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Decided On:24Th April vs State Of Himachal Pradesh & Anr on 24 April, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MMO No. 301 of 2018
Decided on:24th April, 2019.

Asha Devi ors. …Petitioners.

Versus

.

State of Himachal Pradesh anr. …Respondents.

Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

1 Whether approved for reporting? Yes.

For the petitioners: Mr. K.B. Khajuria, Advocate.

For the respondents: Mr. S.C. Sharma, Mr. Shiv Pal
Manhans and Mr. P.K. Bhatti,

Additional Advocate Generals
with Mr. Raju Ram Rahi, Deputy
Advocate General, for
respondent No.1.
r Mr. M.L. Sharma, Advocate for

respondent No.2.

Chander Bhusan Barowalia, Judge

The present petition is maintained by the petitioners

under Section 482 of the Code of Criminal Procedure

(hereinafter to be called as “the Code”) for quashing of F.I.R

No. 12/2018, dated 26.1.2018, under Section 376 of the Indian

Penal Code and Section 6 of Protection of Children from Sexual

Offences Act, 2012, registered at Police Station, Dalhousie,

District Chamba, H.P.

2. Briefly stating the facts, giving rise to the present

petition, as per the prosecution story, on 26.01.2018, the

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

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2

prosecutrix (name withheld) got her statement recorded with the

police, wherein she stated that she is 16 years of age and studies

in 11th standard. She further stated that

respondent No.2-accused on the pretext of marriage committed

.

sexual intercourse with her many times. As per the prosecutrix, in

the month of March, 2018, she came to know that respondent

No.2-accused does not want to marry her. She came to know

that she is pregnant and respondent No.2-accused on the pretext

of marriage committed sexual intercourse with her. On the basis of

the complaint, so made by the prosecutrix, police registered a

case and the investigation ensued. The statement of the

prosecutrix was recorded under Section 164 Cr. P.C. As per the

final medical opinion, there is single live intrauterine pregnancy of

25 weeks, 03 days, i.e., HR 138 beats/min EDD on 27.05.2018 and

there is no gross congenital anomaly seen. Thereafter,

complainant-petitioner No.2 reported the matter to the police

and FIR was lodged. Now, the parties have entered into a

compromise and are married having a child with whom they

are living happily. Prosecutrix is not supporting the prosecution

case and as family is happy family compromised the matter

and prosecutrix do not want to pursue the case against

respondent No.2. Hence, the present petition.

3. Learned counsel for the petitioners has argued

that as the parties have compromised the matter, no

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3
purpose will be served by keeping the proceedings against

the petitioners and the FIR/Challan, may be quashed and

set aside.

4. On the other hand, learned Additional Advocate

.

General has argued that the offence is not compoundable,

so the petition may be dismissed.

5. Mr. M.L. Sharma, learned counsel appearing on

behalf of respondent No.2, has argued that the parties have

entered into compromise and so, the proceedings pending

before the learned Court below may be quashed.

6. To appreciate the arguments of learned counsel

appearing on behalf of the parties, I have gone through the

entire record in detail.

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

SectionJoshi and others vs. 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, Section

320 would not be a bar to the exercise of power of quashing.

It is well settled that the powers under Sectionsection 482 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

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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 becomes
necessary, 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 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.

8. 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

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criminal trial, it is difficult to ascertain the real truth.

Experience reveals that long and protracted criminal trials

lead to rancour, 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 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

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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.

[38] 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 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. 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.

9. Their Lordships of the Hon’ble Supreme Court in

SectionJitendra Raghuvanshi and others vs. Babita Raghuvanshi and

another, (2013) 4 SCC 58, have held that criminal

proceedings or FIR or complaint can be quashed under

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7
Section 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 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

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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 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,

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Indore.”

10. Similarly, Hon’ble Supreme Court in Parbatbhai

Aahir alias SectionParbatbhai Bhimsinhbhai Karmur and others vs. 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:

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
r 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,

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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 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

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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.

.

11. From the perusal of records, it is clear that the

parties have solemnized their marriage out of their free will

and volition and a ‘marriage certificate’ evidencing such

marriage has also been issued in their favour. When the parties

have reached the settlement, then the guiding factor in such

cases would be to secure the ends of justice or to prevent the

abuse of process of any Court. After-all, the Court ought not to

interfere or even intervene when petitioner No.2 and

respondent No.2 are husband and wife in the eyes of law. This

Court is convinced that the continuation of the proceedings

would tantamount to abuse of process of law and would play

havoc with the married life of petitioner No.2 as also

respondent No.2.

12. Thus, taking into consideration the law as

discussed hereinabove, I find that the interest of justice will

be met, in case, the proceedings are quashed, as the parties

have already compromised the matter

13. Accordingly, looking into all attending facts and

circumstances, I find this case to be a fit case to exercise

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jurisdiction vested in this Court, under Section 482 of the

Code and accordingly F.I.R No.12/2018, dated 26.1.2018,

under Section 376 of the Indian Penal Code and Section 6 of

Protection of Children from Sexual Offences Act, 2012,

.

registered at Police Station, Dalhousie, District Chamba, H.P; is

ordered to be quashed and consequently, the proceedings

pending before the learned Sessions Judge, Chamba, District

Chamba, H.P; arising out of the aforesaid FIR, are also

ordered to be quashed.

14. The petition is accordingly disposed of alongwith

pending applications, if any.

(Chander Bhusan Barowalia)
Judge

24th April, 2019

(CS)

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