IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.41 of 2019
Date of decision: 24.09.2019
.
Ravi Goyal and another …Petitioners.
Versus
State of Himachal Pradesh others …Respondents
Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the Petitioners: Mr.P.P. Chauhan, Advocate.
Petitioners Ravi Goyal and Vinita Phutela Goel
r are present in person.
For the Respondents: Mr.S.C. Sharma Additional Advocate General.
Vivek Singh Thakur, Judge (oral)
The instant petition, under Section 482 of the Code of Criminal
Procedure (herein after referred to as ‘SectionCr.PC’) has been filed by petitioners,
for quashing FIR No. 205, dated 31.7.2018 registered at P.S. Pinjore, District
Panchkula, Haryana, which was transferred to Women Police Station, Baddi,
where it was converted into case FIR No. 28 of 2018 dated 1.8.2018, under
Section 376 of the Indian Penal Code (herein after referred to as ‘SectionIPC’) and
criminal proceedings initiated in pursuance thereto.
2. Today petitioner No.1 Ravi Goyal and petitioner No.2 Smt.
Vinita Phutela Goyal, present in person, have been identified by Mr. P.P.
Chauhan, Advocate and their statements have been recorded on oath.
3. Petitioner No.1 in his statement deposed that his father has
expired and he is living with his mother and unmarried sister, whereas his
1
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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another sister has been married and he is only son of his parents. He has
stated that he is serving in Pharmaceutical Company i.e. Legency Remedies
Pvt. Ltd and petitioner No. 2 is also serving in Pharmaceutical Company i.e.
.
Scott-Edil Pharmacia Baddi. He has further stated that in March, 2018 he
and Vinita were deputed by their respective companies to attend a meeting
at Chandigarh related to audit of companies and during that meeting, they
had introduction with each other and thereafter, they kept on meeting and
intimacy developed between them and finally they decided to marry each
other and thereafter they had also developed physical relations, but, later on
in July, 2018 his mother had refused to accept their relations and marriage
and the said fact was communicated by him to Vinita, which created
misunderstanding that he is not inclined to marry her and resulted in lodging
of FIR No. 205 dated 31.7.2018 in P.S. Pinjore, District Panchkula (Haryana)
which was transferred to Women Police Station, Baddi, where it was
converted into case FIR No. 28 of 2018 dated 1.8.2018 under Section 376
IPC. He has also stated that after registration of FIR, he again met petitioner
No.2 Vinita and clarified the situation that it was his mother who was not
ready to accept the relations, but it did not mean that he was not keen to
keep his promise to marry petitioner No.2, but at that time, investigation
was in progress and by the time, he and petitioner No.2 married each other
on 12th October, 2018 in Shiv Mandir, Parsuram Bhawan, Lower Karari,
Kalka and challan had been presented in Court on completion of
investigation. It is also stated by petitioner No.1 that he has married
petitioner No.2 with his free will, consent and without any pressure, coercion
or threat as it was his own decision to marry her and he never intended to
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violate her person with criminal intent or to cheat her but in good faith with
commitment to marry her and now, after solemnization of marriage on 12th
October, 2018, they are residing under one and same roof along with his
.
mother and one unmarried sister and his second sister, who is married, has
also accepted their marriage and he is keen and duty bound and also
intend to maintain petitioner No.2 and keep her happy and to provide her all
amenities of life and further clarified that now misunderstanding between
them stands removed and petitioner No.2, who is his wife, has no complaint
against him and on this she also does not want to continue with criminal
proceedings pending against him before the trial Court on the basis of FIR
lodged by her. He has also stated that he has deposed in Court out of his
free will and consent and also without any fear, threat, pressure or coercion.
4. Petitioner No. 2 Vinita Phutela Goyal in her statement, has
deposed that she is also serving in Pharmaceutical Company i.e. Scott-Edil
Pharmacia Baddi and petitioner No.1 Ravi Goyal is her husband. She has
endorsed the statement of petitioner No. 1 to be true and correct. She has
stated that in July 2018, after developing intimate relations with her, when
Ravi Goyal (petitioner No.1) had intimated her that their relations are not
acceptable to his mother and she was not agreeing for their marriage, she
gathered the impression that Ravi Goyal is not keen to keep his words and
was trying to deceit her, whereupon, she had immediately lodged the FIR,
as referred in statement of petitioner No.1. She has further stated that later
on, petitioner No.1 not only assured her that he was ready and willing to
marry her, but has also solemnized marriage on 12 th October, 2018 after
getting the consent of his mother and now, after marriage, she is residing
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with petitioner No.1 as his wife along with his mother and unmarried sister
and therefore, she feels that her impression that he is cheating her, was
wrong and further stated that continuation of criminal proceedings will
.
definitely create an awkward situation for her when she would be deposing
against her husband, which would definitely have adverse impact on their
matrimonial life and continuation of criminal proceedings will not only harm
petitioner No.1 but also her life and in these aforesaid circumstances, she is
praying for compounding of case and closing the criminal proceedings after
quashing FIR and also stated that she is interested for quashing of FIR and
criminal proceedings pending against her husband for betterment of her life
as well as welfare of her husband and her in-laws. She has also stated that
she has deposed in this Court out of her free will, consent and without any
external pressure, coercion or threat of any kind.
