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Vivek Dhiman vs State Of Himachal Pradesh & Others on 23 December, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No. 416 of 2019

Date of decision: 19.12.2019

.

Vivek Dhiman. …Petitioner.
Versus
State of Himachal Pradesh others. …Respondents

Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1

For the Petitioner: Mr.N.K. Thakur, Senior Advocate with Mr.Divya
Raj Singh Thakur, Advocate.

For the Respondents: Ms.Rameeta Rahi, Additional Advocate
r General, with Mr.Kamal Kant and Ms.Seema
Sharma, Deputy Advocate General, for

respondent No. 1.

Mr.Parmod Kumar and Mr.Arun Kumar,
Advocates, for respondents No. 4 and 5 with

respondent No. 4 Mr.Satpal Sharma, present in
person.

Vivek Singh Thakur, Judge (oral)

This petition has been filed against the order passed by

learned Judicial Magistrate 1st Class, Court No. II, Amb in Criminal Case No.

11-IV-017, whereby cancellation report submitted by Police in case FIR No.

165 of 2016, under Section 420, Section494, Section199, Section506-B and Section120-B of IPC, has

been accepted.

2. During pendency of present petition, after having dialogue with

persuasion of learned counsel for the parties, parties have arrived at mutual

settlement for closing all civil and criminal matters, pending between them.

Apart from aforesaid FIR, petitioner has also filed a petition under Section 9

of Hindu Marriage Act against respondent No. 2 Deepika Sharma for

restitution of conjugal rights, which is pending in Civil Courts, Amb, District

Una, H.P. and fixed for 8.1.2020.

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

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2 Cr. MMO No. 416 of 2019

3. Respondent No. 2 Deepkia Sharma has filed a Civil Suit

bearing No. 67-1 of 2015 against petitioner for declaring marriage certificate

16/M/13 dated 13.11.2013 as null and void and this suit is also pending for

.

8.1.2020 in Civil Courts, Amb, District Una and an FIR bearing No. 294 of

2014, dated 6.7.2014 under Section 365 IPC has also been lodged by

respondent No. 4 Satpal Sharma against petitioner Vivek Dhiman and his

family members at Police Station, Sagarpur, New Delhi, trial wherein is

pending in the Court of Metropolitan Magistrate, Patiala House Courts,

Delhi and fixed for 4.3.2020.

4. Petitioner Vivek Dhiman has also filed a petition in Delhi High

Court for quashing of the said FIR, which is pending and fixed for 14.1.2020.

5. Petitioner Vivek Dhiman as well as respondent No. 4 Sat Pal

Sharma, who is also Special Power of Attorney holder of respondent No. 2

Deepika Sharma, are present in person, who have been duly identified by

their respective counsel representing them and today their statements, on

oath, have also been recorded and copy of memorandum of

understanding/settlement arrived at between the parties and copies of

affidavits sworn in support thereof by petitioner Vivek Dhiman and

respondent No. 4 Satpal Sharma have also been taken on record as Ex. PA,

Ex. PB and Ex. PC, respectively. Respondent No. 4 Sat Pal Sharma has

also filed a separate affidavit, endorsing the compromise arrived at between

the parties which is taken on record.

6. Terms and conditions of memorandum of

understanding/settlement read as under:-

“1. That second party and his associates got marriage
certificate bearing No. 16/M/13 dated 13.11.2013 by Sub
Divisional Magistrate/Marriage Registration Officer Amb,
Distt. Una (HP) fraudulently and cheating and same be
cancelled.

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3 Cr. MMO No. 416 of 2019

2. That no such marriage even conducted by Deepika
Sharma and as such the above said marriage certificate
is bad in law and will be null and void.

.

3. That the Dipika Sharma (niece of the first party) giving no

objection certificate to second party to free life of Dipika
Sharma related to this marriage certificate. That the

Dipika Sharma also appear before the Hon’ble High Court
of Himachal Pradesh, Shimla in case bearing No. CR.WP
No. 23/2014 wherein the Dipika Sharma declared that the
marriage certificate was procure by in wrong method

hence the Dipika Sharma is not living as a wife and
husband therefore the marriage certificate would be

cancelled.

