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Husan Kumar And Another vs State Of H.P on 18 October, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.MMO No.553 of 2019.

.

Decided on: 18.10.2019.

Husan Kumar and another ……Petitioners.

Versus

State of H.P. …..Respondent.

Coram

Whether approved for reporting?

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

1

.Yes

For the petitioners: Ms. Tim Saran, Advocate.

For the respondent: Mr. Narinder Kumar Guleria,
Additional Advocate Genera.

Justice Dharam Chand Chaudhary, J (Oral).

This petition under Section 482 Cr. P.C. has been

filed with a prayer to quash FIR No.118/2019, registered

against petitioner No.1 in Police Station Karsog, District

Mandi, under Section 376 IPC on 5.8.2019. The

complainant is petitioner No.2, now the wife of petitioner

No.1.

1

Whether reporters of the local papers may be allowed to see the judgment?

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…2…

2. The grounds on which the FIR has been sought

to be set aside and quashed, in a nutshell, are that though

.

accused-petitioner No.1 and complainant-petitioner No.2

were known to each other since long and also in love with

each other, however, on his (petitioner No.1), proceeding

away to State of Uttar Pradesh to pursue his higher studies,

petitioner No.2 believing that he may not turn up or

abandon her company, registered the FIR against him. In

order to remove her doubt, petitioner No.1 solemnized

marriage with her on 10.8.2019 in Mamleshwar Mahadev

Temple at Karsog, as per Hindu rites and customs. They

are now husband and wife and living happily in the

company of each other. The parents of petitioner No.1 are

happy with the marriage of petitioner No.2 with him. Shri

Nek Ram, father of petitioner No.1 present in Court, has

testified these facts. It is in such subsequent developments,

petitioner No.2 has decided not to prosecute accused-

petitioner No.1 any further in the criminal case registered

against him at her instance. The FIR, as such, has been

sought to be quashed and set aside.

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…3…

3. Statements of complainant-petitioner No.2 and

also that of accused-petitioner No.1 to this effect have also

.

been recorded separately. The facts, therefore, remain that

the complainant-petitioner No.2 is not interested in

prosecuting the accused-petitioner No.1 any further, as he

is her husband. Both the petitioners are major.

Complainant-petitioner No.2 was major at the time of the

commission of the alleged offence and also the

solemnization of marriage. It is in this back ground, the

question as to whether FIR Annexure A-1 deserves to be

quashed and set aside or not, has to be determined in the

light of the given facts and circumstances and also the law

applicable thereto.

4 Before coming to answer the question ibid, it is

desirable to take note of the law applicable in a case of this

nature. A Larger Bench of the Hon’ble Apex Court in Gian

Singh Vs. State of Punjab and another, (2012) 10 SCC

303, has laid down the guidelines to be followed by the

High Courts, while considering a question of quashing FIR

on the basis of compromise. It has been held in this

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…4…

judgment that the High Court in exercise of inherent powers

vested in it under Section 482 of the Code of Criminal

.

Procedure may quash FIR/criminal proceedings in a case

where the offence allegedly committed by the accused

though is not compoundable, however, the victim and

accused have settled the differences amicably. Such

powers can be exercised only in appropriate cases, having

arisen out of civil, mercantile, commercial, financial,

partnership or such other transactions of like nature

including matrimonial or the case relating to dowry

etc., in which the wrong basically is done to the

victim. This judgment also takes note of the fact that FIR

on the basis of compromise should not be quashed in a

case of serious nature like rape, dacoity and corruption

etc., having serious impact in the society.

5. The Apex Court in Narinder Singh and others

Vs. State of Punjab and another, (2014) 6 SCC 466 ,

while quashing the FIR in a case registered under Section

307 of the Indian Penal Code has held as under:

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…5…

“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., ‘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

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…6…

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
conducted 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
r 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.”

6. The Apex Court in a recent judgment titled

Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur

and others Vs. State of Gujarat and another (2017) 9

SCC 641, has reiterated the broad principles need to be

followed while considering the prayer for quashing the FIR

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…7…

and consequential criminal proceedings on the basis of

compromise, which reads as follow:-

.

“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 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

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…8…

under Section 482 is attracted even if the
offence is non-compoundable.

.

16.3. In forming an opinion whether a

criminal proceeding or complaint should be
quashed in exercise of its jurisdiction

under Section 482, the High Court must
evaluate whether the ends of justice would
justify the exercise of the inherent power;

16.4. While the inherent power of the
High Court has a wide ambit and plenitude
it has to be exercised; (i) to secure the

ends of justice or (ii) to prevent an abuse

of the process of any court;

16.5. The decision as to whether a

complaint or First Information Report
should be quashed on the ground that the
offender and victim have settled the

dispute, revolves ultimately on the facts

and circumstances of each case and no
exhaustive elaboration of principles can be

formulated;

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

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…9…

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;

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…10…

16.9. In such a case, the High Court may
quash the criminal proceeding if in view of

.

the compromise between the disputants,

the possibility of a conviction is remote
and the continuation of a criminal

proceeding would cause oppression and
prejudice; and

16.10. There is yet an exception to the

principle set out in propositions 16.8 and
16.9 above. Economic offences involving
the financial and economic well-being of

the state have implications which lie

beyond the domain of a mere dispute
between private disputants. The High
Court would be justified in declining to

quash where the offender is involved in an
activity akin to a financial or economic

fraud or misdemeanour. The consequences
of the act complained of upon the financial

or economic system will weigh in the
balance.

