Himachal Pradesh High Court
Arsh Guleria vs State Of H.P. And Anr on 30 September, 2024
Neutral Citation No. ( 2024:HHC:9322 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No 722 of 2024.
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Reserved on: 02.09.2024.
Date of Decision: 30.09.2024.
Arsh Guleria ...Petitioner
Versus
State of H.P. and Anr. ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No For the Petitioner : Mr. Ajay Chandel, Advocate. For the Respondents : Mr. Prashant Sen, Deputy Advocate General for respondent No.1/State.
Mr. Arun Kumar, Advocate for
respondent No.2.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for quashing of FIR No. 170 of 2023, dated 19.09.2023 for the commission of an offence punishable under Section 376 of the Indian Penal Code (hereinafter referred to as IPC) and Section 6 of Protection of Children from Sexual Offences Act (hereinafter 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 30/09/2024 20:32:30 :::CIS 2Neutral Citation No. ( 2024:HHC:9322 ) referred to as POCSO Act) registered at Police Station Sarkaghat, District Mandi, H.P. .
2. It has been asserted that the FIR was lodged on the statement of the informant, who had given birth to a child in Government Hospital Gohar and disclosed her age as 17 years and five months. The informant is major and aged 19 years and 5 months, as per the horoscope. The engagement ceremony was held on 03.10.2022 and the marriage was solemnized on the 6 th and 7th of December 2023. The mother and the child were brought to the petitioner's home on 18.09.2023. The marriage was solemnized on 25.09.2o23 under the supervision and presence of close relatives of both sides. The petitioner and the informant were good friends. The informant was undergoing training in MPHW. She visited the hospital with the complaint of stomach ache and was informed by the doctor that she was pregnant. The police was called and FIR was registered. Since the parties are married to each other, the continuation of the proceedings would cause great prejudice to the parties; therefore, it was prayed that the present petition be allowed and the FIR be quashed.
3. The informant appeared before the Court and made a statement on 08.08.2024 to the effect that she had solemnized ::: Downloaded on - 30/09/2024 20:32:30 :::CIS 3 Neutral Citation No. ( 2024:HHC:9322 ) marriage with the accused and both of them are residing happily as husband and wife. She had no objection in case the petition was .
allowed and the FIR was ordered to be quashed. She has filed a copy of the marriage certificate, her birth certificate, and her matriculation certificate showing her date of birth as 24.04.2006.
4. A Division Bench of this Court held in Ranjeet Kumar Vs. State of H.P., Cr.MMO No. 648 of 2023, decided on 8.12.2023 that the Court has to consider whether the allegations prima facie constitute the ingredients of the offence, whether the settlement is in the best interest of the minor victim and whether continuation of the proceedings against the accused and the participation of the minor victim in those proceedings would adversely affect the mental, physical and emotional well-being. It was observed: -
"37. As per Section 2(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015 'best interest of the child' means the basis for any decision taken regarding the child and to ensure the fulfilment of its basic rights and needs, identity, social well-being and physical, emotional and intellectual development. Thus, while dealing with the petitions moved by the parents or guardians of the sexual assault victim to quash the criminal proceedings on the ground of compromise, the Court must consider whether the allegations prima facie constitute the ingredients of the offence, whether the settlement is in the best interest of the minor victim and whether continuation of the proceedings against the accused and the participation of the minor victim in those proceedings would adversely affect the mental, ::: Downloaded on - 30/09/2024 20:32:30 :::CIS 4 Neutral Citation No. ( 2024:HHC:9322 ) physical and emotional well-being of the latter. (See: Vishnu and another vs. State of Kerala, Crl. Misc. Case No. 5076 of 2018, decided on 24.05.2023).
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38. Thus, what can be summarised as the broad principles with regard to the quashing of criminal proceedings on the basis of compromise arrived at between the parties, are as follows:-
(i) Section 482 preserves the inherent powers of the High Court to prevent abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-
compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in the exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;
(a) to give effect to the order of the Court;
(b) to secure the ends of justice; or
(c) to prevent an abuse of the process of any court;
(v) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the ::: Downloaded on - 30/09/2024 20:32:30 :::CIS 5 Neutral Citation No. ( 2024:HHC:9322 ) High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the .
family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vi) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(vii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(viii) There is yet an exception to the principle set out in propositions 16.8 and 16.9 above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
(ix) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(x) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the ::: Downloaded on - 30/09/2024 20:32:30 :::CIS 6 Neutral Citation No. ( 2024:HHC:9322 ) disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and .
(xi) The High Court having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in the exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non- compoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system.
(xii) As opposed to Section 320 Cr.P.C., where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extraordinary power enjoined upon High Court under Section 482 Cr.P.C. can be invoked beyond metes and bounds and Section 320 Cr.P.C. Nonetheless, such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings bearing in mind;
(i) The nature and effect of the offence on the consciousness of the society;
(ii) Seriousness of injury, if any;
(iii) Voluntary nature of compromise between the accused and victim;
(iv) Conduct of the accused; prior to and after the occurrence of the purported offence or other relevant considerations.
