Himachal Pradesh High Court

Decided On: 19.03.202 vs State Of H.P. And Anr on 19 March, 2021

Bench: Chander Bhusan Barowalia

                                                 1



    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                                           .
                                                Cr. MMO No. 143 of 2021





                                                Decided on: 19.03.2021
    _________________________________________________________
    Rohit Kumar & anr.
                                                                 .....Petitioners





                                       Versus
    State of H.P. and anr.
                                              ......Respondents
    _______________________________________________________________
    Coram





    The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
    1
     Whether approved for reporting? Yes.
    For the petitioners:        Ms. Leena Guleria, Advocate.
    For the respondents:         Mr. S.C. Sharma and Mr. P.K.

                                 Bhatti, Addl. AGs, for respondent

                                 No. 1.
                                 Mr. Lalit K. Sehgal, Advocate,
                                 for respondent No. 2.
    ____________________________________________________________



    Chander Bhusan Barowalia, Judge (oral)

The instant petition, under Section 482 of the

Code of Criminal Procedure (hereinafter to be called as "the

Code"), has been maintained by the petitioners for quashing

of F.I.R No. 360, dated 26.09.2020, under Sections 324, 323,

504 and 34 of the Indian Penal Code (hereinafter to be called

as "IPC"), registered at Police Station Sadar-Una, District Una,

H.P., alongwith all consequent proceedings arising out of the

said F.I.R., pending before the learned trial Court.

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

petition are that on 26.09.2020, the complainant (respondent

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

No. 2 herein) made a complaint to the police, wherein it has

been alleged that the accused persons are his brothers and he

is living separately from them, but on one pretext or the other

his brothers keep harassing his family and today they made

allegations against his wife that she took their 700/- Rupees.

As per the complainant, the petitioners also abused his wife

and when he reached at the spot and asked what is going on,

the petitioners attacked him with "Darat", owing to which, he

sustained injuries. On the complaint of complainant, F.I.R No.

360, dated 26.09.2020, under Sections 324, 323, 504 and 34

of IPC, came to be registered against the petitioners.

However, now the parties have compromised the matter and

in order to maintain their relations cordial, they do not want to

pursue the case against each other. Hence, the present

petition.

3. Ms. Leena Guleria, learned counsel for the

petitioners has argued that as the parties have compromised

the matter vide Compromise Deed (Annexure P-2), no

purpose will be served by keeping the proceedings alive,

hence, the FIR, alongwith consequent proceedings arising out

of the same, pending before the learned trial Court, may be

quashed and set aside.

4. Mr. Lalit K. Sehgal, learned counsel appearing on

behalf of respondent No. 2 has argued that the present

petition may be allowed, in view of the compromise arrived at

between the parties.

5. Learned Additional Advocate General has argued

that taking into consideration the offence committed by the

petitioners, the present petition deserves dismissal.

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 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

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

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.

    Jitendra
                   r           to

Their Lordships of the Hon'ble Supreme Court in

Raghuvanshi and others

Raghuvanshi and another, (2013) 4 SCC 58, have held that vs. Babita

criminal 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 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 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 :

"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; 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 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. Thus, taking into consideration the law as discussed

hereinabove and the the fact that the parties have arrived at

compromise vide Compromise Deed (Annexure P-2) and do not

want to proceed further with the case in order to maintain their

relations cordial, I find that the interest of justice would be met,

in case, the proceedings are quashed.

12. Accordingly, looking into all attending facts and

circumstances, this Court finds that present is a fit case to

exercise jurisdiction vested in this Court, under Section 482 of