view that if for
the purpose of securing the ends of
justice, quashing of FIR
becomesnecessary, Section 320 would
not be a bar to the exercise of power of
quashing. It is, however, a different
matter depending upon the facts and

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circumstances of each case whether to
exercise or not such a power.
[15] In view of the above discussion, we
hold that the High Court in exercise of
its inherent powers can quash criminal
proceedings or FIR or complaint and
Section 320 of the Code does not limit

.

or affect the powers under Section 482

of the Code.”

10. Their Lordships of the Hon’ble Supreme Court in SectionPreeti

Gupta and another vs. State of Jharkhand and another, (2010) 7

SCC 667, have held that the ultimate object of justice is to find out the

truth and punish the guilty and protect the innocent. The tendency of

implicating the husband and all his immediate relations is also not

uncommon. At times, even after the conclusion of the criminal trial, it is

difficult to ascertain the real truth. Experience reveals that long and

protracted criminal trials lead to rancor, acrimony and bitterness in the

relationship amongst the parties. The criminal trials lead to immense

sufferings for all concerned. Their Lordships have further held that

permitting complainant to pursue complaint would be abuse of process

of law and the complaint against the appellants was quashed. Their

Lordships have held as under:

[27] A three-Judge Bench (of which one of us,

Bhandari, J. was the author of the
judgment) of this Court in SectionInder Mohan
Goswami and Another v. State of
Uttaranchal Others, 2007 12 SCC 1
comprehensively examined the legal
position. The court came to a definite
conclusion and the relevant observations
of the court are reproduced in para 24 of
the said judgment as under:-
“Inherent powers under Sectionsection 482
Cr.P.C. though wide have to be exercised
sparingly, carefully and with great
caution and only when such exercise is
justified by the tests specifically laid

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down in this section itself. Authority of
the court exists for the advancement of
justice. If any abuse of the process
leading to injustice is brought to the
notice of the court, then the Court
would be justified in preventing injustice
by invoking inherent powers in absence

.

of specific provisions in the Statute.”

[28] We have very carefully considered the
averments of the complaint and the
statements of all the witnesses recorded
at the time of the filing of the

complaint. There are no specific
allegations against the appellants in the
complaint and none of the witnesses
have alleged any role of both the
appellants.

[35] The ultimate object of justice is to

find out the truth and punish the guilty
and protect the innocent. To find out
the truth is a herculean task in majority
of these complaints. The tendency of
implicating husband and all his

immediate relations is also not
uncommon. At times, even after the

conclusion of criminal trial, it is difficult
to ascertain the real truth. The courts
have to be extremely careful and
cautious in dealing with these
complaints and must take pragmatic

realities into consideration while dealing
with matrimonial cases. The allegations
of harassment of husband’s close
relations who had been living in different
cities and never visited or rarely visited

the place where the complainant resided
would have an entirely different
complexion. The allegations of the

complaint are required to be scrutinized
with great care and circumspection.
[36]. Experience reveals that long and
protracted criminal trials lead to

rancour, acrimony and bitterness in the
relationship amongst the parties. It is
also a matter of common knowledge that
in cases filed by the complainant if the
husband or the husband’s relations had
to remain in jail even for a few days, it
would ruin the chances of amicable
settlement altogether. The process of
suffering is extremely long and painful.

……[37] The criminal trials lead to immense
sufferings for all concerned. Even
ultimate acquittal in the trial may also
not be able to wipe out the deep scars of

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suffering of ignominy. Unfortunately a
large number of these complaints have
not only flooded the courts but also have
led to enormous social unrest affecting
peace, harmony and happiness of the
society. It is high time that the
legislature must take into consideration

.

the pragmatic realities and make

suitable changes in the existing law. It is
imperative for the legislature to take
into consideration the informed public
opinion and the pragmatic realities in
consideration and make necessary

changes in the relevant provisions of
law.

[38] We direct the Registry to send a copy of
this judgment to the Law Commission
and to the Union Law Secretary,
Government of India who may place it

before the Hon’ble Minister for Law
Justice to take appropriate steps in the
larger interest of the society.”

11. Their Lordships of the Hon’ble Supreme Court in Jitendra

Raghuvanshi and othersvs. Babita Raghuvanshi and another,(2013) 4

SCC 58, have held that criminal proceedings or FIR or complaint can be

quashed under Sectionsection 482 Cr.P.C. in appropriate cases in order to meet

ends of justice. Even in non-compoundable offences pertaining to

matrimonial disputes, if court is satisfied that parties have settled the

disputes amicably and without any pressure, then for purpose of

securing ends of justice, FIR or complaint or subsequent criminal

proceedings in respect of offences can be quashed. Their Lordships have

held as under:

“[13] As stated earlier, it is not in dispute that
after filing of a complaint in respect of
the offences punishable under Sections
498A and Section406 of IPC, the parties, in the
instant case, arrived at a mutual
settlement and the complainant also has
sworn an affidavit supporting the stand
of the appellants. That was the position
before the trial Court as well as before
the High Court in a petition filed under

04/01/2020 20:26:35 :::HCHP

– 10 –

Section 482 of the Code. A perusal of the
impugned order of the High Court shows
that because the mutual settlement
arrived at between the parties relate to
non-compoundable offence, the court
proceeded on a wrong premise that it
cannot be compounded and dismissed

.

the petition filed under Section 482. A

perusal of the petition before the High
Court shows that the application filed by
the appellants was not for compounding
of non-compoundable offences but for
the purpose of quashing the criminal

proceedings.

