Himachal Pradesh High Court
Amit Kumar & Another vs State Of Himachal Pradesh & Others on 17 December, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 384 of 2020 Order reserved on : 14.12.2020 Date of Decision : 17.12.2020.
.
Amit Kumar & Another ...Petitioners.
Versus
State of Himachal Pradesh & others ...Respondents.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No. For the petitioners : Petitioners in person with Mr. Ashok Chaudhary, Advocate.
For the respondents : Mr. Nand Lal Thakur, Addl. A.G., for respondent No.1.
r Respondents No.2 & 3 in person
with Mr. M.A. Safee, Advocate.
Anoop Chitkara, Judge.
For quashing of FIR and consequential proceedings, husband and wife, who are petitioners No.1 & 2, have come up before this Court under Section 482 CrPC on the grounds that the FIR was registered on the basis of the complaint of the father of the wife, wherein allegations were imputed against the husband for kidnapping her in November 2017, when she was minor, aged 16 years, and they were unmarried, whereas she had left her home on her own, and on attaining majority, they voluntarily married, and are now living happily.
2. Based on the complaint of second respondent Sh. Om Prakash, which disclosed cognizable and non-bailable offences, an FIR No.295 of 2017 was registered in Police Station, Kangra, H.P. The investigation revealed that second respondent, Shri Om Prakash, gave a written complaint to the SHO, Police Station, Sadar, District Kangra, H.P. He complained that his daughter had gone to the School as a routine. In the evening, she did not return. Upon that they searched her by calling relatives, but she could not be traced. He further alleged that they have suspicion that Amit Kumar, petitioner No.1 herein has allured his 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 2daughter. His wife has received a message of 'Sorry' from a mobile number ending with digits 190 and another phone was received from Phone number ending with digits 336. Both these phone numbers were used by Mehar Chand, father of Amit Kumar. As such, if anything happened to his daughter, who was .
minor, they would be responsible. Since the contents disclosed cognizable and non-bailable offences, as such the Police registered FIR against petitioner Amit Kumar. After completion of the investigation, the police filed report under Section 173 Cr.P.C.
3. The present petition has been filed jointly by Amit Kumar and the girl. In the memo of parties, she has given her address as wife of Amit Kumar.
The petition is supported by the affidavit of Amit Kumar. The contents of the petition reveals that the petitioner and the girl had solemnized marriage on 26.11.2018 at Mata Mansa Devi Temple, Chamunda, Tehsil Dharamshala, District Kangra, H.P. They have annexed the affidavits given at that time and extract of entry of the marriage as Annexure P-3. A perusal of Annexure P-3 reveals that Amit Sharma, son of Shri Mehar Chand Sharma, whose date of birth is 25.02.1996, had married the victim on 26 th November, 2018. In the petition, the parents of the victim have been arraigned as respondents No.2 and 3 and the State of Himachal Pradesh as respondents No.1.
4. On 14.12.2020, this matter was taken up in Physical Court as a special case. Although, the proceedings in other cases were taken through video conference due to Covid-19 pandemic.
5. Learned Additional Advocate General has also handed over the reply in the Court, which is taken on record.
6. When the matter was heard on 14.12.2020, the prosecutrix (Petitioner No. 2) was present in Court along with her husband namely Amit Kumar, father Shri Om Prakash and mother Smt. Manju Lata. Learned Additional Advocate General, on instructions received from the Police official present in the Court, did not dispute their identity.
7. The parents of the girl were also present in the Court. Initially the father was called and he was inquired, on which he stated that his daughter had married on attaining the age of majority and she is living happily. Subsequently, his statement on oath was recorded. After that the father was sent outside the ::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 3 Court room and mother of the girl Smt. Manju Lata was inquired about the conditions of the girl. This Court specifically inquired from Ms. Manju Lata about the fact that whether in alone, the victim complained about her married life, to which she stated that as on date, her daughter is living happily.
.
8. Father, who is arraigned as second respondent stated in presence of his counsel that the Police had registered FIR No.295 of 2017, Annexure P-1 on his complaint. At that time, his daughter was around 16 years of age. She had left the home on her own. Now she has solemnized marriage with Amit Kumar son of Shri Mehar Chand, resident of village Baag, P.O. Daulatpur, Tehsil and District Kangra, Himachal Pradesh. As per his knowledge, his daughter is living happily with her husband and he does not want to continue with the FIR and it be quashed. He is making this statement without any coercion and free state of mind. He has firm belief that if this FIR is not quashed, it may be a factor in spoiling of matrimonial life of his daughter and on the other hand, he has firm belief that if this FIR is quashed, it will lead to very happy married life of his daughter.
