Himachal Pradesh High Court
Ankaj Kumar Aged 30 Years vs State Of Punjab And Ors. Reported ... on 6 May, 2022
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 6th DAY OF MAY, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 227 OF 2022
BETWEEN:-
1. ANKAJ KUMAR AGED 30 YEARS
SON OF SHRI SANSAR CHAND,
RESIDENT OF V.P.O. SOLDHA,
TEHSIL JAWALI, DISTRICT
KANGRA, H.P.
2. ANCHAL KUMARI AGED 19 YEARS,
WIFE OF SHRI ANKAJ KUMAR,
RESIDENT OF V.P.O. SOLDHA,
TEHSIL JAWALI, DISTRICT
KANGRA, H.P. ....PETITIONERS
(BY SH. GOLDY KUMAR, ADVOCATE.)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HOME) TO
THE GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-171002.
2. SMT.RAJ KUMARI WIFE OF SHRI
SHAMBI SINGH, RESIDENT OF
V.P.O. SOLDHA, TEHSIL JAWALI,
DISTRICT KANGRA, H.P. ....RESPONDENTS
(BY SH. HEMANT VAID,
ADDITIONAL ADVOCATE GENERAL
FOR RESPONDENT NO. 1.)
(BY MS.LEENA GULERIA, ADVOCATE,
FOR RESPODNENT NO. 2.)
Whether approved for Reporting?
This petition coming on for admission this day, the Court
passed the following:
JUDGMENT
The instant petition, under Section 482 of the Code of
Criminal Procedure (hereinafter referred to as 'Cr.PC'), has been filed by
petitioners Ankaj Kumar and Anchal Kumari, on the basis of compromise
arrived at between them and respondent No. 2 Raj Kumari, for quashing
of FIR No. 104 of 2020, dated 18.4.2020, registered in Police Station
Jawali, District Kangra, H.P. under Sections 363, 366, 376, 506 of the
.
Indian Penal Code (in short 'IPC') and Sections 4 of the Protection of
Children from Sexual Offences Act (in short 'POCSO Act') and Section
3(2) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities)
Act, 1989 and consequent proceedings arising thereto.
2.
Petitioners Ankaj Kumar, Anchal Kumari, respondent No. 2
Preeti and Shambi Singh (father of petitioner No. 2 Anchal Kumari) were
present in the Court on 23.4.2022, and were duly identified by their
respective counsel. Their statements, on oath, were recorded
separately and placed on the file.
3. In her statement, respondent No.2 Raj Kumari has stated
that she is mother of petitioner No. 2 Anchal Kumari and on 18th July,
2020, she found her daughter petitioner No. 2 missing from her room
during midnight and, therefore, she lodged FIR in Police Station, but
lateron her daughter returned to home and informed that she left the
house on her own volition in order to solemnize marriage with petitioner
No. 1 Ankaj Kumar, but on revelation that she was three months short to
complete 18 years and marriage could not be solemnized in Mata
Chamunda Devi Temple Dharamshala, she returned home. She has
further stated that thereafter their family and family of petitioner No. 1
Ankaj had decided to solemnize marriage of Anchal and Ankaj on
attaining the age of majority by their daughter Anchal, as date of birth of
Anchal is 25.9.2002 and she had attained the age of majority on
23.9.2020 and, thereafter they arranged the marriage of Anchal with
petitioner No. 1 on 25.4.2021 and the marriage has been registered with
Local Registrar, Death, Birth and Marriage, Gram Panchyat Soldha,
Development Block Nagrota Suriyan, Tehsil Jawali, District Kangra, and,
.
thereafter, name of her daughter has also been entered in Parivar
Register of family of father of petitioner Sansar Singh and after
solemnization of marriage, her daughter is residing happily in their
house and that FIR was lodged for protection of their daughter but later
on they found that she had left the house of her own volition and was not
allured or enticed by petitioner No. 1 Ankaj Kumar and now FIR as well
as criminal proceedings initiated against Ankaj Kumar in pursuant
thereto are coming in the way of happy married life of her daughter and
continuation thereof would be detrimental to the interest of her daughter
and husband of her daughter, therefore, in the interest of her daughter
she has prayed for withdrawal of complaint and FIR as well as criminal
proceedings.
4. Shambi Singh, father of petitioner No. 2 has endorsed
statement of his wife respondent No. 2 Raj Kumari to be true and
correct.
5. In her statement petitioner No. 2 Anchal Kumari has stated
that she is residing in her in-laws house after her marriage and marriage
has been solemnized with consent of family and continuation of criminal
proceedings and existence of FIR shall have adverse affect on her
future as her husband is accused in said FIR with whom she has
solemnized marriage of her own volition and there is no fault of
petitioner Ankaj with respect to instant FIR.
6. In his statement, petitioner No. 1 Ankaj Kumar, while
endorsing statement made by respondent No. 2, has stated that it was
not in his knowledge that petitioner had not attained the age of discretion
.
i.e. 18 years on the day when she left the house and when it came in
their knowledge immediately Anchal had decided to go back to her
parents and, thereafter, with consent of parents, they have solemnized
marriage on 25th April, 2021 and since then, Anchal is residing with him
also.
r to
happily and he undertakes to maintain and keep her happy in future
7. Petitioners No. 1 and 2, respondent No. 2 and Shambi
Singh, father of petitioner No. 2 have stated that they have compromised
the matter and disposed in the Court out of their free will, consent and
also without any kind of threat, coercion or pressure etc.