(xiii) The Court is to bear in mind that every case is unique and must, therefore, essentially be decided based on its peculiar facts and circumstances. The viability of quashing criminal proceedings on the ground that the accused and the ::: Downloaded on - 30/09/2024 20:32:30 :::CIS 7 Neutral Citation No. ( 2024:HHC:9322 ) victim had settled the disputes revolves ultimately around the facts and circumstances of each case, therefore, no straight jacket formula can be evolved.
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(xiv) Where the Court has such facts on record, which clearly exhibit that the criminal prosecution involving non- compoundable sexual offences against women and children results in greater injustice to the victim and its closure will promote well-being and the possibility of conviction is remote, it can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach and may very well decide to quash such proceedings upon a compromise arrived at between the accused and the victim, after taking into consideration all the relevant facts and circumstances of the particular case including the nature, magnitude, consequence of the crime and genuineness of the compromise.
(xv) While dealing with the petition moved by the parents or guardians of the sexual assault victim to quash the criminal proceedings on the ground of compromise, the Court must consider whether the allegations prima facie constitute the ingredients of the offence, whether the settlement is in the best interest of the minor victim and whether continuation of the proceedings against the accused and the participation of the minor victim in those proceedings would adversely affect the mental, physical and emotional well being of the latter."
5. It was held that sexual offences which are grave, heinous and gruesome can invariably never be a subject matter of compromise. It was observed-
"39. These are only some of the broad principles that are required to be borne in mind while considering the plea to quash criminal proceedings involving non-compoundable sexual offences based on compromise.::: Downloaded on - 30/09/2024 20:32:30 :::CIS 8
Neutral Citation No. ( 2024:HHC:9322 )
40. At this stage, we need to enter a caveat and re-emphasize that sexual offences which are grave, heinous and gruesome in nature can invariably never be a subject matter of compromise."
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6. It was further held that where the parties had solemnized marriage, the Court could quash the FIR based on such compromise. The continuation of the proceedings would result in a disturbance in their happy family life. It was observed.
"41. Adverting to the facts of the present case, no doubt, the accused has been charged for the offences punishable under Sections 366, 376, 212 and 120-B IPC and Section 4 of the POCSO Act, but then it cannot be ignored that the criminal prosecution was set into motion only because the victim happens to be a child but otherwise, she was in love with the accused. It is also not in dispute that the accused was interested to solemnise marriage with the child victim and has, in fact, solemnised marriage on 09.03.2023 and thereafter has also entered into a compromise on 17.04.2023. In such circumstances, even while bearing in mind the pertinent observations of the Hon'ble Supreme Court in Alakh Alok Srivastava and Dr. Maroti's cases (supra), the Court could still quash the FIR after satisfying itself that the child victim and her family members had settled the dispute and the victim got married and was leading a peaceful life and, therefore, allowing the prosecution to continue in such case would only result in disturbance in their happy family life and ends of justice in such circumstances would demand that the parties be allowed to compromise. However, before doing so, the Court must ensure that the marriage is not a camouflage to escape punishment and the consent given by the victim for compromise is voluntary. The Court must also be satisfied after considering all the facts and circumstances of the case that quashing the proceedings would promote justice for the victim and continuance of the proceedings would cause injustice.::: Downloaded on - 30/09/2024 20:32:30 :::CIS 9
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42. Therefore, in such circumstances, compounding the offence, in our considered opinion would enable both parties to lead a life of respect and dignity in the society. Once, there .
is no dispute between them, then obviously the law cannot be so harsh so as to stand as a wall between the parties, because the law has to secure the future of the parties, and continuation of criminal proceedings in such circumstances, would only cause an irreparable harassment and hardship and may even tarnish and spoil the reputation of the victim. The Court proceedings cannot be permitted to degenerate into a weapon of harassment and persecution. The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in the exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. No embargo, be in the shape of Section 320(9) of the Cr.P.C. or any other such curtailment can whittle down the power of the High Court under Section 482 Cr.P.C. to do complete justice."
7. In the present case the fact that the parties had solemnized marriage is duly established by the marriage certificate issued by Sub Divisional Magistrate, Sarkaghat and its authenticity has not been challenged by anyone. Therefore, the genuineness of marriage has to be accepted as correct.
8. In view of the binding precedents, the present petition is allowed and FIR No. 170 of 2023, dated 19.09.2023, registered for the commission of offences punishable under Sections 376 of IPC ::: Downloaded on - 30/09/2024 20:32:30 :::CIS 10 Neutral Citation No. ( 2024:HHC:9322 ) and Section 6 of POCSO Act at Police Station Sarkaghat, District Mandi, H.P. is quashed. Consequent upon the quashing of FIR, .
criminal proceedings pending/initiated against the petitioner-
accused in pursuance thereto, are also quashed.
9. Petition stands disposed of in the above terms, so also pending miscellaneous applications, if any.
10. Parties are permitted to produce a copy of this judgment, downloaded from the webpage of the High Court of Himachal Pradesh before the authorities concerned, and the said authorities shall not insist on the production of a certified copy but if required, may verify passing of the order from Website of the High Court.
(Rakesh Kainthla) Judge 30th September, 2024 (Nikita) ::: Downloaded on - 30/09/2024 20:32:30 :::CIS