9. Mother, who is arraigned as second respondent stated in presence of her counsel that her daughter had voluntarily left the home, at the time, when she was 16 years of age. After attaining the age of majority i.e. 18 years, she performed marriage with Amit Kumar. Her daughter is living happily with her husband and she wants this FIR be quashed.
10. After that parents were sent out and the girl was called. At this stage, in the Court room, proceedings were conducted in Camera and apart from female Research Assistant of Court, Private Secretary, learned counsel for the parties, none was present. On inquiry from the victim, she appeared to be a bold girl and stated that now she has taken admission in the first year of LLB course in Punjab University, Chandigarh. She told that she had left the home on her own and she was and she is in love with the petitioner and is living very happily with him till date. She stated that she is hopeful that her husband would not take advantage of this compromise and would keep her happy in future also. Seeing the demeanor of the girl, her statement was recorded separately.
11. The girl, in her statement on oath, has stated that she has compromised the entire matter with the accused without any coercion, duress, pressure or any wrong tactics. She further states that she made statement in her ::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 4 full conscious state of mind and admitted that she is aware that this stand would result in the quashing of F.I.R. against the petitioner/accused. She also stated that she, on her own, had left her father's home, when she was 16 years of age. On attaining the age of 18 years, she, on her own, performed the marriage with .
accused Amit Kumar. It was a love marriage. She was in love with him when she was 14 years of age. After her wedding with Amit Kumar, she is living happily with him. She wanted this FIR, registered at the instance of her father, to be quashed. She had made a statement under Section 164 Cr.P.C., before the concerned Magistrate under the pressure of her relatives. At that time, keeping in view her conduct of leaving her home, without informing her parents has put her under great mental stress, which led to that statement. Whatever, she had stated before concerned Judicial Magistrate, in her statement under Section 164 Cr.P.C., was not out of her free will. Today, what she is stating before this Court is in absolute free and compose state of mind. She is now 20 years of age and she understands what is good and what is bad for her, what is right and what is wrong for her and she is fully informed. She wanted this FIR to be quashed because its continuation may affect her happy married life.
12. The demeanor of the girl was seen by the Court and it was noticed that she was well oriented to place and time; was in a perfect mental and physical state, wearing costumes of a newly wedded wife; she was looking happy, there was no sign of fear and she was sitting in the Court room quietly. This Court did not notice any sort of threat directly or even indirectly on her. She stated that she is a student of 1st year of Law from Panjab University, Chandigarh.
13. Admittedly after attainment of majority, the girl married the accused. They are living together a happy married life.
14. Although, the withdrawal of FIR would be through District Magistrate as a normal procedure. However, there is inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure to intervene in such kind of matter and it is not the requirement of law that the cancellation has to be approved only through the District Magistrate. Inherent Jurisdiction of High Court under section 482 CrPC can always be exercised, depending upon the facts and circumstances of each and every case.
::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 515. Even if this case is put to trial, the parties are likely to maintain the stand which they have taken in this compromise which is likely to result in the acquittal of the accused. Prima facie, it appears that the complaint was used because the girl had left home and accused was a suspect. The parties are likely to .
live together for lifetime and intervention at this stage would create cordial environment for peaceful relation between them.
16. If the inherent jurisdiction under Section 482 CrPC is not invoked, then it may lead to bitterness in relations. Every time the accused will be summoned in the Court, he would blame complainant for the money spent on case and travel.
17. Yuvan Noah Harari, in his world famous book, "Sapiens- A Brief History of Humankind", (London: Vintage, 2011), p-427-428, wrote about the impact of happy married life, as follows:
Family and community seem to have more impact on our happiness than money and health. People with strong families who live in tight-knit and supportive communities are significantly happier than people whose families are dysfunctional and who have never found (or never sought) a community to be part of. Marriage is particularly important. Repeated studies have found that there is a very close correction between good marriages and high subjective well-being, and between bad marriages and misery. This holds true irrespective of economic or even physical conditions. An impecunious invalid surrounded by a loving spouse, a devoted family and a warm community may well feel better than an alienated billionaire, provided that the invalid's poverty is not too severe and that his illness is not degenerative or painful.
STAGE OF QUASHING FIR:
18. In Ashok Chaturvedi and others v. Shitul H. Chanchani and another, 1998(7) SCC 698, Hon'ble Supreme Court holds that the determination of the question as regards the propriety of the order of the Magistrate taking cognizance and issuing process need not necessarily wait till the stage of framing the charge. The Court observed thus :-
.... .... ....This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of the Criminal Procedure Code, he is debarred from approaching the court even at an earliest (sic earlier) point of time when the Magistrate takes cognizance of the offence and ::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 6 summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing .
the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under section 482 of the Code can be exercised.
