Himachal Pradesh High Court
Rohit vs State Of H.P. & Others on 2 December, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 986 of 2022
.
Date of decision: 2.12.2022
Rohit. ...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.Ravinder Singh Chandel, Advocate.
Petitioner present in person.
Mr.Raju Ram Rahi, Deputy Advocate
General, for respondent No. 1.
Mr.Basant Pal Thakur, Advocate, for
respondents No. 2 and 3.
Respondents No. 2 and 3 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 Rohit, on the basis of compromise arrived at between them and respondents No. 2 and 3 Mani Ram and Suman, for quashing of FIR No. 8 of 2022, dated 13.1.2022, registered in Police Station Sunni, District Shimla, H.P. under Sections 376, 313, 506 and 201 of the Indian Penal Code (in short 'IPC') and Sections 4, 6 and 21 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act') and Section 3(1)(w)(i) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short "SC/ST Act") and consequent proceedings arising thereto. Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 05/12/2022 20:31:59 :::CIS 2 Cr.MMO No. 986 of 2022
2. Petitioner Rohit, respondents No. 2 and 3 Mani Ram and Suman and Asha Devi (wife of respondent No. 2 and mother of respondent No. 3) are present in the Court, and have been duly .
identified by their respective counsel. Their statements, on oath, have been recorded separately and placed on the file.
3. In his statement, petitioner Rohit has stated that he is driver by profession and presently residing in Bhatakuffar, District Shimla, H.P. and when respondent No. 3 Suman was studying in +1 in Government Senior Secondary School, Mandorghat, he came in her contact and since then they were knowing each other. He has further stated that they have developed intimacy with each other and decided to marry and during these relations they developed physical relations, causing pregnancy to Suman and she alongwith her mother was brought to Kamla Nehru Hospital, Shimla and she was admitted in the Hospital in January, 2022 and at that time they had disclosed age of respondent Suman as 20 years during her admission in the hospital. He has further stated that because of health condition of Suman it was advised by Doctor to abort the child, but at the same time Doctor had informed the Police, whereupon Police from Police Station, Chhota Shimla had visited the hospital and had recorded his statement and also statements of Asha Devi, mother of Suman as well as Suman and they had disclosed age of Suman as 20 years with further submission that marriage of Suman and him was settled and, therefore, they were knowing each other and due to their relations Suman became pregnant and it was also disclosed to the Police by Aha Devi, mother of Suman that they were not intending to initiate any criminal proceedings. He has further stated that at that time father of Suman, Mani Ram- ::: Downloaded on - 05/12/2022 20:31:59 :::CIS 3 Cr.MMO No. 986 of 2022 respondent No.2 was not knowing about these relations and after having knowledge of relations, he on 13.1.2022 lodged FIR against him as he was suspecting foul play on the part of petitioner whereas .
petitioner was keen to marry Suman and, therefore, on attaining age of marriage by Suman he, with consent of parents of Suman, has solemnized marriage with Suman on 26.9.2022 in a temple of Mansa Mata situated in Mandorghat, Tehsil Sunni, District Shimla, H.P. Suman is residing with him at Bhatakuffer, Shimla, District Shimla, H.P.
4. He has further stated that earlier his mother was not accepting the marriage, but now she has also accepted their marriage. He has stated that their marriage has been registered in the Panchyat on 12.10.2022 at registration No. 14 under Registration of Marriage Act and certificate issued by Marriage Registrar, Gram Panchyat Mandorghat has also been placed on record and name of Suman has also been entered in Family Register of Gram Panchyat Juni Village Kandola, Development Block Basantpur, Tehsil Sunni, District Shimla, H.P. and copy of Family Register has also been placed on record. He has further stated that he loved suman and he has solemnized marriage with her and is keeping her as his wife and he has undertaken to keep her happy and to maintain her and child/children, to be born from the wedlock being his duty as husband and father. He has further stated that after solemnization of marriage they are living under one roof as husband and wife. He has further stated that as parents of Suman, i.e. Mani Ram and Asha Devi have also consented for marriage, therefore, complainant Mani Ram has agreed to withdraw the case for quashing FIR and criminal proceedings arising thereto for their better, happy and healthy matrimonial life. ::: Downloaded on - 05/12/2022 20:31:59 :::CIS 4 Cr.MMO No. 986 of 2022
5. Smt. Suman, daughter of respondent No. 2 Mani Ram, endorsing the statement made by petitioner, has stated that petitioner has undertaken to keep and maintain her as his wife. She has further .
stated that they were knowing each other since long and had committed a mistake, resulting to pregnancy and now they have solemnized marriage as decided by them earlier. He has also stated that FIR was lodged by her father for protecting her interest and now it would be in her interest as well as in interest of her parents and also of their future life including the future of their children, to quash FIR and Criminal Proceedings, as it is in the interest of her family including her and her children.
