Himachal Pradesh High Court

________________________________________________________________ vs State Of Himachal Pradesh And ... on 1 March, 2021

Bench: Sandeep Sharma

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                           CrMMO No. 376 of 2020




                                                                     .
                                        Decided on: March 1, 2021





    ________________________________________________________________
    Smt. Monika Kumari                               .........Petitioner
                                  Versus





    State of Himachal Pradesh and another             ...Respondents
    ________________________________________________________________
    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.





    Whether approved for reporting1?
    ________________________________________________________________
    For the petitioner:    Mr. T.K. Verma, Advocate.
    For the respondents: Mr. Sudhir Bhatnagar and Mr. Arvind
                           Sharma, Additional Advocates General
                    r      with Mr. Kunal Thakur, Deputy Advocate

                           General, for respondent No.1.
                           Mr. Amandeep Singh, Advocate, for
                           respondent No.2.
    _______________________________________________________________
    Sandeep Sharma, J. (Oral)

By way of instant petition filed under S.482 CrPC,

prayer has been made on behalf of the petitioner/complainant

(hereinafter, 'complainant') for quashing of FIR No. 144, dated

10.7.2019, under Ss. 504 and 506 IPC and S. 66(C) of the I.T.

Act, registered at Police Station Sadar, Shimla, District Shimla,

Himachal Pradesh against respondent No.2/accused, alongwith

consequent proceedings, if any, on the basis of compromise

arrived inter se parties Annexure P-2).

2. Precisely, the facts of the case are that the

complainant-Monika Kumar lodged the FIR sought to be quashed

Whether reporters of the Local papers are allowed to see the judgment? .

in the instant proceedings alleging therein that the accused

Bhisham Singh, with whom she had intimate relations,

threatened her to upload her personal pictures on the Facebook.

Complainant also alleged that the accused besides extending her

threats also hurled abuses, as such, appropriate action in

accordance with may be taken against the accused. Police, on the

basis of aforesaid complaint made by the complainant, though

registered the FIR, but before the investigation could be

completed, both, complainant and accused entered into

compromise, as such, they have approached this Court in the

instant proceedings, for quashing of the FIR in question as well

as consequent proceedings, if any, in the competent Court of law.

3. This Court, while issuing notice in the instant

petition, deemed it necessary to cause presence of both,

complainant and the accused, so that correctness and

genuineness of the compromise placed on record could be

ascertained. Accordingly, in terms of order dated 23.2.2021, both

the parties have come present. Accused, Bhisham is represented

by Mr. Amandeep Singh, Advocate, who has filed Power of

Attorney on his behalf.

4. Complainant, Monika Kumari, on oath states before

this Court that she, of her own volition and without there being

any external pressure has entered into compromise with the

accused. She stated that the FIR sought to be quashed in the

instant proceedings is outcome of misunderstanding inter se her

and the accused. She further states that since both the parties

have resolved to settle the dispute amicable inter se them, she

has no objection in case FIR sought to be quashed in the instant

proceedings, is quashed and set aside alongwith consequent

proceedings, if any and accused is acquitted. She has identified

her signatures on the compromise. Her statement is taken on

record.

5. Mr. Kunal Thakur, learned Deputy Advocate General

having heard statement made by the complainant, fairly states

that since the complainant and the accused have entered into

compromise, no fruitful purpose would be served in case criminal

proceedings against the accused are allowed to continue. He

further states that otherwise also chances of conviction in the

present case are bleak and remote on account of statement given

by the complainant, and as such, respondent-State shall have no

objection in case prayer made in the present petition is allowed.

6. The question which now needs consideration is

whether FIR in question can be ordered to be quashed when

Hon'ble Apex Court in Narinder Singh and others versus State

of Punjab and another (2014)6 SCC 466 has specifically held

that power under S. 482 CrPC is not to be exercised in the cases

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.

7. At this stage, it would be relevant take note of the

judgment passed by Hon'ble Apex Court in Narinder Singh

(supra), whereby the 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 to 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 criminal proceedings

even in those cases which are not compoundable and 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:

29.1 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 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 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".

8. Careful perusal of para 29.3 of the judgment suggests

that such a power is not to be exercised in the cases 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. Apart

from this, offences 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. On the other hand, those criminal cases having

overwhelmingly and predominantly civil character, particularly

arising out of commercial transactions or arising out of

matrimonial relationship or family disputes may be quashed

when the parties have resolved their entire disputes among

themselves.

9. 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 of quashment 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 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 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 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."

10. Recently the 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

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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 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..."

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"...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:

(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 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;

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(viii) 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;

(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."

11. In the case at hand also, offences alleged to have

been committed by the accused do not involve offences of moral

turpitude or any grave/heinous crime, rather same are petty

offences, as such, this court deems it appropriate to quash the

FIR as well as consequential proceedings thereto, especially

keeping in view the fact that the complainant and accused have

compromised the matter inter se them, in which case, possibility

of conviction is remote and no fruitful purpose would be served in

continuing with the criminal proceedings.

12. Since the matter stands compromised between the

parties and the complainant is no more interested in pursuing

the criminal proceedings against the accused, no fruitful purpose