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Dharampal And Ors vs State Of Hp And Ors on 5 December, 2019

IN THE
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.701 of 2019
Date of Decision: 5.12.2019

.

Dharampal and Ors. ………Petitioners.

Versus

State of HP and Ors. ……….Respondents.
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?

For the petitioners : Mr. T.S. Chauhan, Advocate.
For the respondents : Mr. Sudhir Bhatnagar, Mr. Anil Jaswal and Mr.
Arvind Sharma, Additional Advocate
Generals, with Mr. Kunal Thakur, Deputy
Advocate General, for the State.
r Mr. Vivek Khadwal, Advocate, for

respondents No. 2 to 4.

Sandeep Sharma, J. (Oral)

By way of instant petition filed under Section 482 of the

Code of Criminal Procedure, a prayer has been made on behalf of the

petitioners, for quashing of FIR No.6/14 dated 18.1.2014, under Sections

323 and 506 read with Section 34 of IPC, registered with Police Station

RamSehar, District Solan, H.P., as well as consequent proceedings

pending before the court below on the basis of compromise/amicable

settlement arrived inter-se parties.

2. Averments contained in the petition, which is duly

supported by an affidavit, reveal that marriage inter-se petitioner No.1

Dharampal and respondent No.2 Sarita was solemnized in the year,
Whether reporters of the Local papers are allowed to see the judgment?

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2012, but since they were unable to live peacefully for quite long, they

started living separately. Pleadings adduced on record further reveals

.

that petitioner No.1 filed petition under Section 9 of Hindu Marriage Act

for restitution of Conjugal Rights (Annexure P-3) but subsequently, they

amicably settled their dispute before Lokadalat, whereby they both

agreed to take mutual divorce. Vide order dated 8.12.2016 (taken on

record), learned District Judge, Bilaspur, dissolved the marriage of

petitioner No.1 and respondent No.2 by way of mutual consent under

Section 13 (B) of the Hindu Marriage Act.

3. Apart from above, respondent No.2 Sarita had also lodged

one FIR, which is sought to be quashed in the instant proceedings. After

completion of investigation, police presented challan in the competent

court of law, which is pending adjudication. As per undertaking given

by respondent No.2 before the Lokadalat on 12.3.2016, case, if any,

lodged by her was to be withdrawn, but since respondent No.2 failed to

take appropriate steps for withdrawing the case lodged her behest,

petitioners have approached this Court in the instant proceedings for

quashing of FIR as well as consequent proceedings pending before the

court below

4. On 18.11.2019, this Court while issuing notice to the

respondents deemed it necessary to cause presence of the parties,

especially Sarita-respondent No.2, so that factum, with regard to the

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correctness and genuineness of the compromise, if any, is ascertained/

verified.

.

5. Pursuant to aforesaid order, parties have come present in

the court today. Complainant-respondent No.2, at whose behest FIR

sought to be quashed, came to be lodged against the petitioners

stated on oath before this Court that she of her own volition and without

there being any external pressure has entered into compromise,

whereby she has agreed before the Lokadalat to withdraw the cases

lodged by her against the petitioners. She stated that since she has

already taken divorce from petitioner No.1, she does not wish to

prosecute the case further and shall have no objection in case FIR as

well as consequent proceedings pending before the court below, are

ordered to be quashed and set-aside and petitioners-accused are

acquitted. Her statement made on oath is taken on record.

6. Mr. Kunal Thakur, learned Deputy Advocate General, having

heard aforesaid statement made by respondent No.2 fairly stated that

in view of the amicable settlement arrived inter-se parties, no fruitful

purpose would be served in case FIR sought to be quashed as well as

consequent proceedings pending before the court below are allowed

to sustain.

7. Since the petition has been filed under Section 482 Cr.PC,

this Court deems it fit to consider the present petition in the light of the

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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 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 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:

29.1Power 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

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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 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

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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 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”.

“32. We find from the impugned order that the sole reason which

weighed with the High Court in refusing to accept the settlement
between the parties was the nature of injuries. If we go by that
factor alone, normally we would tend to agree with the High Court’s
approach. However, as pointed out hereinafter, some other
attendant and inseparable circumstances also need to be kept in
mind which compels us to take a different view.

33. We have gone through the FIR as well which was recorded on
the basis of statement of the complainant/victim. It gives an
indication that the complainant was attacked allegedly by the
accused persons because of some previous dispute between the
parties, though nature of dispute, etc. is not stated in detail.
However, a very pertinent statement appears on record viz.

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“respectable persons have been trying for a compromise up till
now, which could not be finalized.” This becomes an important
aspect. It appears that there have been some disputes which led to
the aforesaid purported attack by the accused on the complainant.
In this context when we find that the elders of the village, including

.