7. As per the ratio of law laid down by the Apex

Court in the judgment ibid, the inherent powers to quash

criminal proceedings should be exercised to secure the ends

of justice or to prevent the abuse of process of any Court.

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…11…

Also that, criminal proceedings should be quashed in those

cases where the possibility of conviction is remote and the

.

continuation of the criminal proceedings would cause

oppression and prejudice to the accused. There should be

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 even if the victim or the family of

the victim, have settled the dispute. It has further been

held in this judgment that such offences are not private in

nature but have serious impact upon the society also. The

decision to continue with the trial in such cases is founded

on the overriding element of public interest in punishing the

persons for serious offences.

8. Such being the legal position, in normal

circumstances, this petition would have not been

entertained in view of non-compoundable offence of

heinous and serious in nature having allegedly been

committed by the accused-petitioner No.1. The offence

under Section 376 IPC allegedly committed by him is not

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…12…

only against the victim, but the commission of such an

offence has repercussion in the society at large also.

.

Hon’ble the Apex Court in Parbatbhal Aahir’s, case cited

supra, has emphasized that when the parties have reached

at some settlement on the basis whereof the petition for

quashing the criminal proceedings is filed, the guiding

factor would be to secure (i) ends of justice or (ii) to

prevent abuse of process of any Court. While exercising

the powers, the High Court is to form an opinion to achieve

either of the above two objectives.

9. Also that, while exercising its powers, the High

Court is to examine as to whether the possibility of

conviction is there in case criminal proceedings are allowed

to continue. In those cases where chances of conviction

are remote and bleak, the continuation of criminal

proceedings may put the accused to great oppression and

prejudice and extreme injustice as well as prejudice would

be caused to him by allowing the proceedings to continue.

Not only this, it has also been emphasized in this judgment

that where the offences are purely private in nature and do

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…13…

not concern with public policy, the power to quash the

proceedings involving non-compoundable offences on the

.

basis of compromise can be exercised.

10. Now if coming to the given facts and

circumstances, true it is that the offence under Section 376

IPC allegedly committed by the accused-petitioner is not

only grievous but heinous in nature also. Such an offence

when on one hand is private in nature as petitioner No.1-

complainant is the victim, the same, on the other hand, has

serious impact also upon the society at large. The

mitigating circumstances herein, however, are that accused

petitioner No.1 and complainant-petitioner No.2 were in

love with each other since long and had acquaintance with

each other. On accused-petitioner No.1 going to pursue his

higher studies, the complainant-petitioner No.2 might have

registered the FIR against him on account of insecurity and

also the loss of his company. She was keen to solemnize

marriage with him. It is, therefore, visited by such adverse

circumstances, the FIR came to be registered at her

instance against accused-petitioner No.1. He has been

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…14…

enlarged on bail by this Court vide order Annexure A-4

passed in an application under Section 438 Cr. P.C.

.

Complainant-petitioner No.2 is now not going to depose

against him any further as stated by her in the statement

recorded separately. She has solemnized marriage with

petitioner No.1 as per the documents Annexure A-1 and

A-2. She is major and even at the time of registration of

the FIR and the solemnization of marriage also, she was

major and, therefore, accused-petitioner No.1, being 21

years of age, is also major. It has come in their statements

that not only the parents of accused-petitioner No.1, but

also that of complainant-petitioner No.2 are happy with

their marriage.

11. In the light of such mitigating circumstances, it

would be harsh and oppressive not only to accused-

petitioner No.1 but also to complainant-petitioner No.2 in

case criminal proceedings are allowed to continue. Support

in this regard can also be drawn from the judgment dated

9.3.2018, passed by the High Court of Punjab and Haryana

in CRM-M No.3577-2018, titled Lovely Vs State of

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…15…

Punjab and another. Even this Court has taken similar

view of the matter in Cr. MMO No.139 of 2018, titled Sahil

.

Chaudhary Vs. State of H.P. and another, decided on

26.5.2019.

12. Above all, the proceedings in the case are at

initial stage, as Challan has also not yet been filed in the

Court. Therefore, when the settlement has been arrived at

between the parties immediately after the commission of

the alleged offence, liberal approach is required to be taken

in this matter. Accused petitioner No.1 and complainant-

petitioner No.2 have solemnized marriage with each other

and they are living happily as husband and wife in the

matrimonial home. Accused-petitioner No.1, in his

statement recorded separately, has undertaken to make the

life of complainant-petitioner No.2 comfortable in the

matrimonial home. His father present in the

Court has also supported the same. The quashing of

criminal proceedings in this case, therefore, is in the better

interest of both the petitioners.

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…16…

13. For all the reasons hereinabove and in the

peculiar facts and circumstances of the present case, as

.

discussed hereinabove, this petition is allowed.

Consequentially, FIR No.118 of 2019 Annexure A-3

registered against accused petitioner No.1 in Police Station,

Karsog, District Mandi, under Section 376 IPC is quashed

and set aside. The petition stands disposed of accordingly.

October 18, 2019 (Dharam Chand Chaudhary),

(ss) Judge.

22/10/2019 20:24:49 :::HCHP

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