6. In his statement, complainant-respondent No.2 Mani Ram, while endorsing statement of petitioner Rohit and his daughter Suman has stated that he has accepted their relation and solemnized their marriage and they are living under one roof and he had lodged FIR for safeguard rights and interest of his daughter and now in changed circumstances, it would be in the interest of all to quash the FIR and close the criminal proceedings arising thereto, therefore, he has agreed to compromise the matter and for quashing the FIR and criminal proceedings. He has further stated that after filing of present petition, Police from Police Station Sunni has visited our house and before the Police also he had made statement regarding the solemnization of marriage of Suman and Rohit after attaining 18 years of age by Suman and for closing the criminal case initiated on the basis of FIR lodged by him. He has further stated that on the basis of his complaint Police carried out investigation and on finding that his wife Asha Devi, had concealed real age of Suman from the Police in ::: Downloaded on - 05/12/2022 20:31:59 :::CIS 5 Cr.MMO No. 986 of 2022 Kamla Nehru Hospital, she has also been arrayed as an accused under Section 21 of POCSO Act, but she had made said statement in order to save future of Rohit and Suman, but without any ill will and ill .
intention. Therefore, in the interest of his daughter, he has prayed for withdrawal of complaint and FIR as well as criminal proceedings.
7. Asha Devi, mother of respondent No. 3 Suman, in her statement, endorsing statement of petitioner Rohit, Suman and Mani Ram to be true and correct has deposed that during inquiry by the Police in Kamla Nehru Hospital, she had disclosed the age of Suman as 19 years in order to safeguard the interest of Suman as well as Rohit, as they had decided to solemnize marriage with each other. She has further stated that there was no intention on her part to conceal the facts for hampering the interest of minor and, therefore, FIR against her also be quashed.
8. Petitioner, respondents No. 2 and 3 and Asha Devi 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.
9. 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. Status report has been filed on behalf of State. Statement of Rohit is in consonance with the facts stated in the status report. Alongwith status report copy of statement of Mani Ram, Pradhan Gram Panchyat Mandorghat Roshan Lal and Up Pradhan of Gram Panchyat Juni Kavinder Singh have been placed on record ::: Downloaded on - 05/12/2022 20:31:59 :::CIS 6 Cr.MMO No. 986 of 2022 alongwith certificate of marriage and copy of family Register, wherein solemnization of marriage of Rohit and Suman on 26.9.2022, has been endorsed and verified.
.
10. 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 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. ::: Downloaded on - 05/12/2022 20:31:59 :::CIS 7 Cr.MMO No. 986 of 2022
11. 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.
12. 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.
13. No doubt Sections 363, 366 and 376(2) of IPC, and Sections 6 and 17 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.
::: Downloaded on - 05/12/2022 20:31:59 :::CIS 8 Cr.MMO No. 986 of 2022
14. 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.
15. 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 ::: Downloaded on - 05/12/2022 20:31:59 :::CIS 9 Cr.MMO No. 986 of 2022 376 IPC read with provisions of POCSO Act have also been quashed in similar circumstances where victims and accused had married to each other.
.
16. 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 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 ::: Downloaded on - 05/12/2022 20:31:59 :::CIS 10 Cr.MMO No. 986 of 2022 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 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."
17. 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.
::: Downloaded on - 05/12/2022 20:31:59 :::CIS 11 Cr.MMO No. 986 of 2022
18. 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. 8 of 2022, dated 13.1.2022, registered in Police Station Sunni, District Shimla, Himachal Pradesh is quashed. Consequent to quashing of FIR, criminal proceedings pending before learned Additional Sessions Judge (Fast Tract Court, Shimla, H.P. initiated against petitioners No. 1 and Asha Devi in pursuance thereto, are also quashed.
19. Petition stands disposed of in above terms.
20. 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), nd 2 December, 2022 Judge.
(Keshav) ::: Downloaded on - 05/12/2022 20:31:59 :::CIS