Sarpanch, intervened in the matter and the parties have not only

buried their hatchet but have decided to live peacefully in future,
this becomes an important consideration. The evidence is yet to be
led in the Court. It has not even started. In view of compromise
between parties, there is a minimal chance of the witnesses coming
forward in support of the prosecution case. Even though nature of

injuries can still be established by producing the doctor as witness
who conduced medical examination, it may become difficult to
prove as to who caused these injuries. The chances of conviction,
therefore, appear to be remote. It would, therefore, be unnecessary
to drag these proceedings. We, taking all these factors into

consideration cumulatively, are of the opinion that the compromise
between the parties be accepted and the criminal proceedings
arising out of FIR No.121 dated 14.7.2010 registered with police
station Lopoke, District Amritsar Rural be quashed. We order
accordingly.”

8. 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 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

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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
r is of wide plenitude with no statutory limitation but it has to

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

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

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

Such offences are not private in nature and have serious
impact on society. Similarly, any compromise between the
victim and offender in relation to the offences under
special statutes like Prevention of Corruption Act or the

offences committed by public servants while working in
that capacity etc; cannot provide for any basis for
quashing criminal proceedings involving such offences. But
the criminal cases having overwhelmingly and pre-
dominatingly civil flavour stand on different footing for the
purposes of quashing, particularly the offences arising from
commercial, financial, mercantile, civil, partnership or such
like transactions or the offences arising out of matrimony
relating to dowry, etc. or the family disputes where the
wrong is basically private or personal in nature and the
parties have resolved their entire dispute. In this category
of cases, High Court may quash criminal proceedings if in
its view, because of the compromise between the offender

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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.

9. 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

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the exercise of its inherent power under Section 482 quashed
proceedings under Sections 420, 467, 468 and 471 read with
Section 120-B of the Penal Code. While allowing the appeal filed
by the Central Bureau of Investigation Mr Justice Dipak Misra (as
the learned Chief Justice then was) observed that the case

.

involved allegations of forgery of documents to embezzle the

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

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

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

at large. To quash the proceeding merely on the ground
that the accused has settled the amount with the bank
would be a misplaced sympathy. If the prosecution
against the economic offenders are not allowed to
continue, the entire community is aggrieved.”

14. In a subsequent decision in State of Tamil Nadu v R

Vasanthi Stanley (2016) 1 SCC 376, the court rejected the

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

“… Lack of awareness, knowledge or intent is neither to be
considered nor accepted in economic offences. The
submission assiduously presented on gender leaves us
unimpressed. An offence under the criminal law is an

offence and it does not depend upon the gender of an
accused. True it is, there are certain provisions in Code of
Criminal Procedure relating to exercise of jurisdiction Under

Section 437, etc. therein but that altogether pertains to a
different sphere. A person committing a murder or getting
involved in a financial scam or forgery of documents,

cannot claim discharge or acquittal on the ground of her
gender as that is neither constitutionally nor statutorily a
valid argument. The offence is gender neutral in this case.
We say no more on this score…”

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

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– 11 –

(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
r ends of justice or (ii) to prevent an abuse of the process of

any court;

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

(vi) In the exercise of the power under Section 482 and while
dealing with a plea that the dispute has been settled, the
High Court must have due regard to the nature and gravity

of the offence. Heinous and serious offences involving
mental depravity or offences such as murder, rape and
dacoity cannot appropriately be quashed though the victim

or the family of the victim have settled the dispute. Such
offences are, truly speaking, not private in nature but
have a serious impact upon society. The decision to

continue with the trial in such cases is founded on the
overriding element of public interest in punishing persons for
serious offences;

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

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

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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.

10. It is quite apparent from the aforesaid exposition of law that

High Court has inherent power to quash criminal proceedings even in

those cases which are not compoundable, but such power is to be

exercised sparingly and with great caution. In the judgments, referred

hereinabove, Hon’ble Apex Court has categorically held that Court

while exercising inherent power under Section 482 Cr.P.C., must have

due regard to the nature and gravity of offence sought to be

compounded. Hon’ble Apex Court has though held that heinous and

serious offences of mental depravity, murder, rape, dacoity etc. cannot

appropriately be quashed though the victim or the family of the victim

have settled the dispute, but it has also observed that while exercising its

powers, 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

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– 13 –

injustice would be caused to him by not quashing the criminal cases.

Hon’ble Apex Court has further held that Court while exercising power

.

under Section 482 Cr.P.C can also be swayed by the fact that

settlement between the parties is going to result in harmony between

them which may improve their future relationship. Hon’ble Apex Court in

its judgment rendered in State of Tamil Nadu supra, has reiterated that

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

and has held that the power to quash under Section 482 is attracted

even if the offence is non-compoundable. In the aforesaid judgment

Hon’ble Apex Court has held that while forming an opinion whether a

criminal proceedings 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.

11. Consequently, in view of the averments contained in the

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

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

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

compromise being genuine, FIR No.6/14 dated 18.1.2014, under Sections

323 and 506 read with Section 34 of IPC, registered with Police Station

RamSehar, District Solan, H.P., as well as consequent proceedings

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– 14 –

pending before the court below are ordered to be quashed and set-

aside.

.

12. The present petition is allowed in the aforesaid terms.

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

5th December, 2019 (Sandeep Sharma),
(Manjit) Judge.

r to

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