Decided On:3Rd August vs State Of Himachal Pradesh & Ors
2021 Latest Caselaw 3421 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MMO No. 330 of 2021.

Decided on:3rd August, 2021.

_________________________________________________________ Bantu Ram ...Petitioner.

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Versus

State of Himachal Pradesh & ors. ...Respondents. _______________________________________________________________ Coram

The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.

_________________________________________________________ For the petitioner: Mr. Neeraj K. Sharma, Advocate. For the respondents: Mr. Arvind Sharma, Mr. P.K. Bhatti,

Mr. Bharat Bhusan, Addl.

Advocate Generals, Mr. Amit Kumar Dhumal, Dy. Advocate General and Mr. Manoj Bagga, r Assistant Advocate General, for

respondent No.1.

Mr. Daleep Chand and Ms. Ishita Choudhary, Advocates, for respondents No.2 and 3.

_________________________________________________________ Chander Bhusan Barowalia, Judge

The present petition is maintained by the petitioner

under Section 482 of the Code of Criminal Procedure

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

No.42 of 2017, dated 11.4.2017, under Sections 363, 366A, 376

(2) (i) 506 of the Indian Penal Code, Section 6 of the Protection

of Children from Sexual Offences Act and Section 3 (2) (V)

Scheduled Caste and Scheduled Tribe Act (Prevention of

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

Atrocities) Act, 1989, registered at Police Station Khundian,

District Kangra, H.P.

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

petition, as per the prosecution story, are that respondent No.2

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solemnized marriage with Smt. Shanti Devi, in the year 2011, as

per Hindu rites and customs. Smt. Shanti Devi's first marriage

was solemnized with Raju son of Shr. Gurdabbaru, resident of

Village Jaloan (Sarni), Post Office Paraisi, Tehsil Karsog, District

Mandi, but they got divorced, who had a boy, namely, Meena

Ram and a girl prosecutrix (name withheld), when respondent

No.2 married with Smt. Shanti Devi, both children are residing

with him. At the time of occurrence, respondent No.3 studied

in 9th standard. On 9.4.2017, in the morning, when respondent

No.1 with his wife Smt. Shanti Devi, woke up, respondent No.2

was not present in her room, when they were searched, she

was not found. Respondent No.1 telephonically call to her

mobile number 9857803669, told that a boy, namely, Ravi

Kumar has taken away, on asking her, she did not know the

address of Ravi's house and also did not tell the whereabouts

and thereafter disconnected the phone. Respondent No.1

fully assured that her daughter was carried away by Ravi

Kumar. Pursuant thereto, statement of respondent No.2

came to the Police Station for lodging FIR against the

petitioner. Now, the parties have entered into a compromise,

vide Compromise Deed (Annexure P-6) dated 26th April, 2021,

petitioner and respondent No.3 are married with whom they

are living happily. Hence, the present petition.

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3. Learned counsel for the petitioner has argued

that as the parties have compromised the matter, no

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.

submits 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.

Joshi 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 section 482 have no

limits. Of course, where there is more power, it becomes

necessary to exercise utmost care and caution while

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invoking such powers. Their Lordships have held as under:

[6] In Pepsi Food Ltd. and another v. Special Judicial Magistrate and

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 Article 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

Preeti 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

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uncommon. At times, even after the conclusion of the

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 Inder 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 section 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

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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 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

Jitendra Raghuvanshi and others vs. Babita Raghuvanshi and

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

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proceedings or FIR or complaint can be quashed under

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 406 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

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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 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 Article 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

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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, Indore."

10. Similarly, Hon'ble Supreme Court in Parbatbhai

Aahir alias Parbatbhai Bhimsinhbhai Karmur and others vs. State

of Gujarat and another, (2017) 9 Supreme Court Cases 641,

wherein it has been held as under :

r "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 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;

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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 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

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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.

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

petitioner and respondent No.3 have solemnized their marriage

out of their free will and volition and a 'marriage certificate'

(Annexure P-3) 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 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 as

also respondent No.3.

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

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

jurisdiction vested in this Court, under Section 482 of the

Code and accordingly F.I.R No. 42 of 2017, dated 11.4.2017,

under Sections 363, 366A, 376 (2) (i), 506 of the Indian Penal

Code, Section 6 of the Protection of Children from Sexual

Offences Act and Section 3 (2) (V) Scheduled Caste and

Scheduled Tribe Act (Prevention of Atrocities) Act, 1989,

registered at Police Station Khundian, District Kangra, H.P, is

ordered to be quashed and consequently, the proceedings

pending before the learned Trial Court, arising out of the

aforesaid FIR, are also ordered to be quashed.

14. It is stated by Mr. Neeraj Sharma, learned counsel

for the petitioner that the petitioner is presently lodged in

District Jail, Dharamshala District Kangra. He has prayed that as

the FIR against the petitioner is now stands quashed, he be

released forthwith in this case. Considering the prayer made

by the learned counsel for the petitioner and the fact that FIR

No.42 of 2017, dated 11.4.2017, now stands quashed, it is

ordered that the petitioner-accused be released forthwith in

this case, if not required in any other case.

15. The petition is accordingly disposed of alongwith

pending applications, if any.

(Chander Bhusan Barowalia)

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                                                Judge





     3rd August, 2021
     (CS)





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