Himachal Pradesh High Court
Ankaj Kumar Aged 30 Years vs State Of Punjab And Ors. Reported ... on 6 May, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 6th DAY OF MAY, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 227 OF 2022
BETWEEN:-
1. ANKAJ KUMAR AGED 30 YEARS
SON OF SHRI SANSAR CHAND,
RESIDENT OF V.P.O. SOLDHA,
TEHSIL JAWALI, DISTRICT
KANGRA, H.P.
2. ANCHAL KUMARI AGED 19 YEARS,
WIFE OF SHRI ANKAJ KUMAR,
RESIDENT OF V.P.O. SOLDHA,
TEHSIL JAWALI, DISTRICT
KANGRA, H.P. ....PETITIONERS
(BY SH. GOLDY KUMAR, ADVOCATE.)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HOME) TO
THE GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-171002.
2. SMT.RAJ KUMARI WIFE OF SHRI
SHAMBI SINGH, RESIDENT OF
V.P.O. SOLDHA, TEHSIL JAWALI,
DISTRICT KANGRA, H.P. ....RESPONDENTS
(BY SH. HEMANT VAID,
ADDITIONAL ADVOCATE GENERAL
FOR RESPONDENT NO. 1.)
(BY MS.LEENA GULERIA, ADVOCATE,
FOR RESPODNENT NO. 2.)
Whether approved for Reporting?
This petition coming on for admission this day, the Court
passed the following:
JUDGMENT
The instant petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC'), has been filed by petitioners Ankaj Kumar and Anchal Kumari, on the basis of compromise ::: Downloaded on - 12/05/2022 20:04:19 :::CIS 2 Cr.MMO No. 227 of 2022 arrived at between them and respondent No. 2 Raj Kumari, for quashing of FIR No. 104 of 2020, dated 18.4.2020, registered in Police Station Jawali, District Kangra, H.P. under Sections 363, 366, 376, 506 of the .
Indian Penal Code (in short 'IPC') and Sections 4 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act') and Section 3(2) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 and consequent proceedings arising thereto.
2. Petitioners Ankaj Kumar, Anchal Kumari, respondent No. 2 Preeti and Shambi Singh (father of petitioner No. 2 Anchal Kumari) were present in the Court on 23.4.2022, and were duly identified by their respective counsel. Their statements, on oath, were recorded separately and placed on the file.
3. In her statement, respondent No.2 Raj Kumari has stated that she is mother of petitioner No. 2 Anchal Kumari and on 18th July, 2020, she found her daughter petitioner No. 2 missing from her room during midnight and, therefore, she lodged FIR in Police Station, but lateron her daughter returned to home and informed that she left the house on her own volition in order to solemnize marriage with petitioner No. 1 Ankaj Kumar, but on revelation that she was three months short to complete 18 years and marriage could not be solemnized in Mata Chamunda Devi Temple Dharamshala, she returned home. She has further stated that thereafter their family and family of petitioner No. 1 Ankaj had decided to solemnize marriage of Anchal and Ankaj on attaining the age of majority by their daughter Anchal, as date of birth of Anchal is 25.9.2002 and she had attained the age of majority on 23.9.2020 and, thereafter they arranged the marriage of Anchal with ::: Downloaded on - 12/05/2022 20:04:19 :::CIS 3 Cr.MMO No. 227 of 2022 petitioner No. 1 on 25.4.2021 and the marriage has been registered with Local Registrar, Death, Birth and Marriage, Gram Panchyat Soldha, Development Block Nagrota Suriyan, Tehsil Jawali, District Kangra, and, .
thereafter, name of her daughter has also been entered in Parivar Register of family of father of petitioner Sansar Singh and after solemnization of marriage, her daughter is residing happily in their house and that FIR was lodged for protection of their daughter but later on they found that she had left the house of her own volition and was not allured or enticed by petitioner No. 1 Ankaj Kumar and now FIR as well as criminal proceedings initiated against Ankaj Kumar in pursuant thereto are coming in the way of happy married life of her daughter and continuation thereof would be detrimental to the interest of her daughter and husband of her daughter, therefore, in the interest of her daughter she has prayed for withdrawal of complaint and FIR as well as criminal proceedings.
4. Shambi Singh, father of petitioner No. 2 has endorsed statement of his wife respondent No. 2 Raj Kumari to be true and correct.
5. In her statement petitioner No. 2 Anchal Kumari has stated that she is residing in her in-laws house after her marriage and marriage has been solemnized with consent of family and continuation of criminal proceedings and existence of FIR shall have adverse affect on her future as her husband is accused in said FIR with whom she has solemnized marriage of her own volition and there is no fault of petitioner Ankaj with respect to instant FIR.
::: Downloaded on - 12/05/2022 20:04:19 :::CIS 4 Cr.MMO No. 227 of 20226. In his statement, petitioner No. 1 Ankaj Kumar, while endorsing statement made by respondent No. 2, has stated that it was not in his knowledge that petitioner had not attained the age of discretion .
i.e. 18 years on the day when she left the house and when it came in their knowledge immediately Anchal had decided to go back to her parents and, thereafter, with consent of parents, they have solemnized marriage on 25th April, 2021 and since then, Anchal is residing with him also.
r to happily and he undertakes to maintain and keep her happy in future
7. Petitioners No. 1 and 2, respondent No. 2 and Shambi Singh, father of petitioner No. 2 have stated that they have compromised the matter and disposed in the Court out of their free will, consent and also without any kind of threat, coercion or pressure etc.
