Himachal Pradesh High Court

Reserved On: 16.10.2024 vs State Of H.P. And Others on 25 October, 2024

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No. 330 of 2024 Reserved on: 16.10.2024 Date of Decision: 25.10.2024.

    Rahul Thakur @ ors.                                                          ...Petitioners

                                            Versus

    State of H.P. and others                                                     ...Respondents


    Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioners : Mr. Ashutosh Bhardwaj, Advocate. For the Respondents : Mr. Lokender Kutlehria, Additional Advocate General, for respondents No.1 and 2.

Mr. Ashok Kumar, Advocate, for respondent No. 3.

Rakesh Kainthla, Judge

The petitioners have filed the present petition for

quashing of FIR No. 25 of 2023, dated 24.09.2023, registered at

Police Station Kullu, District Kullu, H.P., for the commission of

offences punishable under Sections 376(2)(n) and 342 of the

Indian Penal Code (in short 'IPC') and Sections 6, 17 and 21 of

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

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Protection of Children from Sexual Offences Act, 2012 (in short

'POCSO Act'). It has been asserted that the matter has been

compromised between the parties on 18.03.2024. The parties are

closely related to each other and the victim does not want to

proceed further with the matter in view of the compromise.

2. The statements of the victim, her father and the

petitioner's father were recorded on 09.09.2024. The victim

stated that she had married the petitioner voluntarily without

any influence from any person and she is residing with him. Her

father and the petitioner's father also stated that the marriage

had been solemnized between the petitioner and the victim. The

State has filed instructions showing that the marriage was

solemnized between the petitioner and the victim.

3. I have heard the learned counsel for the parties and

have gone through the records carefully.

4. A Division Bench of this Court held in Ranjeet Kumar

Vs. State of H.P., Cr.MMO No. 648 of 2023, decided on 8.12.2023 that

while dealing with the petitions involving the sexual assault on

the victim on the ground of compromise, the Court has to

consider whether the allegations, prima facie, constitutes the

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ingredients of the offence, whether the settlement is in the best

interest of the minor victim and whether continuation of the

proceedings against the accused and the participation of the

minor victim in those proceedings would adversely affect the

mental, physical and emotional well-being. It was observed: -

"37. As per Section 2(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015 'best interest of the child' means the basis for any decision taken regarding the child and to ensure the fulfilment of its basic rights and needs, identity, social well-being and physical, emotional and intellectual development. Thus, while dealing with the petitions moved by the parents or guardians of the sexual assault victim to quash the criminal proceedings on the ground of compromise, the Court must consider whether the allegations prima facie constitute the ingredients of the offence, whether the settlement is in the best interest of the minor victim and whether continuation of the proceedings against the accused and the participation of the minor victim in those proceedings would adversely affect the mental, physical and emotional well-being of the latter. (See: Vishnu and another vs. State of Kerala, Crl. Misc. Case No. 5076 of 2018, decided on 24.05.2023).

38. Thus, what can be summarised as the broad principles with regard to the quashing of criminal proceedings on the basis of compromise arrived at between the parties, are as follows:-

(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 recognises 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

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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 the 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;

(a) to give effect to the order of the Court;

(b) to secure the ends of justice; or

(v) 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;

(vi) 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

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distinct footing in so far as the exercise of the inherent power to quash is concerned;

(vii) 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;

(viii) 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 financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

(ix) 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;

(x) 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

(xi) The High Court having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in the exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non- compoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach,

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to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system.

(xii) As opposed to Section 320 Cr.P.C., where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extraordinary power enjoined upon High Court under Section 482 Cr.P.C. can be invoked beyond metes and bounds and Section 320 Cr.P.C. Nonetheless, such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings bearing in mind;

(i) The nature and effect of the offence on the consciousness of the society;

(ii) Seriousness of injury, if any;

(iii) Voluntary nature of compromise between the accused and victim;

(iv) Conduct of the accused; prior to and after the occurrence of the purported offence or other relevant considerations.

