Himachal Pradesh High Court
Date Of Decision: 27.3.2023 vs State Of Hp And Anr on 27 March, 2023
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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CrMMO No. 244 of 2023
Date of Decision: 27.3.2023
_____________________________________________________________________
Karnail Singh
.........Petitioner
Versus
State of HP and Anr.
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the petitioner: Mr. Vijender Katoch, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan
r Kahol, Mr. Vishal Panwar and Mr. B.C. Verma,
Additional Advocates General with Mr. Rahul
Thakur and Mr. Ravi Chauhan, Deputy Advocates
General, for the State.
Mr.Khem Raj, Advocate, for respondents No. 2 & 3.
ASI Rajesh KUmar, P.S. Kihar, District Chamba,
H.P, present with records.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant petition, prayer has been made on behalf of
the petitioner for quashing of FIR No. 37 of 2021 dated 8.3.2021, under
Sections 363, 366A, 376 and 506 of IPC and Section 4 of the POCSO Act,
registered at P.S. Kihar, District Chamba, H.P., as well as consequent
proceedings, if any, pending before the court below, on the basis of
compromise/amicable settlement arrived inter-se parties.
2. Averments contained in the petition, which is duly supported
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by an affidavit, reveal that FIR sought to be quashed in the instant
proceedings came to be lodged at the behest of respondent No.3-
complainant (mother of the victim-prosecutrix), who alleged that on
4.3.2021, she had gone to Hospital at Pathankot and at that relevant time,
her mother and husband were not at home. She alleged that at 3:30pm,
her mother informed her that her daughter i.e. respondent No.2 had gone
to purchase Maggi, but she has not come back. She alleged that though all
efforts were made to ascertain the whereabouts of her minor daughter, but
she was not found and as such, appropriate action in accordance with law
be taken. Pursuant to aforesaid complaint, police started investigation and
found that petitioner accused has made respondent No.2 to elope with him
on the pretext of marriage. After having recovered respondent No.2 from
the custody of the petitioner, police got her statement recorded under
Section 161 Cr.PC, wherein she alleged that she was made to run away
from her house by the petitioner on the pretext of marriage. She alleged
that during her stay with the petitioner, petitioner also sexually assaulted
her against her wishes. While getting her statement recorded under
Section 164 Cr.PC, victim-prosecutrix though alleged that she was forcibly
taken by the petitioner on the pretext of marriage, but nowhere made
allegation with regard to sexual assault, if any. After completion of
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investigation, police presented challan in the competent court of law, but
before same could be taken to its logical end, victim-prosecutrix and
petitioner solemnized marriage and as such, petitioner has approached this
Court in the instant proceedings for quashing of FIR as well as consequent
proceedings, if any, pending in the competent court of law.
3. In terms of order dated 21.3.2023, respondent-State has filed
the status report under the signature of Superintendent of Police Chamba,
HP, wherein factum with regard to compromise inter-se parties stands
acknowledged. Police has recorded the statement of Notary Public, who
notarized the compromise deed.
4. Respondents No.2 and 3, who are present in the court and duly
represented by Mr. Khem Raj, Advocate, state that they of their own volition
and without there being external pressure, have entered into compromise
with the petitioner-accused. Respondent No.3 Nirmala Devi, who is mother
of the victim-prosecutrix, states that since after lodging of FIR, petitioner
has solemnized marriage with her daughter and at present, she is leading
happy married life, she does not wish to prosecute the case further.
Respondent No.3 Priya, states that since petitioner is taking good care of
her after the marriage and she is living happily with him, she does not wish
to prosecute the case further and has no objection in case prayer made in
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the instant petition for quashing of FIR as well as consequent proceedings
is accepted. While admitting the contents of the compromise to be correct,
respondents No. 2 and 3 also admit their signatures on the compromise.
5. Having heard the aforesaid statements made by respondents
No.2 & 3, Mr. Rajan Kahol, learned Additional Advocate General, states
that though as per status report, respondent No.2 has solemnized the
marriage with the petitioner, but keeping in view the gravity of offence
alleged to have been committed by the petitioner, prayer made on his behalf
for quashing of FIR, deserves outright rejection. While inviting attention of
this court to the judgment passed by the Hon'ble Apex Court in Narinder
Singh and others versus State of Punjab and another (2014)6 SCC 466,
learned Additional Advocate General states that since petitioner-accused
has committed heinous crime of rape, this court while exercising power
under Section 482 Cr.PC., may not accept the prayer made in the instant
petition.
6. The question which now needs consideration is whether FIR's
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
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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 to 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. In para Nos. 29 to 29.7 of the
judgment Hon'ble Apex Court has laid down certain parameters to be
followed, while compounding offences.
8. Careful perusal of para 29.3 of the judgment suggests that
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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
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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 further
reiterated that 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.
Hon'ble Apex Court further observed that when offences of a personal
nature, burying them would bring about peace and amity between the two
sides.
10. Hon'ble Apex Court in its 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.
11. It is quite apparent from the aforesaid exposition of law that
High Court has inherent power to quash criminal proceedings even in those
cases which are not compoundable, but such power is to be exercised
sparingly and with great caution. Though offence alleged to have been
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committed by the petitioner falls in the category of heinous crime as has
been held by the Hon'ble Apex Court in Judgment (supra) and as such, this
court should be reluctant in exercising power under Section 482 Cr.PC, for
quashing of FIR, but in the peculiar facts and circumstances, where
petitioner-accused and victim-prosecutrix have solemnized marriage and
victim is living happy married life with her husband i.e. petitioner-accused,
this Court in the interest of the victim prosecutrix, deems it fit to exercise
power under Section 482 Cr.PC, for accepting the prayer made by the
petitioner for quashing of FIR. In case, prayer made on behalf of the
petitioner accused is not accepted at this stage, great prejudice would be
caused to the victim-prosecutrix, who has not only solemnized marriage
with the petitioner-accused but also living happy married life as has been
stated by the victim-prosecutrix in her statement recorded before this
Court. In case, petitioner-accused is made to face the trial in terms of FIR
sought to be quashed and ultimately he is convicted, it is victim-
prosecutrix, who would be the ultimate sufferer. No doubt, while exercising
power under Section 482 Cr.PC, for quashing of FIR, this court is also
required to take into consideration interest of the society at large, but in
the present case, interest of respondent No.2-victim-prosecutrix appears to
be more important than of the society and as such, in the peculiar facts
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and circumstances of the case, this Court while exercising powers under
Section 482 Cr.PC., deems it fit to quash the FIR lodged against the
petitioner under Section 376 IPC. Moreover, chances of conviction of the
petitioner are very remote and bleak in view of the statement made by
respondent No.2-victim-prosecutrix and as such, no fruitful purpose would
be served in case FIR as well as consequent proceedings are allowed to
sustain.
12.
Consequently, in view of the aforesaid discussion as well as law
laid down by the Hon'ble Apex Court (supra), FIR No. 37 of 2021 dated
8.3.2021, under Sections 363, 366A, 376 and 506 of IPC and Section 4 of
the POCSO Act, registered at P.S. Kihar, District Chamba, H.P., as well as
consequent proceedings, if any, pending before the court below, are ordered
to be quashed and set-aside. Accused is acquitted of the charges framed
against him.
13. The present petition is allowed and disposed of in the
aforesaid terms. Pending application(s), if any, also stands disposed of.
March 27, 2023 (Sandeep Sharma),
(manjit) Judge