[14] The inherent powers of the High Court
under Section 482 of the Code are wide
and unfettered. In B.S. Joshi , this Court

has upheld the powers of the High Court
under Section 482 to quash criminal
proceedings where dispute is of a private
nature and a compromise is entered into
between the parties who are willing to
settle their differences amicably. We are

satisfied that the said decision is
directly applicable to the case on hand

and the High Court ought to have
quashed the criminal proceedings by
accepting the settlement arrived at.

[15] In our view, it is the duty of the courts

to encourage genuine settlements of
matrimonial disputes, particularly, when
the same are on considerable increase.

Even if the offences are non-
compoundable, if they relate to

matrimonial disputes and the court is
satisfied that the parties have settled

the same amicably and without any
pressure, we hold that for the purpose of
securing ends of justice, Section 320 of
the Code would not be a bar to the

exercise of power of quashing of FIR,
complaint or the subsequent criminal
proceedings.

[16] There has been an outburst of
matrimonial disputes in recent times.
The institution of marriage occupies an
important place and it has an important
role to play in the society. Therefore,
every effort should be made in the
interest of the individuals in order to
enable them to settle down in life and
live peacefully. If the parties ponder over
their defaults and terminate their
disputes amicably by mutual agreement

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instead of fighting it out in a court of
law, in order to do complete justice in
the matrimonial matters, the courts
should be less hesitant in exercising its
extraordinary jurisdiction. It is trite to
state that the power under Section 482
should be exercised sparingly and with

.

circumspection only when the court is

convinced, on the basis of material on
record, that allowing the proceedings to
continue would be an abuse of the
process of the court or that the ends of
justice require that the proceedings

ought to be quashed. We also make it
clear that exercise of such power would
depend upon the facts and
circumstances of each case and it has to
be exercised in appropriate cases in
order to do real and substantial justice

for the administration of which alone
the courts exist. It is the duty of the
courts to encourage genuine settlements
of matrimonial disputes and Section 482
of the Code enables the High Court and

SectionArticle 142 of the Constitution enables
this Court to pass such orders.

[17] In the light of the above discussion, we
hold that the High Court in exercise of
its inherent powers can quash the
criminal proceedings or FIR or complaint

in appropriate cases in order to meet the
ends of justice and Section 320 of the
Code does not limit or affect the powers
of the High Court under Section 482 of
the Code. Under these circumstances, we

set aside the impugned judgment of the
High Court dated 04.07.2012 passed in
M.C.R.C. No. 2877 of 2012 and quash the

proceedings in Criminal Case No. 4166 of
2011 pending on the file of Judicial
Magistrate Class-I, Indore.”

12. Similarly, Hon’ble Supreme Court in Parbatbhai Aahir alias

Parbatbhai Bhimsinhbhai Karmur and othersvs.State of Gujarat and

another, (2017) 9 Supreme Court Cases 641, wherein it has been held

as under :

“16. The broad principles which emerge from
the precedents on the subject, may be
summarised in the following
propositions:

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– 12 –

16.1. 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
recognises and preserves powers which

.

inhere in the High Court;

16.2. 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.

16.3. 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;

16.4 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;

16.5 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;

16.6. 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

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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;

16.7. 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;

16.8. Criminal cases involving offences which

arise from commercial, financial,
mercantile, partnership or similar
transactions with an essentially civil
flavour may in appropriate situations fall
for quashing where parties have settled
the dispute;

16.9 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

16.10.There is yet an exception to the principle

set out in propositions 16.8 and 16.9
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.”

Even if, the trial is allowed to be continued, as the parties have

compromised the matter, there are bleak chances of conviction to secure

the ends of justice.

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– 14 –

13. Thus, taking into consideration the law as discussed

hereinabove, I find that the interest of justice would be met, in case, the

proceedings are quashed, as the parties have already compromised the

.

matter, through mediation proceedings, which are made part of the record

and they do not want to continue with the case, in order to maintain their

relations cordial.

14. Accordingly, looking into all attending facts and circumstances,

this Court finds that present is a fit case to exercise jurisdiction vested in

this Court, under Section 482 of the Code and, therefore, the present

petitions are allowed and FIR No. 0036 of2016, dated 24.02.2016 under

Section 498A, 354 and 34 IPC, registered in Police Station Kangra,

alongwith consequential proceedings in case No. 213 of 2018, titled State of

H.P. vs. Anupam others pending adjudication before the learned Judicial

Magistrate1st Class, Kangra and FIR No. 0299, dated 25.12.2015, under

Section 406 IPC, registered in Police Station Kangra, District Kangra, H.P.

alongwith consequential proceedings in case titled SectionState of H.P. vs. Anupam

others, case No. 135 of 2018, pending adjudication before the learned

Additional Chief Judicial Magistrate, Kangra, are ordered to be quashed.

15. The petitions are accordingly disposed of alongwith pending

applications, if any.

(Chander Bhusan Barowalia)
2nd January, 2020 Judge
(virender)

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