Himachal Pradesh High Court
Prem Lal vs State Of H.P. & Others on 12 January, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 1155 of 2022
.
Date of decision: 12.1.2023
Prem Lal. ...Petitioner.
Versus
State of H.P. & others. ...Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the Petitioner.
For the Respondents:
r to
Mr.Devender K. Sharma, Advocate.
Petitioner present in person.
Mr.Harinder Singh Rawat, Additional
Advocate General, for respondents No. 1 to
3.
Mr.Dhiraj Thakur, Advocate, for respondent
No. 4.
Respondent No. 4 present in person.
Vivek Singh Thakur, Judge (Oral)
The instant petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC'), has been filed by petitioner Prem Lal, on the basis of compromise arrived at between him and respondent No. 4 Sanjana, for quashing of FIR No. 86 of 2021, dated 3.12.2021, registered in Police Station Gohar, District Mandi, H.P., under Sections 363, 366 and 376 of the Indian Penal Code (in short 'IPC') and Section 6 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act') and consequent proceedings arising thereto.
2. Petitioner Prem Lal and respondent No. 4-complainant Sanjana are present in the Court today. They have been duly Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 13/01/2023 20:31:59 :::CIS 2 Cr.MMO No. 1155 of 2021 identified by their respective counsel. Their statements, on oath, have been recorded separately.
3. In her statement, respondent No. 4-complainant has stated .
that in present case FIR has been lodged on the basis of her statement, which was recorded in the hospital as Police was called by Medical Officer in the hospital after knowing about her minor age at the time of medical checkup, when she approached the hospital for delivery of child in December, 2021. She has stated that she left her studies when she was studying in 10th Class and when she was in 9th Class in Rajouri School, she came in contact of Prem Lal and they fell in love with each other and decided to marry with each other. She has stated that in August, 2020, she informed Prem Lal that she had become major and thereafter they, without informing anything to their families, solemnized marriage and thereafter started living like husband and wife in the house of Prem Lal and during that period she became pregnant. She has further stated that for delivery of child, they went to Government Hospital, Sundernagar where present FIR was lodged in December, 2021. She has stated that she had informed her incorrect age to Prem Lal as she wanted to marry him as soon as possible and in fact at the time of marriage she was minor as her date of birth is 31.7.2004 (copy of date of birth certificate has been placed on record). She has stated that now she has attained majority after completion of 18 years on 31.7.2022 and she has decided to continue this marriage with their mutual consent as they have accepted each other as life partners. She has stated that they are residing under one roof and after solemnization of marriage their parents have also accepted the marriage. She has further stated that her mother-in-law ::: Downloaded on - 13/01/2023 20:31:59 :::CIS 3 Cr.MMO No. 1155 of 2021 has expired and her father-in-law is residing with them in the same house. She has stated that their marriage has also been entered in Parivar Register of Gram Panchyat Kiling, Tehsil Chachoit, District .
Mandi, H.P. and it is in her interest as well as in the interest of family that criminal proceedings initiated against her husband Prem Lal are closed after quashing the FIR, as continuation of criminal proceedings shall be detrimental to her interest as well as interest of the families of both sides.
4. Petitioner Prem Lal in his statement while endorsing the statement of respondent No. 4 Sanjana to be true and correct, has undertaken to keep his wife happy and to maintain her throughout her life as well as family including their children. He has further stated that at the time of solemnization of marriage, he was not knowing correct age of Sanjana and had it been in his knowledge, he would have waited for solemnization of marriage.
5. Petitioner Prem Lal and respondent No. 4 Sanjana 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.
6. 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(s) not compoundable under Section 320 Cr.P.C.
7. 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 ::: Downloaded on - 13/01/2023 20:31:59 :::CIS 4 Cr.MMO No. 1155 of 2021 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 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 proceedings in cases having overwhelming and predominatingly civil flavour particularly offences 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.
8. 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.
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9. 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 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.
10. No doubt Sections 363, 366 and 376 of IPC, and Section 6 of POCSO 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.
11. 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.
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12. 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 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.
13. 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:-
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"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 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.
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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 ::: Downloaded on - 13/01/2023 20:31:59 :::CIS 8 Cr.MMO No. 1155 of 2021 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 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."
14. 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.
15. 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. 86 of 2021, dated 3.12.2021, registered in Police Station Gohar, District Mandi, H.P. is quashed. Consequent to quashing of FIR, criminal proceedings initiated against petitioner in pursuance thereto, are also quashed.
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16. Petition stands disposed of in above terms.
17. Parties are 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, passing of order may be verified from Website of the High Court.
(Vivek Singh Thakur), th 12 January, 2023 Judge.
(Keshav) r
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