19. In Kunstocom Electronics (I) Pvt. Ltd. v. Gilt Pack Ltd. and another, (2002) 2 SCC 383, Hon'ble Supreme Court holds as under:-
8. .... .... ....There is no hard and fast rule that the objection as to cognizability of offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge.
20. In Girish Sarwate v. State of A.P., 2005(1) R.C.R.(Criminal) 758, the Full Bench of Andhra Pradesh High Court holds as under:-
30. In the light of these judgments of the Supreme Court, we have no doubt in our mind that under Section 482 of the Code of Criminal Procedure, the High Court has the power to quash an FIR or even a complaint subject to limitations and conditions laid down by the Hon'ble Supreme Court in various judgments.
It need not wait for completion of investigation and taking cognizance by the Magistrate. There is no dispute that this power has to be exercised by the High Courts very sparingly with circumspection and also in rarest of rare cases. Though there are limitations on exercise of power by the High Court, yet that would not in any way suggest that High Court lacks the power.
JUDICIAL PRECEDENTS ON JURISPRUDENCE OF QUASHING:
21. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, a three Judges Bench of Hon'ble Supreme Court observed as under:-
6. .... ... ...It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some ::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 7 categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the .
impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such case, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide : In Re: Shripad G. Chandavarkar, AIR 1928 Bom 184, Jagat Chandra Mozumdar v. Queen Empress, ILR 26 Cal 786, Dr. Shankar Singh v. State of Punjab, 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Roy v. Gobina Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. Sivarama Subramania, ILR 47 Mad 722 : (AIR 1925 Mad 39).
::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 822. In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, 1988 (1) SCC 692, the Hon'ble Supreme Court has held as under:-
7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by .
the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
JUDICIAL PRECEDENTS ON QUASHING ON COMPROMISE:
23. In Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. vs. State of Gujarat & anr., Criminal Appeal No. 1723 of 2017, decided on 4.10.2017, a Three Judges Bench of Hon'ble Supreme Court, laid down the broad principles for quashing of FIR, which are reproduced as follows:
15. The broad principles which emerge from the precedents on the subject, may be summarised 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 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 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;::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 9
(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;
(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.
24. A three Judges bench of Hon'ble Supreme Court, in Gian Singh v. State of Punjab, 2012(10) SCC 303, has settled the law on quashing on account of compromise/compounding, in the following terms:
::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 1053. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, 'nothing in this Code' which means that the provision is an overriding provision. These words leave no .
manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.
58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under Indian Penal Code or offences of moral turpitude under special statutes, like Prevention of Corruption ::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 11 Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out .
of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.
25. In Criminal Appeal No. 349 of 2019, titled as State of Madhya Pradesh vs. Laxmi Narayan, decided on 5th of March, 2019, the Hon'ble Supreme Court has held as under:
13. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:
i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
ii) such power is not to be exercised in those prosecutions which involved 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;
iii) similarly, such power is not to be exercised for the offences under the special statutes like 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;
iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the ::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 12 criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves.
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 framing 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. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;
v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non- compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.
14. Insofar as the present case is concerned, the High Court has quashed the criminal proceedings for the offences under Sections 307 and 34 IPC mechanically and even when the investigation was under progress. Somehow, the accused managed to enter into a compromise with the complainant and sought quashing of the FIR on the basis of a settlement. The allegations are serious in nature. He used the fire arm also in commission of the offence. Therefore, the gravity of the offence and the conduct of the accused is not at all considered by the High Court and solely on the basis of a settlement between the accused and the complainant, the High Court has mechanically quashed the FIR, in exercise of power under Section 482 of the Code, which is not sustainable in the eyes of law. The High Court has also failed to note the antecedents of the accused.
NON-COMPOUNDABLE OFFENCES CAN BE QUASHED:
::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 1326. In the present case, the offences are not compoundable under section 320 CrPC. However, in view of the entire facts and circumstances of the case, the inherent jurisdiction under section 482 CrPC can be invoked to quash the FIR and subsequent proceedings.
.
27. In Mahesh Chand v. State of Rajasthan, 1990 SCC 781, the Hon'ble Supreme Court holds as under:
2. The accused were acquitted by the trial court, but they were convicted by the High Court for the offence under section 307 Indian Penal Code This offence is not compoundable under law.
The parties, however. want to treat it a special case, in view of the peculiar circumstances of the case. It is said and indeed not disputed that one of the accused is a lawyer practising in the lower court. There was a counter case arising out of the same transaction. It is said that this case has already been compromised. The decision of this Court in Suresh Babu v. State of Andhra Pradesh, 1987(2) JT 361, has been also referred to in support of the plea for permission to compound the offence.
