Himachal Pradesh High Court
Dehra vs State Of Punjab And Ors. Reported ... on 2 December, 2021
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 2nd DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 532 OF 2021
BETWEEN:-
MANISH KUMAR, SON OF PRITAM
CHAND R/O VILLAGE HASROL,
PANCHYAT KPORA, TEHSIL
DEHRA, DISTRICT KANGRA (HP) ....PETITIONER
(BY SH. VIJENDER KATOCH, ADVOCATE.)
AND
1. STATE OF H.P.
2. PREETI, D/O GULWANT SINGH
ORIGINALLY R/O VILLAGE CHOHAR
SUNHETAR, PO GAGDUHI, TEHSIL
JWALAMUKHI, DISTRICT KANGRA,
H.P. PRESENTLY RESIDING WITH
HER HUSBAND AT VILLAGE
HASROL, PANCHYAT KPORA,
TEHSIL DEHRA, DISTRICT KANGRA
(HP).
....RESPONDENTS
(BY SH. RAJU RAM RAHI,
DEPUTY ADVOCATE GENERAL
FOR RESPONDENT NO. 1.)
(BY ANIL KUMAR SHARMA, ADVOCATE,
FOR RESPODNENT NO. 2.)
Whether approved for Reporting? Yes.
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 petitioner Manish Kumar, on the basis of compromise arrived at between him and respondent No. 2 Preeti, for quashing of FIR No. 106 of 2019, dated 27.6.2019, registered in Police Station Jawalamukhi, under ::: Downloaded on - 31/01/2022 23:22:22 :::CIS 2 Cr.MMO No. 532 of 2021 Sections 363, 366, 376, 506 of the Indian Penal Code (in short 'IPC') and Sections 4 and 6 of the Prevention of Children from Sexual .
Offences Act (in short 'POCSO Act') and consequent proceedings arising thereto.
2. Petitioner Manish Kumar and respondent No. 2 Preeti and are present in the Court today (2.12.2021). They have been duly identified by their respective counsel. Their statements, on oath, have been recorded separately.
3. to In her statement, respondent No.2 Preeti has stated that her date of birth is 26.6.2003 and she had passed her Matriculation in the year 2018 and when she was studying in 10th Class, she came in contact of petitioner and they developed intimacy and started liking each other and ultimately they decided to marry. But her family was not ready for their marriage for the reason that she belongs to Chaudhary Caste (OBC), whereas Manish Kumar belongs to a Scheduled Caste family.
However they were determined to marry with each other whereas her parents were pressurizing her to change her decision and they also used to beat her on this issue. Therefore, she had decided to leave her home and, in June 2019, she telephonically called petitioner Manish Kumar and informed him about her decision and thereafter she left her house on her own volition, as the torture of her parents was not bearable and, therefore, she stayed in the house of Manish Kumar, but her mother had lodged FIR in Police Station, Jawalamukhi and she was handed over to her parents and at that time, she was not of 18 years of age, thereafter, her volition was not accepted for want of attaining the age of discretion and on completion of 18 years, she has solemnized her ::: Downloaded on - 31/01/2022 23:22:22 :::CIS 3 Cr.MMO No. 532 of 2021 marriage with Manish Kumar on 13.7.2021 in Krishan Mandir, Dehra and thereafter on 3.8.2021 marriage has been registered in the office of .
Registrar/Sub-Registrar, Kopra, District Kangra and photocopies of certificate issued by Patwari and Registration Certificate are Annexures P-1 and P-2 and as per legal advice she has also signed the compromise deed, dated 13.9.2021 for withdrawal of complaint. She has further stated that as she had left her house on her own volition, but for not attaining age of majority on that date, case was registered and Manish Kumar has been made an accused, but now after attaining the age of majority, she has married him and it was her wish which was not accepted by her parents. She has stated that petitioner is her husband and she is living with him under one roof in his parental house, which is her matrimonial house and her husband is maintaining her and that her parents are not ready to keep her as she has married against their wish.
She has further stated that for her welfare and better future, she wants to withdraw the complaint against Manish Kumar and also not intending to continue with the Criminal Proceedings against her husband as he is not at fault for that. She had prayed for quashing of FIR and setting aside proceedings arising thereto. She has further stated that she has entered into compromise and deposed in this Court, out of her free will, consent and without any external pressure, coercion or threat of any kind.
4. In his statement, petitioner Manish Kumar, while endorsing statement made by respondent No. 2 has stated that 26.6.2019, was birthday of respondent No. 2 and on that date she had taken him with her to temple and when she went back to her house, she was ::: Downloaded on - 31/01/2022 23:22:22 :::CIS 4 Cr.MMO No. 532 of 2021 mercilessly beaten by her parents and, therefore, she decided to left her house and he had only taken her to his house for her safety and .
protection as they were in love with each other and after marriage she is residing with him in his parental house alongwith his mother and two younger brothers. He has undertaken to keep and maintain respondent No. 2, without harassing her in any manner, as he is her husband and marriage has been solemnized by her with him by taking decision by defying instructions and decision of her parents. He has further stated that he has deposed in this Court, out of his free will, consent and without any external pressure, coercion or threat of any kind.
5. 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 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 ::: Downloaded on - 31/01/2022 23:22:22 :::CIS 5 Cr.MMO No. 532 of 2021 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.
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 between the parties and exercise its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or ::: Downloaded on - 31/01/2022 23:22:22 :::CIS 6 Cr.MMO No. 532 of 2021 refusing to accept the settlement with direction to continue with criminal proceedings.
.
9. No doubt Sections 363, 366 and 376 of IPC and Sections 4 and 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.
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 accused/petitioner 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 ::: Downloaded on - 31/01/2022 23:22:22 :::CIS 7 Cr.MMO No. 532 of 2021 (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; and Cr.MMO No. 144 of 2021, Ashok Kumar Vs. State, decided on 27.4.2021, 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 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.
::: Downloaded on - 31/01/2022 23:22:22 :::CIS 8 Cr.MMO No. 532 of 202114. 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 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 ::: Downloaded on - 31/01/2022 23:22:22 :::CIS 9 Cr.MMO No. 532 of 2021 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 petitioner taken for safety of respondent No. 2 has become an offence for age of the respondent No. 2 at relevant point of time.
14. Offences in question, for material on record, do not fall in the category of offence termed to be prohibited, in terms of the pronouncements of Apex Court, to be compounded, exercising power under Section 482 of the Cr.P.C.
15. 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. 106 of 2019, dated 27.6.2019, registered in Police Station Jwalamukhi, Himachal Pradesh is quashed. Consequent to quashing of FIR, criminal proceedings pending before learned Sessions Judge Cum Special Judge POCSO, District Kangra at Dharamshala initiated against petitioner-accused in pursuance thereto, are also quashed.
::: Downloaded on - 31/01/2022 23:22:22 :::CIS 10 Cr.MMO No. 532 of 202116. Petition stands disposed of in above terms.
17. 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), nd 2 December, 2021 Judge.
(Keshav) ::: Downloaded on - 31/01/2022 23:22:22 :::CIS