4. That Dipika Sharma was got married with the Deepak
Kumar Sharma on 05.02.2015 as per the Hindu rites and
customs and one female child was born out from this

wedlock and presently Dipika Sharma is permanent
resident at Austria with her family.

5. That Dipika Sharma giving ‘no objection certificate’ to the

second party to free from her life related to the above

said marriage certificate.

6. That Dipika Sharma also given a Special Power of

Attorney to the second party to handle all case on her
behalf before the court of law in the NCT of Delhi or
elsewhere in India.

7. That the second party will not take any blame or claim to
the first party or Dipika Sharma or their associate and
similarly the second party or Dipika Sharma or their
associate will not take any claim or blame to the second
party in the past, present and future.

8. That the first party and the second party will withdraw all
cases pending in NCT Delhi or in Himachal Pradesh and
both the parties will cooperate with each other for
withdrawing the all cases relating to the said Marriage
Certificate without any condition whatsoever.

9. That both the parties giving no objection certificate to
each other to free from life of each other related to the
above said marriage certificate or any other ills.”

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4 Cr. MMO No. 416 of 2019

7. In his statement respondent No. 4 Satpal Sharma, has

endorsed the aforesaid settlement by stating that he is paternal uncle of

respondent No. 2 Deepika Sharma, daughter of Sh. Akshea Kumar Sharma

.

and is pursuing criminal and civil cases on behalf of her, being holder of

Power of Attorney executed by her (Deepika Sharma) in his favour and he is

duly authorized and competent to depose on her behalf also.

8. Respondent No. 4 has stated that dispute between the

contesting parties had arisen on the claim set up by petitioner Vivek Dhiman

that he and respondent No. 2 Deepika Sharma have solemnized marriage

on 5.10.2013 and a marriage certificate bearing No. 16/M/13 dated

13.11.2013 was produced by him in that regard and later on petitioner Vivek

Dhiman had filed a Habeas Corpus petition bearing Criminal Writ Petition

No. 23 of 2014 in the High Court Himachal Pradesh, wherein Deepika

Sharma, on her appearance, had denied the solemnization of marriage with

petitioner Vivek Dhiman and had chosen to live with her parental family and

thereafter she was married to respondent No. 3 Deepak Sharma on

5.2.2015 as per Hindu rites and rituals and now respondent No. 2 Deepika

Sharma is residing with her husband at Austria and the couple has been

blessed with one female child.

9. Respondent No. 4 has further stated that during aforesaid

controversy, he had also lodged an FIR No. 294 of 2014, dated 6.7.2014

under Section 365 of IPC, at Police Station Sagarpur, New Delhi, against

petitioner Vivek Dhiman, his father Raj Kumar and his sister Pooja and

others, wherein, after investigation, challan has been presented in the Court

and trial in that case No. 835 of 2019 is going on in the Court of Ms.Shreya

Aggarwal, Metropolitan Magistrate, Patiala House Courts, New Delhi and

when it was fixed for hearing on 18.12.2019, he had appeared in the Court

of Ms.Shreya Aggarwal, Metropolitan Magistrate, Patiala House Court, New

Delhi in that case and in view of settlement between the parties, he had

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5 Cr. MMO No. 416 of 2019

made statement in that Court that the dispute between parties was being

compromised, whereupon that case has been adjourned by that Court for

4.3.2020 and in view of compromise arrived at between the parties, he will

.

make statement in Delhi High Court on 14.1.2010, for allowing the petition in

terms of the compromise for quashing FIR No. 294 of 2014, registered in

Police Station Sagarpur, New Delhi.

