High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA ON THE 24th DAY OF FEBRUARY, 2022
BEFORE
HON’BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 40 OF 2022
Between:
1. AJAY KUMAR,
S/O SH. JAGDISH CHAND,
AGE 36 YEAR.
2. JAGDISH CHAND,
S/O SHRI BUTA RAM,
AGE 59 YEARS,
3. JOGINDERA DEVI,
W/O SHRI JAGDISH CHAND,
AGE 55 YEARS,
4. GOLDI DEVI,
D/O JAGDISH CHAND,
AGE 28 YEARS
ALL R/O VILLAGE DALOH,
P/O BANDI-NAGANPUTT,
TEHSIL SHAHPUR,
DISTRICT KANGRA, H.P.
….PETITIONERS
(BY MR. RAMAKANT SHARMA,
ADVOCATE)
AND
1. AARTI KUMARI,
D/O SHRI RAM SINGH,
2
High Court of H.P.
S/O SHRI SURENDER,
R/O VILLAGE DARI,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
176057.
2. STATE OF H.P. THROUGH
SECRETARY (HOME),
TO THE GOVERNMENT OF
HIMACHAL PRADESH
….RESPONDENTS
(BY MR. ANKIT, ADVOCATE,
FOR R-1)
(BY MR. SUDHIR BHATNAGAR AND
MR. ARVIND SHARMA,
ADDITIONAL ADVOCATES GENERAL,
WITH MR. NARENDER THAKUR,
DEPUTY ADVOCATE GENERAL, FOR R-2)
Whether approved for reporting?.
This petition coming on for orders this day, the Court passed the following:
O R D E R
On the oral request of learned counsel for the petitioner, State
of H.P., through Secretary (Home), to the Government of Himachal Pradesh, is impleaded as party respondent No.2. Mr. Gaurav Sharma, learned Additional Advocate General, appears and waives service of notice on behalf of respondent No.2-State.
3
High Court of H.P.
2. By way of instant petition, prayer has been made on behalf of the petitioner for quashing of FIR No. 30 of 2017, dated 21.9.2017, under Sections 498(A), 354, read with Section 34 of IPC, registered with Police Station Gagal, District Kangra, 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.
3. Averments contained in the petition, which is duly supported by an affidavit, reveal that marriage inter-se petitioner No.1 Ajay Kumar and respondent No.1 Aarti Kumari, was solemnized on 7.11.2016 as per Hindu Customs and Rites and out of their wedlock, no issue was born. Since on account of certain differences, parties were unable to live together,
respondent-Aarti started living separately with her parents w.e.f 26.7.2017. FIR sought to be quashed in the instant proceedings, came to be lodged at the behest of the respondent, wherein she alleged that she is constantly harassed and tortured by her husband and other family members on account of bringing less dowry. After completion of the investigation, police presented challan in the competent court of law, but before same could be taken to its logical end, parties to the lis have resolved to settle their dispute amicably inter-se them by way of compromise placed on record.
4
High Court of H.P.
4. Since petitioner No.1 Ajay Kumar and respondent Aarti Kumari have already obtained decree of divorce by way of mutual consent by filing joint petition under Section 13 B of the Act, petitioners have approached this Court in the instant proceedings for quashing of FIR as well as consequent proceedings pending in the competent court of law.
5. Vide order dated 12.1.2022, this Court directed the respondent to come present in the Court so that factum with regard to correctness and genuineness of the compromise placed on record, is ascertained.
6. Pursuant to aforesaid order, Ms. Aarti Kumari, has come present in the Court and is duly represented by Mr. Ankit, Advocate. She states on oath that she of her own volition and without there being external pressure has entered into compromise with the petitioners-accused, whereby both the parties have resolved to settle their dispute amicably inter-se them. She states that since after lodging of FIR sought to be quashed, she has taken the divorce by way of mutual consent, she does not wish to prosecute the case further and as such, shall have no objection in case FIR as well consequent proceedings, are quashed and set-aside and accused are acquitted. She admits the contents of the compromise and endorses her signature thereupon. Her such statement made on oath is taken on record.
5
High Court of H.P.
7. Mr. Gaurav Sharma, learned Deputy Advocate General, having heard aforesaid statements made by respondents No.1 states that in view of the amicable settlement arrived inter-se parties, no fruitful purpose would be served in case FIR sought to be quashed as well as consequent proceedings pending before the court below are allowed to sustain. He further states that otherwise also, chances of conviction of the accused in view of the aforesaid statements made on oath, are very remote and bleak
and as such, prayer made in the instant petition may be accepted.