7. It is contended on behalf of respondent No.1-State that petitioner/accused is not entitled to invoke inherent jurisdiction of this Court to exercise its power on the basis of compromise arrived at between the parties with respect to an offence not compoundable under Section 320 Cr.P.C.
6. Three Judges Bench of the Apex Court in Gian Singh Vs. State of Punjab and Ors. reported in(2012) 10 SCC 303, explaining that High Court has inherent power under Section 482 of the Code of Criminal Procedure with no statutory limitation including Section 320 Cr.PC, has held that these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and these powers can be exercised to quash criminal proceedings or complaint or FIR in appropriate cases where offender and victim have settled their ::: Downloaded on - 12/05/2022 20:04:19 :::CIS 5 Cr.MMO No. 227 of 2022 dispute and for that purpose no definite category of offence can be prescribed. However, it is also observed that Courts must have due regard to nature and gravity of the crime and criminal proceedings in .
heinous and serious offences or offence like murder, rape and dacoity etc. should not be quashed despite victim or victim family have settled the dispute with offender. Jurisdiction vested in High Court under Section 482 Cr.PC is held to be exercisable for quashing criminal flavour particularly r offences to proceedings in cases having overwhelming and predominatingly civil arising from commercial, financial, mercantile, civil partnership, or such like transactions, or even offences arising out of matrimony relating to dowry etc., family disputes or other such disputes where wrong is basically private or personal nature where parties mutually resolve their dispute amicably. It was also held that no category or cases for this purpose could be prescribed and each case has to be dealt with on its own merit but it is also clarified that this power does not extend to crimes against society.
7. The Apex Court in Parbatbhai Aahir alias Parbhathbhai Bhimsinghbhai Karmur and others vs. State of Gujarat and another, (2017) 9 SCC 641, summarizing the broad principles regarding inherent powers of the High Court under Section 482 Cr.P.C. has recognized that these powers are not inhibited by provisions of Section 320 Cr.P.C.
8. The Apex Court in case Narinder Singh and others vs. State of Punjab and others reported in (2014)6 SCC 466 and also in State of Madhya Pradesh vs. Laxmi Narayan and others (2019) 5 SCC 688, has summed up and laid down principles by which the High Court would be guided in giving adequate treatment to the settlement ::: Downloaded on - 12/05/2022 20:04:19 :::CIS 6 Cr.MMO No. 227 of 2022 between the parties and exercise 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 criminal .
proceedings.
9. No doubt Sections 363, 366 and 376 of IPC, Section 4 of POCSO Act and Section 3(2) of SC/ST Act are not compoundable under Section 320 Cr.P.C. However, as explained by Hon'ble Supreme Court in Gian Singh's, Narinder Singh's, Parbatbhai Aahir's and Laxmi Narayan's cases supra, power of High Court under Section 482 Cr.P.C is not inhibited by the provisions of Section 320 Cr.P.C and FIR as well as criminal proceedings can be quashed by exercising inherent powers under Section 482 Cr.P.C, if warranted in given facts and circumstances of the case for ends of justice or to prevent abuse of the process of any Court, even in those cases which are not compoundable where parties have settled the matter between themselves.
10. In Madan Mohan Abbot vs. State of Punjab, (2008) 4 SCC 582, the Hon'ble Supreme Court emphasized and advised that in the matter of compromise in criminal proceedings, keeping in view of nature of this case, to save the time of the Court for utilizing to decide more effective and meaningful litigation, a commonsense approach, based on ground realities and bereft of the technicalities of law, should be applied.
11. Learned counsel for the petitioners has also referred to judgments passed by the Coordinate Benches in Cr.MMO No. 301 of 2018, decided on 24.04.2019, titled as Asha Devi & others vs. State of Himachal Pradesh & another; Cr.MMO No. 399 of 2018, decided on 18.09.2018, titled Court of H.P. as Kajal & another vs. State of ::: Downloaded on - 12/05/2022 20:04:19 :::CIS 7 Cr.MMO No. 227 of 2022 Himachal Pradesh & another; Cr.MMO No. 244 of 2019, decided on 07.05.2019 titled as X vs. State of H.P. & others, Criminal Miscellaneous (Main) No. 139 of 2018, decided on 26.5.2018, titled Sahil Chaudhary .
vs. State of H.P. and another, Cr.MMO No. 464 of 2018 decided on 9.8.2019 titled as Shri Devi vs. State of H.P. and another, Cr.MMO No. 377 of 2019 decided on 27.8.2019 titled as Shishpal vs. State of H.P. and another and Cr.MMO No. 41 of 2019 decided on 24.9.2019 titled as Ravi Goyal and another vs. State of H.P. and others; Rahul Thakur Vs. State of H.P., reported in 2020(2) Shim.LC 629; Cr.MMO No. 423 of 2020, titled as Rajneesh Kumari Vs. State, decided on 15.3.2021;
Cr.MMO No. 144 of 2021, Ashok Kumar Vs. State, decided on 27.4.2021; Cr.MMO No. 104 of 2022, titled as Sukh Dev V. State of H.P. decided on 25.3.2022; and Cr.MMO No. 164 of 2022, titled as Sonu Vs. State of H.P & other, wherein FIRs registered under Section 376 IPC and in some cases under Section 376 IPC read with provisions of POCSO Act have also been quashed in similar circumstances where victims and accused had married to each other.