5. Considering peculiar facts and circumstances of present case,
petition has been opposed on behalf of respondent No. 1-State on the
ground that it is not maintainable as in investigation a case under Section
376 IPC is made out and on the basis of challan presented in Court trial is
pending consideration of Court. It is also contended on behalf of
respondent/State that petitioner No.1 is not entitled to invoke inherent
jurisdiction of this Court to exercise its power, keeping in view the nature of
crime, for quashing of FIR with respect to an offence heinous in nature and
not compoundable under Section 320 Cr.P.C.
6 It is a case of peculiar nature where complainant/petitioner
No.2 and accused/petitioner No.1 are now residing under one and same
roof as husband and wife. In fact it appears from their statements, recorded
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on oath, that petitioner No.1, without taking into confidence his mother, had
developed intimacy with petitioner No.2 with intention to marry her, which
has led to physical relations with each other, however, thereafter, on
.
consultation, mother of petitioner No.1 had refused to accept this relation
which was communicated by petitioner No.1 to petitioner No.2 whereupon,
and rightly so, petitioner No.2 had gathered impression that petitioner No.1
was not inclined to marry her and had developed physical relations with her
in deceitful manner and had cheated her and, consequently, it had resulted
into registration of FIR against petitioner No.1. However, thereafter, on
removal of misunderstanding and acceptance of relations by mother of
petitioner No.1, they (petitioners No. 1 and 2) have solemnized marriage on
12th October, 2018 in Shiv Mandir, Parsuram Bhawan, Lower Karari, Kalka in
accordance with Hindu rites and rituals and now petitioner No.2 is residing
with in-laws along with her husband/petitioner No.1 and has prayed for
quashing of FIR and criminal proceedings pending against her husband for
betterment of her life as well as welfare of her husband and in-laws.
7. It is apt to record herein that a three Judges Bench of the Apex
Court in Gian Singh Vs. State of Punjab and Others reported in (2012) 10
SCC 303, explaining that High Court has inherent power under Section 482
of the Code of Criminal Procedure with no statutory limitation including
Section 320 Cr.P.C., has held that these powers are to be exercised to
secure the ends of justice or to prevent abuse of process of any Court and
these powers can be exercised to quash criminal proceedings or complaint
or FIR in appropriate cases where offender and victim have settled their
dispute and for that purpose no definite category of offence can be
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prescribed. However, it is also observed that Courts must have due regard
to nature and gravity of the crime and criminal proceedings in heinous and
serious offences or offence like murder, rape and dacoity etc. should not be
.
quashed despite victim or victim family have settled the dispute with
offender. Jurisdiction vested in High Court under Section 482 Cr.P.C. is held
to be exercisable for quashing criminal proceedings in cases having
overwhelming and predominatingly civil flavour particularly offences arising
from commercial, financial, mercantile, civil partnership, or such like
transactions, or even offences arising out of matrimony relating to dowry
etc., family disputes or other such disputes where wrong is basically private
or personal nature where parties mutually resolve their dispute amicably. It
was also held that no category or cases for this purpose could be prescribed
and each case has to be dealt with on its own merit but it is also clarified
that this power does not extend to crimes against society.
9 The Apex Court in Parbatbhai Aahir alias Parbathbhai
Bhimsinghbhai Karmur and others vs. State of Gujarat and another,
(2017)9 SCC 641 summarizing the broad principles regarding inherent
powers of the High Court under Section 482 Cr.P.C. has recognized that
these powers are not inhibited by provisions of Section 320 Cr.P.C.
10. The Apex Court in case Narinder Singh and Ors. Vs. State of
Punjab and Others reported in (2014) 6 SCC 466 and also in State of
Madhya Pradesh Vs. Laxmi Narayan and Others (2019) 5 SCC 688 has
summed up and laid down principles, by which the High Court would be
guided in giving adequate treatment to the settlement between the parties
and exercise its power under Section 482 of the Code while accepting the
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settlement and quashing the proceedings or refusing to accept the
settlement with direction to continue with criminal proceedings.
11. No doubt Section 376 IPC is not compoundable under Section
.
320 Cr. P.C. However, as explained by Hon’ble Supreme Court in Gian
Singh’s and Narinder Singh’s cases supra, power of High Court under
Section 482 Cr.PC is not inhibited by the provisions of Section 320 Cr.P.C.
and FIR as well as criminal proceedings can be quashed by exercising
inherent powers under Section 482 Cr.PC, if it is warranted in given facts
and circumstances of the case for ends of justice or to prevent abuse of the
process of any Court, even in those cases which are not compoundable
where parties have settled the matter between themselves.
12. In present case, petitioner No.2/complainant also appeared in
person in this Court and her statement, as discussed in para 4 supra, has
also been recorded in this Court, wherein she has expressed her desire to
close the proceedings against the petitioner.
