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Crmmo No. 187 Of 2018 vs State Of H.P on 29 May, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CrMMO No. 187 of 2018
Decided on: May 29, 2018

Chaman Singh and others ………Petitioners

.
Versus

State of H.P. …Respondent

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.

For the petitioners: Mr. Kulbhushan Khajuria, Advocate.

For the respondent: Mr. S.C. Sharma and Mr. Dinesh Thakur,
Addl. AG’s with Mr. Amit Kumar, DAG.

Sandeep Sharma, J. (Oral)

By way of instant petition filed under Section 482 CrPC,

prayer has been made on behalf of petitioners for quashing of FIR No.

133 of 2017 dated 7.12.2017, under Section 376 IPC and Sections 6 and

17 of the Protection of Children from Sexual Offences Act, 2012,

registered with Police Station, Tissa, District Chamba, Himachal Pradesh

and consequential proceedings pending before the learned Sessions

Judge, District Chamba, Himachal Pradesh.

2. Facts, as emerge from the record are that petitioner No.4,

Ram Dei wife of late Hoshiara, lodged above mentioned FIR against

petitioners No.1 to 3 at Police Station Tissa, District Chamba, Himachal

Pradesh, alleging therein that petitioners No.1 to 3 enticed her minor

daughter and took her away to their house, where she was kept under

illegal confinement for approximately three months. Subsequently,

petitioners No.2 and 3 dropped minor daughter of

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

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complainant/petitioner No.4 at her village Ganaudi, but since petitioners

No. 1 to 3 refused to take the daughter of petitioner No.4 (complainant)

to their house, FIR detailed herein above came to be lodged against

.

petitioners No.1 to 3. This court taking note of the fact that families of

the petitioner No.4 and petitioners No.1 to 3 were closely known to each

other and they had mutually agreed for marriage inter se petitioner No.2

Sanjeev Kumar and daughter of petitioner No.4, enlarged the petitioners

No.1 to 3 on bail.

3. By way of instant petition, prayer has been made on behalf

of the petitioners including complainant namely Ram Dei (petitioner

No.4) that since both the families have arrived at an amicable settlement,

FIR lodged at the behest of petitioner No. 4 may be quashed and set

aside. As per settlement arrived inter se parties, petitioner Nos. 1 and 3

have agreed to solemnize the marriage of petitioner No.2 Sanjeev Kumar

with daughter of petitioner No.4, Ram Dei, who at present is 17 years

old. Both the parties have agreed inter se them that when daughter of

petitioner No.4 shall attain the age of majority, they would solemnize

marriage of petitioner No.2 and daughter of petitioner No.4.

4. Respondent-State, by way of reply to the petition has

opposed the prayer having been made on behalf of the petitioners. Mr.

Dinesh Thakur, learned Additional Advocate General strenuously argued

that keeping in view the gravity of the offence allegedly committed by

petitioners No. 1 to 3, prayer made in this petition deserves to be rejected

outrightly. Mr. Thakur, further contended that consent, if any, of

daughter of petitioner No.4 is immaterial as far as commission of offence

punishable under Section 376 IPC is concerned. However, Mr. Thakur

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fairly admitted that as per investigation, both the families were closely

known to each other and they had agreed inter se them for solemnization

of marriage of petitioner No. 2 with the daughter of petitioner No.4.

.

5. Though the petition at hand has been jointly filed by the

accused and complainant i.e. petitioners No.1 to 3 and petitioner No.4,

but this court solely with a view to ascertain the correctness of

averments contained in the petition, also recorded statement of

complainant/petitioner No.4 on oath, who categorically stated before this

Court that she does not want to pursue the case initiated at her behest

because both the families have resolved to solemnize the marriage of

petitioner No.2 with daughter of petitioner No.4. She further stated that

she has arrived at compromise of her own volition without there being

any external pressure and she has no objection in case, FIR registered

against petitioners No.1 to 3 alongwith consequential proceedings is

quashed and set aside. This Court also recorded statements of

petitioners No. 1 to 3, who stated on oath before this Court that as per

agreed terms inter se parties, marriage of petitioner No.2 would be

solemnized with daughter of petitioner No.4, on her attaining the age of

majority and in case, they fail to abide by the settlement arrived inter se

them, they shall be liable for penal consequences.

6. Mr. Kulbhushan Khajuria, learned counsel representing the

petitioners, contended that the complainant(petitioner No.4) as well as

accused (petitioners No.1 to 3) have resolved the matter amicably inter se

them and as such, FIR detailed above, alongwith consequential

proceedings pending in the court of learned Sessions Judge, Chamba,

may be ordered to be quashed and set aside.

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7. Since the instant petition has been filed under Section 482

Cr.P.C, this Court deems it fit to consider the same in the light of the

judgment passed by Hon’ble Apex Court in Narinder Singh and others

.

versus State of Punjab and another (2014)6 Supreme Court Cases 466,

whereby 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 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, 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 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.

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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”.

8. 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 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.

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9. 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, 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

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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, 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.”

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10. Recently 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:

“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

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– 10 –

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 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

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– 11 –

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 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.”

11. In the case at hand, it is quite apparent from the material

perused by this Court that the families of petitioners No.1 to 3 and

petitioner No.4 were closely known to each other and in fact they had

agreed to solemnize the marriage of petitioner No.2 with the daughter of

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– 12 –

complainant/petitioner No. 4, but due to some misunderstanding, as has

been noticed herein above, FIR detailed herein above came to be lodged

against petitioners No. 1 to 3, who otherwise have categorically stated

.

before this Court that they shall solemnize marriage of petitioner No.2

with the daughter of petitioner No.4, once she attains the age of majority.

At this stage, it is worthwhile to mention that FIR in the case at hand,

came to be lodged after three months of alleged incident because

complainant/petitioner No.4 in her statement given to the police stated

that since families were known to each other and they had agreed for

marriage of petitioner No.2 and her daughter, she did not think it proper

to register case against petitioners No.1 to 3, who had been otherwise

visiting her frequently before the alleged incident. Since complainant-

petitioner No.4 has resolved to settle the matter amicably with petitioners

No.1 to 3, this Court finds very bleak/remote chances of conviction in

case criminal proceedings pending before learned Sessions Judge,

Chamba, are allowed to continue.

12. Accordingly, in view of the averments contained in the

petition as well as the submissions having been made by the learned

counsel for the petitioners that the matter has been compromised, and

keeping in mind the well settled proposition of law as well as the

statements of the parties recorded on oath before the Court, this Court

has no inhibition in accepting the prayer made in the present petition

and quashing the FIR as well as consequential proceedings pending in

the trial Court.

13. Consequently, in view of the peculiar facts and

circumstances of the case, wherein parties have resolved to settle the

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– 13 –

matter at hand, this Court while exercising power vested in it under

Section 482 Cr.P.C., deems it fit to accept the prayer having been made

by the learned counsel representing the petitioners and as such, the

.

matter is ordered to be compounded. Proceedings pending before the

learned Sessions Judge, Chamba, District Chamba, Himachal Pradesh,

against the petitioners No. 1 to 3, arising out of FIR No. 133 of 2017

dated 7.12.2017, under Section 376 IPC and Sections 6 and 17 of the

Protection of Children from Sexual Offences Act, 2012, registered with

Police Station, Tissa, District Chamba, Himachal Pradesh are quashed

and set aside. r

14. Accordingly, the present petition is allowed in the aforesaid

terms. Pending application(s), if any, also stands disposed of.

(Sandeep Sharma)
Judge
May 29, 2018
(Vikrant)

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