12. Observations with respect to individual, family and societal interest, made by this Court in case Rahul Thakur vs. State of H.P, reported in 2020(2) Shim.LC 629, are also relevant in present case which are as under:-
"13. Observation of a Coordinate Bench of this Court in similar case decided on 12.01.2017 in Cr.MMO No. 385 of 2016, titled as Chander Vir Kaundal vs. State of H.P., would also be relevant, where it is recorded that looking at the case from another angle, since the petitioner has solemnized marriage with respondent, obviously, there is no possibility of her supporting the charge in case the petitioner is put to trial. Therefore, in such ::: Downloaded on - 12/05/2022 20:04:19 :::CIS 8 Cr.MMO No. 227 of 2022 circumstances, the continuation of criminal proceedings would only cause untoward torture or harassment apart from creating undue social and psychological pressure upon the private parties .
and it will be an extremely sad story in case complainant is called in the witness box to depose against the accused, who is none other than her husband.
14. In present case also, deposition of victim in the Court in consonance with prosecution case would lead to landing her husband and parents in jail and pushing her in pitch dark and unnecessary trouble.
... ...... .....
16. The ratio of law laid down by the Apex Court on the issue of permitting quashing of FIR in such cases, the Courts must consider the interest of public at large and the offence offending the Society at large should not be permitted to be compromised and quashing of FIR or criminal proceedings on the basis of such compromise should not be permitted. Present case is somewhat different from general category, as in present case, it is not on the basis of compromise that quashing of FIR has been sought for, but it is a case where interest of victim is also involved and welfare of victim appears to be in closing criminal proceedings as she has proclaimed herself to be wife of accused and the case has been registered against petitioner-accused, only for the reason that at that time victim below 18 years of age and further, it is not a case where it can be said that victim was abducted forcefully and ravished mercilessly and was used as an instrument of enjoyment and thrown out after the use but it is a case where sexual intercourse was consensual for misrepresentation on the part of victim and now victim is living in her matrimonial house happily. Now in the facts and circumstances of the case, this case cannot be termed as a case subjecting the victim-complainant forcibly to illicit sexual intercourse. Further, it is a peculiar kind of case where there is a conflict between interest of victim and societal interest. Interest of victim is not purely private in nature as rehabilitation and survival of victim is another issue which involves public interest because to ensure rehabilitation and provide resources for survival of victim is also responsibility of society. Considering entire facts ::: Downloaded on - 12/05/2022 20:04:19 :::CIS 9 Cr.MMO No. 227 of 2022 and circumstances of the case, in my opinion, balance lies in favour of the prayer of the victim.
17. Family is a primary unit of society, which gives protection to .
all family members. Therefore, there is always endeavour to save the family. By saving a family, we definitely save the fabric of society and thus any endeavour to save the family is also interest of society. Therefore, in present case, there is conflict of interest not only between victim and societal interest but also amongst divergent societal interest i.e. to continue proceedings for commission of an offence having adverse impact on the society and to save the family in larger interest of society."
13. It is also a case where two societal interests are in clash. To punish the offenders for a crime, involved in present case, is in the interest of society, but, at the same time, husband is taking care of his wife and in case, husband is convicted and sentenced for societal interest, then, wife will be in great trouble and their future would be ruined. It is also in the interest of society to settle and resettle the family for their welfare. In present, act on the part of respondent No. 2 taken for safety of petitioner No. 2 has become an offence for age of the petitioner No. 2 at relevant point of time.
14. Keeping in view nature and gravity of offence and considering facts and circumstances of the case in entirety, I am of the opinion that present petition deserves to be allowed for ends of justice and the same is allowed accordingly and FIR No. 104 of 2020, dated 18.4.2020, registered in Police Station Jawali, District Kangra, Himachal Pradesh is quashed. Consequent to quashing of FIR, criminal proceedings pending before learned Additional Sessions Judge (Fast Track) Kangra, District Kangra at Dharamshala initiated against petitioner No. 1-accused in pursuance thereto, are also quashed.
::: Downloaded on - 12/05/2022 20:04:19 :::CIS 10 Cr.MMO No. 227 of 202215. Petition stands disposed of in above terms.
16. Petitioner is permitted to produce a copy of this judgment, downloaded from the web-page of the High Court of Himachal Pradesh, .
before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
(Vivek Singh Thakur), th 6 May, 2021 Judge.
(Keshav) ::: Downloaded on - 12/05/2022 20:04:19 :::CIS