8. Since the petition has been filed under Section 482 Cr.PC, this Court deems it fit to consider the present petition in the light of the judgment passed by Hon’ble Apex Court in Narinder Singh and others versus State of Punjab and another (2014)6 Supreme Court Cases 466,
whereby 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 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 the
6
High Court of H.P.
criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with great caution. Para Nos. 29 to 29.7 of the judgment are reproduced as under:-
“29. In view of the aforesaid discussion, we sum up and lay down the following
principles by which the High Court would be guided in giving adequate
treatment to the settlement between the parties and exercising 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
the criminal proceedings:
29.1Power 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 the criminal proceedings even in those cases which
are not compoundable, where the parties have settled the matter between
themselves. However, this power is to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on that basis petition
for quashing the criminal proceedings is filed, the guiding factor in such cases
would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power under Section 482 Cr.P.C the High Court is to form
an opinion on either of the aforesaid two objectives.
29.3. Such a power is not be exercised in those prosecutions 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. Similarly, for offences alleged to have been 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.
29.4. On the other, those criminal cases having overwhelmingly and pre
dominantly civil character, particularly those arising out of commercial
transactions or arising out of matrimonial relationship or family disputes
should be quashed when the parties have resolved their entire disputes among
themselves.
7
High Court of H.P.
29.5. While exercising its powers, the High Court is to examine as to whether
the possibility of conviction is remote and bleak and continuation of criminal
cases would put the accused to great oppression and prejudice and extreme
injustice would be caused to him by not quashing the criminal cases.
29.6. Offences under Section 307 IPC would fall in the category of heinous and
serious offences and therefore is to be generally treated as crime against the
society and not against the individual alone. However, the High Court would
not rest its decision merely because there is a mention of Section 307 IPC in the
FIR or the charge is framed under this provision. It would be open to the High
Court to examine as to whether incorporation of Section 307 IPC is there for the
sake of it or the prosecution has collected sufficient evidence, which if proved,
would lead to proving the charge under Section 307 IPC. For this purpose, it
would be open to the High Court to go by the nature of injury sustained,
whether such injury is inflicted on the vital/delegate parts of the body, nature
of weapons used etc. Medical report in respect of injuries suffered by the victim
can generally be the guiding factor. On the basis of this prima facie analysis,
the High Court can examine as to whether there is a strong possibility of
conviction or the chances of conviction are remote and bleak. In the former case
it can refuse to accept the settlement and quash the criminal proceedings
whereas in the later case it would be permissible for the High Court to accept
the plea compounding the offence based on complete settlement between the
parties. At this stage, the Court can also be swayed by the fact that the
settlement between the parties is going to result in harmony between them
which may improve their future relationship.
29.7. While deciding whether to exercise its power under Section 482 of the
Code or not, timings of settlement play a crucial role. Those cases where the
settlement is arrived at immediately after the alleged commission of offence and
the matter is still under investigation, the High Court may be liberal in
accepting the settlement to quash the criminal proceedings/investigation. It is
because of the reason that at this stage the investigation is still on and even the
charge sheet has not been filed. Likewise, those cases where the charge is
framed but the evidence is yet to start or the evidence is still at infancy stage,
the High Court can show benevolence in exercising its powers favourably, but
after prima facie assessment of the circumstances/material mentioned above.
On the other hand, where the prosecution evidence is almost complete or after
the conclusion of the evidence the matter is at the stage of argument, normally
the High Court should refrain from exercising its power under Section 482 of
the Code, as in such cases the trial court would be in a position to decide the
case finally on merits and to come a conclusion as to whether the offence under
Section 307 IPC is committed or not. Similarly, in those cases where the
conviction is already recorded by the trial court and the matter is at the
appellate stage before the High Court, mere compromise between the parties
would not be a ground to accept the same resulting in acquittal of the offender
who has already been convicted by the trial court. Here charge is proved under
Section 307 IPC and conviction is already recorded of a heinous crime and,
therefore, there is no question of sparing a convict found guilty of such a
crime”.
“32. We find from the impugned order that the sole reason which weighed with
the High Court in refusing to accept the settlement between the parties was the
nature of injuries. If we go by that factor alone, normally we would tend to
8
High Court of H.P.
agree with the High Court’s approach. However, as pointed out hereinafter,
some other attendant and inseparable circumstances also need to be kept in
mind which compels us to take a different view.
33. We have gone through the FIR as well which was recorded on the basis of
statement of the complainant/victim. It gives an indication that the
complainant was attacked allegedly by the accused persons because of some
previous dispute between the parties, though nature of dispute, etc. is not
stated in detail. However, a very pertinent statement appears on record viz.