(xiii) The Court is to bear in mind that every case is unique and must, therefore, essentially be decided based on its peculiar facts and circumstances. The viability of quashing criminal proceedings on the ground that the accused and the victim had settled the disputes revolves ultimately around the facts and circumstances of each case, therefore, no straight jacket formula can be evolved.

(xiv) Where the Court has such facts on record, which clearly exhibit that the criminal prosecution involving non-compoundable sexual offences against women and children results in greater injustice to the victim and its closure will promote well being and the possibility of conviction is remote, it can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach and may very well decide to quash such proceedings upon a

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compromise arrived at between the accused and the victim, after taking into consideration all the relevant facts and circumstances of the particular case including the nature, magnitude, consequence of the crime and genuineness of the compromise.

(xv) While dealing with the petition moved by the parents or guardians of the sexual assault victim to quash the criminal proceedings on the ground of compromise, the Court must consider whether the allegations prima facie constitute the ingredients of the offence, whether the settlement is in the best interest of the minor victim and whether continuation of the proceedings against the accused and the participation of the minor victim in those proceedings would adversely affect the mental, physical and emotional well-being of the latter."

5. It was held that sexual offences which are grave,

heinous and gruesome can invariably never be a subject matter of

compromise. It was observed-

"39. These are only some of the broad principles that are required to be borne in mind while considering the plea to quash criminal proceedings involving non-compoundable sexual offences based on compromise.

40. At this stage, we need to enter a caveat and re- emphasize that sexual offences which are grave, heinous and gruesome in nature can invariably never be a subject matter of compromise."

6. It was further held that where the parties had

solemnized marriage, the Court could quash the FIR based on

such compromise. The continuation of the proceedings would

result in a disturbance in their happy family life. It was observed.

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"41. Adverting to the facts of the present case, no doubt, the accused has been charged for the offences punishable under Sections 366, 376, 212 and 120-B IPC and Section 4 of the POCSO Act, but then it cannot be ignored that the criminal prosecution was set into motion only because the victim happens to be a child but otherwise, she was in love with the accused. It is also not in dispute that the accused was interested to solemnise marriage with the child victim and has, in fact, solemnised marriage on 09.03.2023 and thereafter has also entered into a compromise on 17.04.2023. In such circumstances, even while bearing in mind the pertinent observations of the Hon'ble Supreme Court in Alakh Alok Srivastava and Dr. Maroti's cases (supra), the Court could still quash the FIR after satisfying itself that the child victim and her family members had settled the dispute and the victim got married and was leading a peaceful life and, therefore, allowing the prosecution to continue in such case would only result in disturbance in their happy family life and ends of justice in such circumstances would demand that the parties be allowed to compromise. However, before doing so, the Court must ensure that the marriage is not a camouflage to escape punishment and the consent given by the victim for compromise is voluntary. The Court must also be satisfied after considering all the facts and circumstances of the case that quashing the proceedings would promote justice for the victim and continuance of the proceedings would cause injustice.

42. Therefore, in such circumstances, compounding the offence, in our considered opinion would enable both parties to lead a life of respect and dignity in the society. Once, there is no dispute between them, then obviously the law cannot be so harsh so as to stand as a wall between the parties, because the law has to secure the future of the parties, and continuation of criminal proceedings in such circumstances, would only cause an irreparable harassment and hardship and may even tarnish and spoil the reputation of the victim. The Court proceedings cannot

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be permitted to degenerate into a weapon of harassment and persecution. The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in the exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. No embargo, be in the shape of Section 320(9) of the Cr.P.C. or any other such curtailment can whittle down the power of the High Court under Section 482 Cr.P.C. to do complete justice.

7. The State has verified the factum of the marriage and

has placed the record the copy of the Pariwar Register, in which

the name of the victim has been recorded as the wife of the

petitioner and a copy of the Marriage Certificate showing that the

victim and the petitioner are married to each other. Thus, the

report submitted by the State also corroborates the version of the

victim, her father and the father of the petitioner regarding the

marriage between the parties.

8. In view of the binding precedent of Ranjeet Kumar

(supra), the present petition is allowed and FIR No. 25 of 2023,

dated 24.09.2023, registered at Police Station Kullu, District

Kullu, H.P., for the commission of offences punishable under