13. It is true that as a matter of principle, quashing of FIR on the
basis of compromise should not be permitted in case of heinous crime like
Section 376 IPC for the reason that said crime is against the society having
adverse impact on it and also that possibility of compromise under any kind
of pressure, threat or coercion cannot be ruled out in such cases as victims
normally belong to the weaker class. But in given facts and circumstances
of the present case, where offence of rape is made out because of the fact
that a young girl, apprehending cheating has lodged FIR and now again
residing in her matrimonial house with petitioner-accused, it cannot be
compared with other cases.
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14. Observation of the Coordinate Bench of this Court in similar
case decided on 12.01.2017 in Cr.MMO No. 385 of 2016, titled as Chander
Vir Kaundal vs. State of H.P., would also be relevant, where it is recorded
.
that looking at the case from another angle, since the petitioner has
solemnized marriage with respondent, obviously, there is no possibility of
her supporting the charge in case the petitioner is put to trial. Therefore, in
such circumstances, the continuation of criminal proceedings would only
cause untoward torture or harassment apart from creating undue social and
psychological pressure upon the private parties and it will be an extremely
sad story in case complainant is called in the witness box to depose against
the accused, who is none other than her husband.
15. In present case also, deposition of victim in the Court in
consonance with prosecution case would lead to landing her husband in jail
and pushing her in pitch dark whereas retracting from her earlier version
may put her in unnecessary trouble.
16. Learned counsel for the accused-petitioner has also referred to
judgments passed by the Coordinate Benches in Cr.MMO No. 301 of 2018,
decided on 24.04.2019, titled as SectionAsha Devi others vs. State of Himachal
Pradesh another; Cr.MMO No. 399 of 2018, decided on 18.09.2018, titled
as SectionKajal another vs. State of Himachal Pradesh another; and Cr.MMO
No. 244 of 2019, decided on 07.05.2019 titled as X vs. State of H.P.
others and Criminal Miscellaneous (Main) No. 139 of 2018, decided on
26.5.2018, titled SectionSahil Chaudhary vs. State of H.P. and another wherein
FIRs registered under Section 376 IPC read with provisions of POCSO Act
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have been quashed in similar circumstances where victims and accused
had married to each other.
17. The ratio of law laid down by the Apex Court on the issue of
.
permitting the compromise and quashing of FIR in all cases, the Courts
must consider the interest of public at large and the offence offending the
Society at large should not be permitted to be compromised and quashing of
FIR or criminal proceedings on the basis of such compromise should not be
permitted. Present case is somewhat different from general category, as in
present case, it is not on the basis of compromise that quashing of FIR has
been sought for, but it is a case where interest of victim is also involved and
welfare of victim appears to be in closing criminal proceedings as she has
proclaimed herself to be wife of accused and the case is registered against
petitioner-accused, only for the reason that at that time victim apprehended
cheating and further, it is not a case where it can be said that victim was
abducted forcefully and ravished mercilessly and was used as an instrument
of enjoyment and thrown out after the use but it is a case where sexual
intercourse was consensual and now victim is living in her matrimonial
house happily. Now in the facts and circumstances of the case, this case
cannot be termed as a case subjecting the victim-complainant forcibly to
illicit sexual intercourse. Further, it is a peculiar kind of case where there is
a conflict between interest of victim and societal interest. Interest of victim is
not purely private in nature as rehabilitation and survival of victim is another
issue which involves public interest because to ensure rehabilitation and
provide resources for survival of victim is also responsibility of society.
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Considering entire facts and circumstances of the case, in my opinion,
balance lies in favour of the prayer of the victim.
18 Family is a primary unit of society, which gives protection to all
.
family members. Therefore, there is always endeavour to save the family. By
saving a family, we definitely save the fabric of society and thus any
endeavour to save the family is also interest of society. Therefore, in present
case, there is conflict of interest not only between victim and societal interest
but also amongst divergent societal interest i.e. to continue proceedings for
commission of an offence having adverse impact on the society and to save
the family in larger interest of society.
19. SectionIn Madan Mohan Abbot vs. State of Punjab, (2008)4 SCC
582 the Hon’ble Supreme Court emphasized and advised that in the matter
of compromise in criminal proceedings, keeping in view of nature of this
case, to save the time of the Court for utilizing to decide more effective and
meaningful litigation, a commonsense approach, based on ground realities
and bereft of the technicalities of law, should be applied.
20. Therefore, in peculiar facts and circumstances of the present
case, I am of the considered opinion that interest of justice shall be served in
quashing the FIR as well as criminal proceedings pending against petitioner-
accused.
21. Keeping in view the ratio of law laid down by the Hon’ble Apex
Court and considering peculiar facts and circumstances of the case in its
entirety, present petition is allowed and matter is permitted to be
compounded. Consequently, FIR No. 205 of 2018, dated 31.7.2018
registered at P.S. Pinjore, District Panchkula, Haryana, which was
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transferred to Women P.S. Baddi, where it was converted into case FIR No.
28 of 2018 dated 1.8.2018 is quashed. Consequent to quashing of FIR,
criminal proceedings, pending in the concerned Court also stand quashed.
.
22. Petition stands disposed of in the aforesaid terms, so also
pending applications, if any.
(Vivek Singh Thakur),
th
24 September, 2019 Judge.
(ms)
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