“respectable persons have been trying for a compromise up till now, which
could not be finalized.” This becomes an important aspect. It appears that there
have been some disputes which led to the aforesaid purported attack by the
accused on the complainant. In this context when we find that the elders of the
village, including Sarpanch, intervened in the matter and the parties have not
only buried their hatchet but have decided to live peacefully in future, this
becomes an important consideration. The evidence is yet to be led in the Court.
It has not even started. In view of compromise between parties, there is a
minimal chance of the witnesses coming forward in support of the prosecution
case. Even though nature of injuries can still be established by producing the
doctor as witness who conduced medical examination, it may become difficult
to prove as to who caused these injuries. The chances of conviction, therefore,
appear to be remote. It would, therefore, be unnecessary to drag these
proceedings. We, taking all these factors into consideration cumulatively, are of
the opinion that the compromise between the parties be accepted and the
criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with
police station Lopoke, District Amritsar Rural be quashed. We order
accordingly.”
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 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 power for quashing proceedings in heinous and serious offences of mental depravity,
9
High Court of H.P.
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 also held as under:-
“7. In certain decisions of this Court in view of the settlement arrived at by the
parties, this Court quashed the FIRs though some of the offences were non
compoundable. A two Judges’ Bench of this court doubted the correctness of
those decisions. Learned Judges felt that in those decisions, this court had
permitted compounding of non-compoundable offences. The said issue was,
therefore, referred to a larger bench.
The larger Bench in Gian Singh v. State of Punjab (2012) 10 SCC 303 considered
the relevant provisions of the Code and the judgments of this court and
concluded as under: (SCC pp. 342-43, para 61)
61. The position that emerges from the above discussion can be
summarised thus: the power of the High Court in quashing a criminal
proceeding or FIR or complaint in exercise of its inherent jurisdiction is
distinct and different from the power given to a criminal court for
compounding the offences under Section 320 of the Code. Inherent
power is of wide plenitude with no statutory limitation but it has to be
exercised in accord with the guideline engrafted in such power viz; (i) to
secure the ends of justice or (ii) to prevent abuse of the process of any
Court. In what cases power to quash the criminal proceeding or
complaint or F.I.R may be exercised where the offender and victim have
settled their dispute would depend on the facts and circumstances of
each case and no category can be prescribed. However, before exercise
of such power, the High Court must have due regard to the nature and
gravity of the crime. Heinous and serious offences of mental depravity
or offences like murder, rape, dacoity, etc. cannot be fittingly quashed
even though the victim or victim’s family and the offender have settled
the dispute. Such offences are not private in nature and have serious
impact on society. Similarly, any compromise between the victim and
offender in relation to the offences under special statutes like Prevention
of Corruption Act or the offences committed by public servants while
working in that capacity etc; cannot provide for any basis for quashing
criminal proceedings involving such offences. But the criminal cases
having overwhelmingly and pre-dominatingly civil flavour stand on
different footing for the purposes of quashing, particularly the offences
arising from commercial, financial, mercantile, civil, partnership or such
like transactions or the offences arising out of matrimony relating to
dowry, etc. or the family disputes where the wrong is basically private
or personal in nature and the parties have resolved their entire dispute.
In this category of cases, High Court may quash criminal proceedings if
in its view, because of the compromise between the offender and victim,
the possibility of conviction is remote and bleak and continuation of
criminal case would put accused to great oppression and prejudice and
extreme injustice would be caused to him by not quashing the criminal
case despite full and complete settlement and compromise with the
victim. In other words, the High Court must consider whether it would
be unfair or contrary to the interest of justice to continue with the
10
High Court of H.P.
criminal proceeding or continuation of the criminal proceeding would
tantamount to abuse of process of law despite settlement and
compromise between the victim and wrongdoer and whether to secure
the ends of justice, it is appropriate that criminal case is put to an end
and if the answer to the above question(s) is in affirmative, the High
Court shall be well within its jurisdiction to quash the criminal
proceeding.” (emphasis supplied)
8. In the light of the above observations of this court in Gian Singh, we feel that
this is a case where the 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. They are offences
of a personal nature and burying them would bring about peace and amity
between the two sides. In the circumstances of the case, FIR No. 163 dated
26.10.2006 registered under Section 147, 148, 149, 323, 307, 452 and 506 of
the IPC at Police Station Sector 3, Chandigarh and all consequential proceedings
arising there from including the final report presented under Section 173 of the
Code and charges framed by the trial Court are hereby quashed.
10. Recently Hon’ble Apex Court in its latest 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. It would
be profitable to reproduce para No. 13 to 15 of the judgment herein:
“13. The same principle was followed in Central Bureau of Investigation v.
