Lt. Col. Devender Kumar Sharma & Anr vs State Of H.P. & Ors
2024 Latest Caselaw 11116 HP

Himachal Pradesh High Court

Lt. Col. Devender Kumar Sharma & Anr vs State Of H.P. & Ors on 6 August, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.1260 of 2024 Date of Decision: 06.08.2024

.

_______________________________________________________

Lt. Col. Devender Kumar Sharma & Anr.

.......Petitioners Versus

State of H.P. & Ors.

.....Respondents _______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

    Whether approved for reporting? 1

    For the petitioners:               Mr. Ajay Kochhar, Senior Advocate, with Mr.
                              r        Anubhav Chopra, Mr. Bhairav Gupta & Mr.

Varun Chauhan, Advocates, for petitioners and respondent No. 3.

For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals,

with Mr. Ravi Chauhan, Deputy Advocate General, for respondent No.1-State.

Mr. Ashok Sood, Senior Advocate, with Mr. Abhishek Banta, Advocate, for respondent

No. 2.

_______________________________________________________ Sandeep Sharma, Judge(oral):

By way of instant petition filed under Section 482 of the

Code of Criminal Procedure, prayer has been made on behalf of the

petitioners for quashing of FIR No.23 of 2021, dated 06.12.2021,

under Sections 498-A & 34 of Indian Penal Code, registered at

Women Police Station BCS, H.P., as well as consequent

Whether the reporters of the local papers may be allowed to see the judgment?

proceedings, if any, pending adjudication in the competent Court of

law.

.

2. Precisely, the facts of the case, as emerge from the

record, are that FIR sought to be quashed in the instant proceedings,

came to be lodged at behest of respondent No. 2, Ms. Chandini Vij

(hereinafter to be referred to as 'complainant'), who alleged that her

marriage was solemnized with proforma respondent No. 3 Mr. Winnie

Sharma on 15.02.2016 as per Hindu rites and customs. She alleged

that though her relationship with her husband and in-laws was cordial,

but after her having given birth to female child on 13.12.2020, relation

became sour, as a result thereof, she was compelled to leave her

matrimonial house. In nutshell, complainant alleged that repeatedly

she was harassed by petitioners and proforma respondent No. 3 on

trivial issues and they also tortured her for bringing less dowry. On the

basis of aforesaid complaint lodged at the behest of respondent No.

2, FIR, sought to be quashed, came to be instituted against

petitioners and proforma respondent No. 3.

3. Though, after completion of investigation, Police has

already presented challan in the competent court of law against the

petitioners-accused, but before the same could be taken to its logical

end, petitioners, who happen to be in-laws of the complainant and

parents of proforma respondent No. 3, have approached this Court in

the instant proceedings filed under Section 482 of Code of Criminal

Procedure for quashing of FIR on the ground that no case much less

.

under Sections 498-A and 34 of Indian Penal Code is made out

against them. They averred in their petition that at no point of time,

demand of dowry was ever made by them, rather dispute, if any, is

inter se respondent No. 2 and proforma respondent No. 3. They also

averred in the petition that after marriage majority of time respondent

No. 2 lived with her husband i.e. proforma respondent No. 3 and as

such, there was no occasion for them to harass and torture her.

4. Pursuant to notices issued in the instant proceedings,

respondent-State has filed status report, whereas no reply was filed

on behalf of respondent No. 2.

5. Though, petition at hand was filed by the in-laws of

respondent No. 2 for quashing of FIR, but this Court having regard to

the nature of dispute and relationship inter se parties, deemed it

necessary to make an attempt towards amicable settlement.