10. Respondent No. 4 has also stated that petitioner Vivek Dhiman

has also lodged an FIR No. 165 of 2016, dated 8.12.2016, under Sections

420, Section494, Section199, Section506(B) and Section120(B) IPC in Police Station Gagret, District Una,

H.P. against respondent No. 2 Deepika Sharma, her husband respondent

No. 3 Deepak Sharma, respondent No. 5 Murti Sharma, respondent No. 6

Mohinder Pal and him (respondent No. 4 in present case), wherein

cancellation report submitted by Police after investigation, has been

accepted by the trial Court and the order passed by the Magistrate has been

assailed by the petitioner Vivek Dhiman in present petition.

11. Respondent No. 4 has further stated that petitioner Vivek

Dhiman has also filed a petition HMA No. 18/III under Section 9 of Hindu

Marriage Act against respondent No. 2 Deepika Sharma for restitution of

conjugal rights in Civil Courts, Amb, District Una, H.P. and respondent No. 2

Deepika Sharma has also filed a Civil Suit bearing No. 67-1 of 2015, against

petitioner Vivek Dhiman for declaring the marriage certificate bearing No.

16/M/13, dated 13.11.2013, issued by SDM, Amb with regard to

solemnization of marriage between Vivek Dhiman and Deepika Sharma, on

the basis of statement made by petitioner Vivek Dhiman that Priest of

Temple of Durga Shakti Mandir, Mubarakpur, had solemnized their

marriage, as null and void and the said suit has been filed on the basis of

clarification issued by priest of the Temple that no such marriage was

solemnized in the Temple and petitioner Vivek Dhiman has also filed a

petition bearing No. Cr. MC 835 of 2019 in Delhi High Court for quashing of

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6 Cr. MMO No. 416 of 2019

above referred FIR No. 294 of 2016, which has been fixed for hearing on

14.1.2020.

12. Respondent No. 4 Sat Pal Sharma has further stated that now,

.

to buy peace by settling the dispute between the parties, parties have

decided to close/withdraw all civil and criminal cases, pending in various

Courts, i.e. Civil Courts, Amb, District Una, High Court of Himachal Pradesh,

Delhi High Court and in the Court of Ms.Shreya Aggarwal, learned

Metropolitan Magistrate, Patiala House Court, New Delhi and therefore, they

have compromised the matter and compromise has been reduced into

writing as memorandum of understanding/settlement and he has also sworn

an affidavit in support of said memorandum of understanding/settlement

and, similarly, petitioner Vivek Dhiman has also signed the memorandum

and sworn affidavit in support thereof.

13. He has stated that he being complainant in FIR No. 294 of 2014

and being Special Power of Attorney holder of respondent No. 2 Deepika

Sharma in Civil Suit No. 67-1 of 2015, titled as Deepika Sharma Vs. Vivek

Dhiman, pending in the Court of Civil Judge (Junior Division), Court No. 2,

Amb, is competent to withdraw the Criminal Complaint (FIR No. 294 of

2014) filed by him and also to make statement for disposal of Civil Suit No.

6-1 of 2015 in terms of compromise, subject to withdrawal of Cr.MMO No.

416 of 2019 (present petition) and petition filed by petitioner Vivek Dhiman

under Section 9 of Hindu Marriage Act, pending in Civil Courts, Amb, and

has prayed for deciding the present petition in terms of compromise and

copy of memorandum of understanding/settlement placed on record as Ex.

PA bears his original signature and that of petitioner Vivek Dhiman and it

has been witnessed by Mr.Raj Kumar Dhiman (father of petitioner Vivek

Dhiman) and Janak Raj Dhami cousin of respondent No. 4 and copies of

affidavits sworn by respondent No. 4 and petitioner Vivek Dhiman Ex. PB

and Ex.PC respectively, bear their original signatures also.

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7 Cr. MMO No. 416 of 2019

14. Respondent No. 4 has further stated that as per compromise

now parties will have no claim or complaint, civil or criminal, against each

other and parties have decided to live independent to each other after

.

burying all the impact of past incident.

15. It is also stated by respondent No. 4 that petitioner Vivek

Dhiman has agreed to make statement to pass an order in terms of

compromise in the petition filed by him under Section 9 of Hindu Marriage

Act as well as in the suit preferred by Deepika Sharma for declaring the

marriage/marriage certificate as null and void.