3. We gave our anxious consideration to the case and also the plea put forward for seeking permission to compound the offence. After examining the nature of the case and the circumstances under which the offence was committed, it may be proper that the trial court shall permit them to compound the offence.
28. In Y. Suresh Babu v State of A.P., 2005 (1) SCC 347, Hon'ble Supreme Court, while dealing with section 326 of IPC, which was non- compoundable offence, permitted the parties to compound the offence.
29. In Bharti v. State of Haryana, 2014(4) SCC 14, Hon'ble Supreme Court holds as under:
6. We are mindful of the fact that Section 354 of the IPC is, as of today, non-compoundable. But, as noticed by us, it was compoundable when the instant offence was committed with the permission of the court. Even then, we would have hesitated to permit compounding of the offence. But, facts of this case are very peculiar. Respondent No.2 and her husband have, even today, maintained their stand taken in the trial court that they have entered into a compromise with the appellant. As we have already noted, respondent No.2 has filed an affidavit to that effect in this Court. Compromise is, therefore, not an afterthought. Pertinently, the incident in question took-place way back in the year 2000. About 13 long years have gone-by.
In her affidavit respondent No. 2 has stated that the appellant is ::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 14 her neighbour and they are staying peacefully since 2000 till date. We are of the opinion that since the appellant and respondent No. 2 are neighbours it would be in the interest of justice to permit the parties to compound the offences. If the conviction is confirmed, the relations may get strained and the peace, which is now prevailing between the two families, may .
be disturbed. In the peculiar facts of this case, therefore, in order to accord quietus to the disputes between the appellant and respondent No. 2 and in the larger interest of peace, we permit the appellant and respondent No. 2 to compound the offences. Accordingly, offences under Sections 451 and 354 of the IPC are permitted to be compounded. The impugned judgment is set aside. The appellant is acquitted. The appellant- Bharti is in jail. The appellant-Bharti should be released forthwith, unless he is required in any other case.
30. In Saloni Rupam Bhartiya v. Rupam Prahlad Bhartiya, 2015(4) R.C.R.(Criminal) 172, a three Judges Bench of Hon'ble Supreme Court, while dealing with Section 498-A of IPC, which was non-compoundable offence, holds as follows:
It was submitted by learned counsel for the parties that in the light of the above subsequent developments especially the fact that the marriage between the parties itself stands dissolved by a decree passed by a competent court, nothing really remained between the parties to be addressed and that the conviction of the respondent-husband under Section 498A of the Indian Penal Code could be set aside. We see no reason to decline that prayer. In the circumstances, therefore, and in the light of the fact that the parties have successfully negotiated an amicable settlement sinking and resolving all their differences and disputes and finding a lasting solution on all the outstanding issues between themselves, we see no reason why the conviction recorded by the courts below and the sentence of imprisonment till the rising of the Court, which the respondent has already undergone should continue to blemish the respondent-husband. We accordingly set aside the judgment and order of conviction of the respondent under Section 498A of the Indian Penal Code.
RELIEF:
31. In view of the entirety of the facts of the case, as well as judicial precedents, a few of which have been mentioned hereinabove, I am of the considered opinion that continuation of these proceedings will only cause unnecessary burden on the trial Court but in all likelihood is going to cause distressing hardship on both the victim as well as the accused, without resulting ::: Downloaded on - 21/12/2020 20:16:28 :::HCHP 15 into any fruitful purpose whatsoever. The accused and the prosecutrix are living happily. The denial of relief may bring the bitterness in the euphoria of new wedding. Moreover, our trial Courts are already burdened with so many cases and it will be a total wastage of the valuable time of the Courts. If these types of .
proceedings are permitted to be continued and the accused are prosecuted, it will serve no purpose whatsoever. Therefore, I am of the considered opinion that this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is invoked to quash the above mentioned FIR and consequent proceedings.
32. In Himachal Pradesh Cricket Association v. State of Himachal Pradesh (SC); 2018 (4) Crimes 324, Hon'ble Supreme Court holds as under:-
47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated.
CONSEQUENCES:
33. In Shakuntala Sawhney v. Kaushalya Sawhney, (1979) 3 SCR 639, at p 642, Hon'ble Supreme Court observed as follows:
The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.
34. Consequently, this petition is allowed and FIR No.295 of 2017, registered at Police Station Kangra, District Kangra (H.P.) for the commission of offences punishable under Sections 363, 376, 506 of the Indian Penal Code and Section 4 of the POCSO, is quashed. Since FIR has been quashed, all the consequential proceedings, if any, are also quashed and set aside. The bail bonds are accordingly cancelled and discharged. Pending application(s), if any, also stands disposed of.
(Anoop Chitkara), Judge.
December 17, 2020 (ps) ::: Downloaded on - 21/12/2020 20:16:28 :::HCHP