7. It is contended on behalf of respondent No.1-State that
petitioner/accused is not entitled to invoke inherent jurisdiction of this
Court to exercise its power on the basis of compromise arrived at
between the parties with respect to an offence not compoundable under
Section 320 Cr.P.C.
6. Three Judges Bench of the Apex Court in Gian Singh Vs.
State of Punjab and Ors. 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.PC, 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.PC is held to be exercisable for quashing criminal
flavour particularly
r offences to
proceedings in cases having overwhelming and predominatingly civil
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.
7. The Apex Court in Parbatbhai Aahir alias Parbhathbhai
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.
8. The Apex Court in case Narinder Singh and others 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.
9. No doubt Sections 363, 366 and 376 of IPC, Section 4 of
POCSO Act and Section 3(2) of SC/ST Act 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.P.C
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.P.C, if 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.
10. In 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.
11. Learned counsel for the petitioners has also referred to
judgments passed by the Coordinate Benches in Cr.MMO No. 301 of
2018, decided on 24.04.2019, titled as Asha Devi & others vs. State of
Himachal Pradesh & another; Cr.MMO No. 399 of 2018, decided on
18.09.2018, titled Court of H.P. as Kajal & another vs. State of
Himachal Pradesh & another; Cr.MMO No. 244 of 2019, decided on
07.05.2019 titled as X vs. State of H.P. & others, Criminal Miscellaneous
(Main) No. 139 of 2018, decided on 26.5.2018, titled Sahil Chaudhary
.
vs. State of H.P. and another, Cr.MMO No. 464 of 2018 decided on
9.8.2019 titled as Shri Devi vs. State of H.P. and another, Cr.MMO No.
377 of 2019 decided on 27.8.2019 titled as Shishpal vs. State of H.P.
and another and Cr.MMO No. 41 of 2019 decided on 24.9.2019 titled as
Ravi Goyal and another vs. State of H.P. and others; Rahul Thakur Vs.
State of H.P., reported in 2020(2) Shim.LC 629; Cr.MMO No. 423 of
2020, titled as Rajneesh Kumari Vs. State, decided on 15.3.2021;
Cr.MMO No. 144 of 2021, Ashok Kumar Vs. State, decided on
27.4.2021; Cr.MMO No. 104 of 2022, titled as Sukh Dev V. State of H.P.
decided on 25.3.2022; and Cr.MMO No. 164 of 2022, titled as Sonu Vs.
State of H.P & other, wherein FIRs registered under Section 376 IPC
and in some cases under Section 376 IPC read with provisions of
POCSO Act have also been quashed in similar circumstances where
victims and accused had married to each other.
12. Observations with respect to individual, family and societal
interest, made by this Court in case Rahul Thakur vs. State of H.P,
reported in 2020(2) Shim.LC 629, are also relevant in present case
which are as under:-
"13. Observation of a 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.
14. In present case also, deposition of victim in the Court in
consonance with prosecution case would lead to landing her
husband and parents in jail and pushing her in pitch dark and
unnecessary trouble.
... ...... .....
16. The ratio of law laid down by the Apex Court on the issue of
permitting quashing of FIR in such 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
has been registered against petitioner-accused, only for the
reason that at that time victim below 18 years of age 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 for
misrepresentation on the part of victim 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. Considering entire facts
and circumstances of the case, in my opinion, balance lies in
favour of the prayer of the victim.
17. 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."
13. It is also a case where two societal interests are in clash. To
punish the offenders for a crime, involved in present case, is in the
interest of society, but, at the same time, husband is taking care of his
wife and in case, husband is convicted and sentenced for societal
interest, then, wife will be in great trouble and their future would be
ruined. It is also in the interest of society to settle and resettle the family
for their welfare. In present, act on the part of respondent No. 2 taken for
safety of petitioner No. 2 has become an offence for age of the petitioner
No. 2 at relevant point of time.
14. Keeping in view nature and gravity of offence and
considering facts and circumstances of the case in entirety, I am of the
opinion that present petition deserves to be allowed for ends of justice
and the same is allowed accordingly and FIR No. 104 of 2020, dated
18.4.2020, registered in Police Station Jawali, District Kangra, Himachal
Pradesh is quashed. Consequent to quashing of FIR, criminal
proceedings pending before learned Additional Sessions Judge (Fast
Track) Kangra, District Kangra at Dharamshala initiated against
petitioner No. 1-accused in pursuance thereto, are also quashed.
15. Petition stands disposed of in above terms.
16. Petitioner is permitted to produce a copy of this judgment,
downloaded from the web-page of the High Court of Himachal Pradesh,
.
before the authorities concerned, and the said authorities shall not insist
for production of a certified copy but if required, may verify it from
Website of the High Court.
(Vivek Singh Thakur),
th
6 May, 2021 Judge.
(Keshav)
