Himachal Pradesh High Court
Hari Ram & Others vs State Of H.P. And Anr on 27 September, 2024
Neutral Citation No. ( 2024:HHC:9220 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No 257 of 2024
Reserved on: 28.08.2024
.
Date of Decision: 27.09.2024.
Hari Ram & others ...Petitioners
Versus
State of H.P. and Anr. ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioners : Mr. Inderjeet Singh Narwal, Advocate.
For the Respondents : Mr. Jitender K. Sharma, Additional
Advocate General for respondent No.1
Mr. Suneet Verma, Advocate, for
respondent No.2.
Rakesh Kainthla, Judge
The petitioner has filed the present petition under
Section 482 of Cr.P.C. for quashing of F.I.R. No. 08 of 2019, dated
23.11.2019 registered for the commission of offences punishable
under Sections 376 of the Indian Penal Code (IPC), Section 4 of
Protection of Children from Sexual Offences Act (POCSO Act) and
Sections 9, 10 and 11 of Prohibition of Child Marriage Act, 2006 at
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:9220 )
Police Station Bagga, District Solan, H.P. and consequent
proceedings arising out of the said F.I.R.
.
2. It has been asserted that the victim was taken to the
Hospital regarding her pregnancy. The Medical Officer informed
the police and the police registered F.I.R. The victim and the
accused were married to each other and in view of the marriage,
they do not want to proceed further with the matter.
3.
The statement of the victim was recorded on 11.07.2024,
in which she stated that she had married the accused before the
incident. They are residing happily and she does not want to
proceed further in the matter.
4. The statement of the father of the victim was also
recorded on 11.07.2024, in which he admitted the factum of
marriage.
5. I have heard the learned counsel for the parties and have
gone through the records.
6. 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 the
Court has to consider whether the allegations prima facie constitute
the ingredients of the offence, whether the settlement is in the best
Neutral Citation No. ( 2024:HHC:9220 )
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 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 criminal
proceeding on the ground that a settlement has been
arrived at between the offender and the victim is not
Neutral Citation No. ( 2024:HHC:9220 )
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;
r (b) to secure the ends of justice; or
(c) to prevent an abuse of the process of any
court;
(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 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
Neutral Citation No. ( 2024:HHC:9220 )
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, 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.
Neutral Citation No. ( 2024:HHC:9220 )
(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
r 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 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,
Neutral Citation No. ( 2024:HHC:9220 )
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."
7. 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."
8. 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.
"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
Neutral Citation No. ( 2024:HHC:9220 )
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 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
Neutral Citation No. ( 2024:HHC:9220 )
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."
9. In the present case the fact that the parties had
solemnized marriage is duly established. Therefore, the
genuineness of marriage has to be accepted as correct.
10.
In view of the binding precedents, the present petition is
allowed and F.I.R. No. 08 of 2019, dated 23.11.2019, for the
commission of offences punishable under Section 376 of Indian
Penal Code (IPC), Section 4 of Protection of Children from Sexual
Offences Act (POCSO Act) and Sections 9, 10 and 11 of Prohibition
of Child Marriage Act, 2006 registered at Police Station Bagga,
District Solan, H.P. is ordered to be quashed. Consequent upon the
quashing of FIR, criminal proceedings pending/initiated against
the petitioners-accused in pursuance thereto, are also quashed.
11. Petition stands disposed of in the above terms, so also
pending miscellaneous applications, if any.
12. Parties are permitted to produce a copy of this
judgment, downloaded from the webpage of the High Court of
Himachal Pradesh before the authorities concerned, and the said
Neutral Citation No. ( 2024:HHC:9220 )
authorities shall not insist on the production of a certified copy but
if required, may verify passing of the order from Website of the
.
High Court.
(Rakesh Kainthla)
Judge
27th September, 2024
(ravinder)
r to