6. Pursuant to order dated 10.07.2024, both the parties

came present before this Court on 02.08.2024 and expressed their

intention to get the dispute settled for all times to come. On afore

date, parties after having discussed the matter with each other

decided to get the marriage of respondent No. 2 and proforma

respondent No. 3 dissolved by way of mutual consent. Respondent

No. 2 & proforma respondent No. 3 stated on oath before this Court

that they of their own volition and without there being any external

.

pressure have entered into compromise, whereby they have agreed

to file joint petition under Section 13-B of Hindu Marriage Act in the

competent Court of law within a period of one week and thereafter all

the cases, be it criminal or civil, having been filed by them against

each other or families shall be withdrawn. They also stated that as per

agreed terms, proforma respondent No. 3, who happens to be

husband of respondent No. 2 shall pay sum of Rs. 1 crore towards

permanent alimony as well as maintenance of his minor child. Both

the parties also agreed that out of Rs. 1 crore, sum of Rs. 70,00,000/-

shall be invested in FDR in the name of minor child i.e. Aidah Sharma

and same shall not be withdrawn before her having attained majority.

Since on 02.08.2024, compromise, as detailed hereinabove, was not

adduced in writing, this Court adjourned the matter for today's date,

enabling parties to place on record settlement deed/compromise.

7. In terms of order dated 02.08.2024, parties have placed

on record settlement deed/compromise, which is taken on record and

exhibited as Ext. C1. Needless to say, settlement deed-compromise

taken on record shall form part of the record. Though, there are

numerous terms and conditions in the settlement deed-compromise,

but crux of the same has already been recorded by this Court in the

earlier part of the statement. Both respondent No. 2 and proforma

respondent No. 3, who are present in Court again stated before this

.

Court on oath that settlement deed-compromise placed on record has

been prepared on their instructions and they shall abide by the same.

They categorically stated that they shall file joint petition under

Section 13-B of Hindu Marriage Act within a period of one week in the

competent Court of law, seeking therein divorce by way of mutual

consent and thereafter, sum of Rs. 30,00,000/- agreed to be paid as

permanent alimony to respondent No. 2 shall be paid at the time of

recording the statement of first motion, whereas sum of Rs.

70,00,000/- agreed to be invested in the name of Ms. Aidah Sharma

shall be paid/handed over at the time of recording of statement of

second motion. They further stated that as soon as orders on the joint

petition under Section 13-B of the Hindu Marriage Act by the

competent court of law are passed, they shall withdraw all the cases

filed by them against each other and thereafter shall have no claim of

any kind against each other. Complainant specifically stated before

this Court that petition at hand can be allowed and FIR, sought to be

quashed, lodged at her behest against petitioners and proforma

respondent No. 3 can be quashed forthwith. Both respondent No. 2

and proforma respondent No. 3 have undertaken to abide by the

terms and conditions contained in the compromise, failing which, they

would render themselves liable for penal consequences as well as

contempt of Court.

.

8. Bare perusal of settlement deed-compromise reveals that

petitioner No. 1 Devender Kumar Sharma has also filed one FIR No.

226 of 2023, under Sections 341, 504, 506 & 34 of Indian Penal,

registered at Police Station Shimla West, H.P. against the respondent

No. 2 and her father, which shall also be withdrawn by the petitioner

No. 1 as per terms and conditions of the settlement deed. Petitioner

No.1, who is present in Court also states on oath before this Court

that on account of amicable settlement arrived inter se respondent

No. 2 and proforma respondent No. 3, he shall have no objection in

case, FIR lodged at his behest against respondent No. 2 and her

father is quashed and they are acquitted of charges framed against

them. His statement is taken on record.

9. After having heard/perused aforesaid statements made

on oath by complainant, proforma respondent No. 3 and petitioner No.

1, Mr. Vishal Panwar, learned Additional Advocate General, fairly

states that no fruitful purpose would be served in case FIR as well as

consequent proceedings pending adjudication in the competent court

of law are allowed to sustain, rather pendency of the same may

further widen the rift inter se parties. He further states that otherwise

also chances of conviction of the petitioners-accused are very remote

and bleak on account of statements made on oath by the complainant

and proforma respondent No. 3 and as such, this court may proceed

.

to pass appropriate orders.

10. 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

Section 482 Cr.P.C (hereinafter to be referred to as the "Code") is not

to be exercised in the cases which involve heinous and serious

offences of mental depravity or offences like murder, rape, dacoity,

etc., as such offences are not private in nature and have a serious

impact on society?