Maninder Singh (2016)1 SCC 389 by a bench of two learned Judges of this
Court. In that case, the High Court had, in the exercise of its inherent power
under Section 482 quashed proceedings under Sections 420, 467, 468 and 471
read with Section 120-B of the Penal Code. While allowing the appeal filed by
the Central Bureau of Investigation Mr Justice Dipak Misra (as the learned Chief
Justice then was) observed that the case involved allegations of forgery of
documents to embezzle the funds of the bank. In such a situation, the fact that
the dispute had been settled with the bank would not justify a recourse to
thepower under Section 482:
“…In economic offences Court must not only keep in view that money
has been paid to the bank which has been defrauded but also the
society at large. It is not a case of simple assault or a theft of a trivial
amount; but the offence with which we are concerned is well planned
and was committed with a deliberate design with an eye of personal
profit regardless of consequence to the society at large. To quash the
11
High Court of H.P.
proceeding merely on the ground that the accused has settled the
amount with the bank would be a misplaced sympathy. If the
prosecution against the economic offenders are not allowed to continue,
the entire community is aggrieved.”
14. In a subsequent decision in State of Tamil Nadu v R Vasanthi Stanley
(2016) 1 SCC 376, the court rejected the submission that the first respondent
was a woman “who was following the command of her husband” and had
signed certain documents without being aware of the nature of the fraud which
was being perpetrated on the bank. Rejecting the submission, this Court held
that:
“… Lack of awareness, knowledge or intent is neither to be considered
nor accepted in economic offences. The submission assiduously
presented on gender leaves us unimpressed. An offence under the
criminal law is an offence and it does not depend upon the gender of an
accused. True it is, there are certain provisions in Code of Criminal
Procedure relating to exercise of jurisdiction Under Section 437, etc.
therein but that altogether pertains to a different sphere. A person
committing a murder or getting involved in a financial scam or forgery of
documents, cannot claim discharge or acquittal on the ground of her
gender as that is neither constitutionally nor statutorily a valid
argument. The offence is gender neutral in this case. We say no more on
this score…”
“…A grave criminal offence or serious economic offence or for that
matter the offence that has the potentiality to create a dent in the
financial health of the institutions, is not to be quashed on the ground
that there is delay in trial or the principle that when the matter has been
settled it should be quashed to avoid the load on the system…”
15.The broad principles which emerge from the precedents on the subject
may be summarized in the following propositions:
(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 recognizes 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 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 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; (i) to secure the ends of justice or (ii) to
prevent an abuse of the process of any court;
(v) 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;
12
High Court of H.P.
(vi) 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;
(vii) 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;
(viii) 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;
(ix) 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
(x) There is yet an exception to the principle set out in propositions (viii) and
(ix) 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 a financial or economic fraud or misdemeanour.
The consequences of the act complained of upon the financial or economic
system will weigh in the balance.
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. In the judgments, referred hereinabove, Hon’ble Apex Court has categorically held that Court while exercising inherent power under Section 482 Cr.P.C., must have due regard to the nature and gravity of offence sought to be compounded. Hon’ble Apex Court
13
High Court of H.P.
has though held that heinous and serious offences of mental depravity, murder, rape, dacoity etc. cannot appropriately be quashed though the victim or the family of the victim have settled the dispute, but it has also observed that while exercising its powers, High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. Hon’ble Apex Court has further held that Court while exercising power under Section 482 Cr.P.C can also be swayed by the fact that settlement between the parties is going to result in harmony between them which may improve their future relationship. Hon’ble Apex Court in its judgment rendered in State of Tamil Nadu supra, has reiterated that 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 and has held that the power to quash under Section 482 is attracted even if the offence is non-compoundable. In the aforesaid judgment Hon’ble Apex Court has held that while forming an opinion whether a criminal proceedings or complaint should be quashed in 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.
14
High Court of H.P.
12. 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 the complainant have compromised the matter inter-se them, in which case, possibility of conviction is remote/bleak and no fruitful purpose would be served in continuing with the criminal proceedings.
13. Since the matter stands compromised between the parties and they are no more interested in pursuing the criminal proceedings against each other, no fruitful purpose would be served in case criminal proceedings are allowed to continue, as such, prayer made in the petition at hand can be accepted.
14. Consequently, in view of the averments contained in the petition as well as the submissions having been made by the learned counsel for the parties that the matter has been compromised, and keeping in mind the well settled proposition of law as well as the compromise being genuine, FIR No. 30 of 2017, dated 21.9.2017, under Sections 498(A), 354, read with Section 34 of IPC, registered with Police Station Gagal, District
15
High Court of H.P.
Kangra, H.P., as well as consequent proceedings, if any, pending before the court below, are ordered to be quashed and set-aside.
15. The present petition is allowed in the aforesaid terms. Pending application(s), if any, also stands disposed of.
24th February, 2022 (Sandeep Sharma),
(manjit) Judge
Comments