16. Respondent No. 4 has further stated that they have also

decided not to drag each other or any other person(s) related to them in civil

or criminal litigation on the basis of dispute which have been settled by way

of this compromise between the parties and he or Deepika Sharma or any

other person(s) on their behalf shall not raise any issue with respect to the

manner in which the certificate of marriage bearing No. 16/M/13, dated

13.11.2013, was procured by petitioner Vivek Dhiman and he on his behalf

and on behalf of respondent No. 2 Deepika Sharma, (being her Power of

Attorney holder) has undertaken to abide by the terms and conditions of the

Memorandum of Understanding arrived at between the parties and prayer

for disposing of present petition as compromised in aforesaid terms has

been made.

17. Respondent No. 4 has also stated that he has signed the

Memorandum of Understanding/settlement, sworn affidavit in support

thereof and also deposed in this Court today out of his free will, consent and

without any external pressure, coercion or threat of any kind.

18. Petitioner Vivek Dhiman in his statement has endorsed the

memorandum of understanding and statement made by respondent No. 4

Satpal Sharma to be true and correct and has also undertaken to abide by

the terms and conditions of the memorandum of understanding arrived at

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8 Cr. MMO No. 416 of 2019

between the parties. He has also stated that he has signed the

memorandum of understanding/settlement, sworn affidavit in support thereof

and also deposed in the Court out of his free will, consent and without any

.

external pressure, coercion or threat of any kind.

19. 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

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.

20. The Apex Court in Parbatbhai Aahir alias Parbathbhai

Bhimsinghbhai Karmur and others vs. State of Gujarat and another,

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9 Cr. MMO No. 416 of 2019

(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.

.

21. 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

settlement and quashing the proceedings or refusing to accept the

settlement with direction to continue with criminal proceedings.

22. No doubt Sections 365 and Section199 IPC are not compoundable

under Section 320 Cr. P.C. However, as explained by Hon’ble Supreme

Court in Gian Singh’s, Narinder Singh’s, Parbatbhai Aahir’s and Laxmi

Narayan’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.

23. 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.

24. Keeping in view the ratio of law laid down by the Hon’ble Apex

Court and considering facts and evidence of the case in its entirety, parties

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10 Cr. MMO No. 416 of 2019

are permitted to compromise the matter in aforesaid terms, contained in

memorandum of understanding and statement of parties recorded on oath in

the Court.

.

25. Respondent No. 4 Satpal Sharma is directed to produce copy of

this order along with original memorandum of understanding/settlement

arrived at between the parties in the Delhi High Court in petition No. Cr.MC

No. 835 of 2019, filed for quashing of FIR No. 294 of 2016 and also if need

arises in the trial Court i.e. Court of Ms.Shreya Aggarwal, learned

Metropolitan Magistrate, Patiala House Court, New Delhi, in the trial pending

against the petitioner and his family members. Petitioner Vivek Dhiman is

also at liberty to produce certified copy of this order along with documents in

the Courts.

26. Civil Judge at Amb, District Una is directed to dispose of the

petition under Section 9 of Hindu Marriage Act, bearing HMA No. 18/III, titled

Vivek Dhiman Vs. Deepika Sharma, filed by petitioner Vivek Dhiman against

respondent No. 2 Deepika Sharma as well as Civil Suit No. 67-1 of 2015,

titled Deepika Sharma Vs. Vivek Dhiman pending in the Court of Civil Judge

(Junior Division), Court No. 2, Amb, declaring marriage certificate 16/M/13,

dated 13.11.2013 as null and void, in terms of memorandum of

understanding/settlement arrived at between the parties, on production of

copy of this judgment by either party along with copy of order passed by

Delhi High Court/Metropolitan Magistrate, Patiala House Courts, New Delhi

closing the criminal case pending against petitioner, his family members and

others.

Petition stands disposed of in terms of comprise arrived at between

the parties with aforesaid directions, so also pending applications, if any.

Copy Dasti.

(Vivek Singh Thakur),
Judge.

19th December, 2019
(KRS)

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