11. 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 Cr.P.C is to be distinguished from

the power which lies in the Court to compound the offences under

Section 320 Cr.P.C. No doubt, under Section 482 Cr.P.C, 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.

12. 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. Aforesaid view

taken by Hon'ble Apex Court has been further reiterated in Gian

Singh v. State of Punjab and anr. (2012) 10 SCC 303.

13. The Hon'ble Apex Court in case Gian Singh supra 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 to compound

the offences under Section 320 Cr.P.C. 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.P.C

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 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.

14. 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.

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

committed by the petitioners 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 petitioners and complainant have compromised the matter

interse them, in which case, possibility of conviction is remote and no

fruitful purpose would be served in continuing with the criminal

proceedings.

16. Before parting, this Court wishes to observe that since

marriage inter se complainant and proforma respondent No. 3 has

broken beyond repair and there is no possibility of rapprochement,

learned Family Court, while considering the prayer made on behalf of

complainant and proforma respondent No. 3 for dissolution of their

marriage by way of mutual consent, would not unnecessarily prolong

the proceedings, rather immediately after waiving off the cooling

period, would proceed to record the statement of both the parties and

pass appropriate orders.

17. This court taking note of various judgments of Hon'ble

Apex court has repeatedly held that there is no requirement of

.

'cooling period' of six months in the cases where marriage has broken

beyond repair and there is no possibility of parties living together.

Reliance in this regard is placed upon judgment rendered by this

Court in Bharti Kapoor v . Des Raj, CMPMO No. 271 of 2017,

decided on 31.10.2018, wherein it has been held as under:

8. Accordingly, for the reasons and circumstances narrated herein above, present petition is ordered to be converted into a petition under Section 13B of Hindu Marriage Act. Since

both the parties are living

separately for the last many years and they have been litigating with each other, statutory period of six months as envisaged under Section 13B of the Act for grant of divorce

by way of mutual consent, can be waived, especially when there is no possibility of rapprochement of the parties and

marriage has broken beyond repair. In this regard, it would be apt to take note of the judgment rendered by the Hon'ble

Apex Court in Veena vs. State (Government of NCT of Delhi) and another, (2011)14 SCC 614, wherein the Hon'ble

Apex Court has held as under:

12." We have heard the learned counsel for the parties and talked to the parties. The appellant has filed a divorce petition under Section 13(1)(a) of the Hindu Marriage Act, 1955, being HMA No.397/2008 which is pending before the Court of Sanjeev Mattu, Additional District Judge, Karkardooma Courts, Delhi. In the peculiar facts and circumstances of this case, we deem it appropriate to transfer the said divorce petition to this Court and take the same on Board. The said

petition is converted into one under Section 13B of the Hindu Marriage Act and we grant divorce to the parties by mutual consent."

.

9. Reliance is also placed on a judgment rendered by Hon'ble

Apex Court in Priyanka Khanna v. Amit Khanna, (2011) 15 SCC 612, wherein Hon'ble Apex Court has held as under:-

"7. We also see form the trend of the litigations pending between the parties that the relationship between the couple has broken down in a very nasty manner and there is absolutely no possibility of a rapprochement between them

even if the matter was to be adjourned for a period of six months as stipulated under Section 13-B of the Hindu Marriage Act. 8. We also see from the record that the first

litigation had been filed by the respondent husband on

2.6.2006 and a petition for divorce had also been filed by him in the year, 2007. We therefore, feel that it would be in the interest of justice that the period of six months should be

waived in view of the above facts."

10. In the instant case also, statutory period of six months deserves to be waived keeping in view the fact that the

marriage between the parties has broken beyond repair and

there seems to be no possibility of parties living together.

The Hon'ble Apex Court in Civil Appeal No.11158 of 2017

[arising out of Special Leave Petition (Civil) No.20184 of 2017] titled as Amardeep Singh vs. Harveen Kaur, decided on 12.09.2017, has held as under:-

"13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini 10, Karnataka

High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh

.

