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Decided On: September 30 vs State Of Himachal Pradesh And … on 30 September, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CrMMO No. 544 of 2019
Decided on: September 30, 2019
_
Pankaj Kumar ………Petitioner

.

Versus

State of Himachal Pradesh and another …Respondents

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

For the petitioner: Mr. Mohan Singh, Advocate.

For the respondents: M/s Sudhir Bhatnagar and Sanjeev Sood,
Additional Advocates General with Mr.
r Kunal Thakur, Deputy Advocate General,
for respondent No.1.

Respondent No.2 in person.

Sandeep Sharma, J. (Oral)

By way of present petition filed under 482 CrPC,

prayer has been made on behalf of the petitioner for quashing

and setting aside FIR No. 3, dated 13.11.2018, registered at

Women Police Station (West) Solan, Himachal Pradesh under Ss.

376, 323, 342 and 506 IPC and S. 67 of IT Act, in view of

marriage of respondent No.2/victim-prosecutrix and petitioner.

2. On 13.9.2019, this Court, while issuing notice of the

petition, directed learned Additional Advocate General to verify

the factum with regard to solemnization of marriage inter se

petitioner and respondent No.2. Vide aforesaid order, this Court

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

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also directed respondent No.2-Kritika, at whose behest FIR in

question came to be registered, to remain present in Court.

Pursuant to aforesaid order, respondent No.2 Kritika and

.

Inspector Naveen Jhalta have come present. Inspector Naveen

Jhalta, Women Police Station, Solan, Himachal Pradesh has

produced a certificate issued by Sanatan Dharram Sabha,

Housing Board Colony, Saproon, Solan, Himachal Pradesh,

perusal whereof clearly suggests that on 9.2.2019, petitioner and

respondent No.2 have solemnised marriage.

3. Facts, as emerge from the record reveal that FIR in

question came to be lodged at the behest of respondent No.2, who

alleged that on 11.11.2018, petitioner unauthorizedly entered her

room and sexually assaulted her against her wishes. She also

alleged that petitioner also took objectionable photographs of her

in the naked condition and thereafter threatened to upload the

same on the internet. On the basis of aforesaid complaint, FIR in

question came to be lodged against the petitioner. Petitioner was

subsequently ordered to be enlarged on bail vide order dated

1.2.2019 passed by a Coordinate Bench of this Court in CrMP(M)

No. 1792 of 2018. After being enlarged on bail, petitioner

solemnised marriage with respondent No.2 on 9.2.2019 at

Sanatan Dharam Sabha, Housing Board Colony, Saproon, Solan

vide marriage certificate (Annexure P-4), which has been duly

verified by the Investigating Officer, present in the court.

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4. Respondent No.2 Kritika , on oath stated before this

court that she of her own volition and without there being any

external pressure has come to this Court. She stated that on

.

account of some misunderstanding, FIR in question came to be

lodged against the petitioner, with whom she has solemnised

marriage on 9.2.2019. She further stated that since she is living

happily with the petitioner, as such, she shall have no objection

in case, FIR in question as well as consequent proceedings

pending in the competent Court of law are quashed and set aside

and petitioner is acquitted of the charges framed against him.

She further stated that FIR was lodged by her against the

petitioner under extreme pressure from her relations, who were

opposed to her marriage with the petitioner, who is from different

community. Her statement is taken on record.

5. Mr. Kunal Thakur, learned Deputy Advocate General,

having heard aforesaid statement of respondent No.2, Kritika,

fairly stated that since respondent No.2 has solemnised marriage

with the petitioner, which fact stands duly verified by the

Investigating Officer, no fruitful purpose would be served in case,

FIR as well as consequent proceedings pending in the competent

Court of law are allowed to sustain. He further stated that in view

of subsequent development, especially the statement made by

respondent No.2 there are very bleak and remote chances of

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conviction, as such prayer made in the present petition may be

accepted being an exceptional case.

6. In view of the aforesaid statement of respondent No.

.

2, this Court sees no impediment in accepting the prayer made in

the instant petition, so far quashment of FIR in question and

consequent proceedings is concerned.

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.

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

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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.
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

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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.

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

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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

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

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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

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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,

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 –

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:

“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:

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– 11 –

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

15.
rThe 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

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– 12 –

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.”

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

against the petitioner are heinous in nature, but since petitioner

has solemnised marriage with the victim-prosecutrix/respondent

No.2/complainant, at whose behest criminal machinery was set

into motion, as such, keeping in mind the interest of respondent

No.2, who is now wife of petitioner, against whom FIR was

lodged, this Court, deems it appropriate to quash the FIR as well

as consequential proceedings thereto, especially keeping in view

the fact that petitioner and respondent No.2 have contracted

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– 13 –

marriage with each other, 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 petitioner and victim-

prosecutrix/respondent No.2 have contracted marriage, no

fruitful purpose would be served in case proceedings initiated

against the petitioner are allowed to continue. Moreover,

petitioner and respondent No.2 have married each other and now

it would not be in the interest of the respondent No.2 to continue

with the proceedings against petitioner, who now is her husband,

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.

3, dated 13.11.2018, registered at Women Police Station (West)

Solan, Himachal Pradesh under Ss. 376, 323, 342 and 506 IPC

and S. 67 of IT Act, and consequent proceedings pending in the

competent Court of law, if any, are quashed and set aside.

Petitioner is acquitted of the offences levelled against him in the

aforesaid FIR.

15. The petition stands disposed of in the aforesaid

terms, alongwith all pending applications.

(Sandeep Sharma)
Judge
September 30, 2019
(Vikrant)

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