Kumar Shukla vs. Smt. Neeta13. Contrary view has

been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11

AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt14. It was submitted that Section13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are

living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2)

is procedural. He submitted that the discretion to

waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already

separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should

consider the questions:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/ conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

14 AIR 2010 Ker 157

14. The Court must be satisfied that the parties were living separately for more than the statutory period

.

and all efforts at mediation and reconciliation have

been tried and have failed and there is no chance of reconciliation and further waiting period will only

prolong their agony.

15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood

prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on

statutory grounds. By way of amendment in the year

1976, the concept of divorce by mutual consent was

introduced. However, Section 13B(2) contains a bar

to divorce being granted before six months of time

elapsing after filing of the divorce petition by mutual

consent. The said period was laid down to enable the

parties to have a rethink so that the court grants

divorce by mutual consent only if there is no chance

for reconciliation.

16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The

object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object

.

was not to perpetuate a purposeless marriage or to

prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to

be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the

context, the subject matter and the object of the

provision. This principle, as formulated in Justice G.P. Singh's "Principles of Statutory Interpretation"

(9th Edn., 2004), has been cited with approval in

Kailash versus Nanhku and ors.15as follows:

15 (2005) 4 SCC 480 "The study of numerous cases

on this topic does not lead to formulation of any universal rule except this that language alone most

often is not decisive, and regard must be had to the context, subject-matter and object of the statutory

provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: 'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole

scope of the statute to be considered.' " 'For ascertaining the real intention of the legislature', points out Subbarao, J. 'the court may consider inter

.

alia, the nature and design of the statute, and the

consequences which would follow from construing it the one way or the other; the impact of other

provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the

provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow

therefrom; and above all, whether the object of the

legislation will be defeated or furthered'. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas

if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment,

the same will be construed as directory." 18. Applying

the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied

that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2)

of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further

.

efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other

pending issues between the parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be filed one week

after the first motion giving reasons for the prayer for

rwaiver.

20. If the above conditions are satisfied, the waiver of

the waiting period for the second motion will be in the discretion of the concerned Court.

21. Since we are of the view that the period

mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each

case where there is no possibility of parties resuming

cohabitation and there are chances of alternative rehabilitation."

18. It is quite apparent from the bare perusal of the aforesaid

judgments passed by this court (supra) and Hon'ble Apex Court that

the very object of aforesaid provision is to enable the parties to

dissolve a marriage by consent, especially if marriage has broken

irreparably and there is no possibility of rapprochement.

19. Needless to say, learned Family Court below, while

passing appropriate order on joint petition filed under Section 13-B of

.

the Hindu Marriage Act, would specifically take note of the settlement

deed/compromise and if necessary would proceed to make terms and

conditions contained in aforesaid compromise, part of the order so

that parties are made to abide by the same. While passing decree of

divorce, learned Family Court would ensure that amount agreed to be

paid by proforma respondent No. 3 to respondent No. 2 is paid in its

entirety and thereafter, 70% amount is deposited in Nationalized Bank

in the name of minor i.e. Ms. Aidah Sharma under the guardianship of

respondent No. 2. Though as per agreed terms, amount deposited in

the name of minor i.e. Aidah Sharma shall not be withdrawn,

however, in case of any exigency, respondent No. 2 is always at

liberty to approach competent Court of law, without whose order, no

amount save and except interest shall be claimed or given to the

respondent No. 2.

20. Consequently, in view of the aforesaid discussion as well

as law laid down by the Hon'ble Apex Court (supra), FIR No.23 of

2021, dated 06.12.2021, under Sections 498-A & 34 of Indian Penal

Code, registered at Women Police Station BCS, H.P. , as well as

consequent proceedings, if any, pending adjudication in the

competent court of law are quashed and set aside. Accused are

acquitted of the charges framed against them.

.

The petition stands disposed of in the aforesaid terms,

alongwith all pending applications.

                                                        (Sandeep Sharma),
                                                              Judge
    August 06, 2024
         (sunil)



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