Himachal Pradesh High Court
________________________________________________________ vs State Of Himachal Pradesh And Another on 29 March, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CrMMO No. 249 of 2023
Decided on: March 29, 2023
________________________________________________________
Yogesh Kumar .........Petitioner
Versus
.
State of Himachal Pradesh and another ...Respondents
________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting
________________________________________________________
For the petitioner: Mr. Rahul Gathania, Advocate vice Mr. H.S.
Rangra, Advocate.
For the respondents: Mr. Anoop Rattan, Advocate General with Mr.
Rajan Kahol and Mr. B.C. Verma, Additional
Advocates General with Mr. Rahul Thakur and
Mr. Ravi Chauhan, Deputy Advocates
General, for respondent No.1
Mr. Vijay Thakur, Advocate vice Mr. Jai Dev
Thakur, Advocate, for respondent No.2.
________________________________________________________
Sandeep Sharma, J. (oral)
By way of instant petition filed under S.482 CrPC, prayer has been made on behalf of the petitioner for quashing of FIR No. 24, dated 16.3.2022 under Ss. 376(2) and 506 IPC and S.6 of Protection of Children from Sexual Offences Act registered against him at Police Station Karsog, District Mandi, Himachal Pradesh at the behest of respondent No.2/complainant, alongwith consequential proceedings i.e. Case titled as State v. Yogesh Kumar pending before learned Special Judge, Fast Track Court, (POCSO), Mandi, Himachal Pradesh, on the basis of compromise.
2. Precisely, the facts of the case, as emerge from the record, are that the FIR sought to be quashed in the instant proceedings came to be lodged at the behest of respondent No.2, who alleged that the petitioner was known to her for around one year and they had been ::: Downloaded on - 29/03/2023 20:35:33 :::CIS -2- talking to each other over phone. She alleged that on 28.12.2021, at 9 pm, when she was alone in her maternal grandparents' house at Village Gadhoh, accused came in the room and after talking for some time, asked her to enter into physical relations with him and when she .
resisted, he threatened her to do away with her life. She further alleged that petitioner committed forcible sexual intercourse with her in the last week of January 2022 and last week of February, 2022. She alleged that on 13.3.2022, she became ill and when she disclosed this factum to her maternal grandparents and then to her parents, they took her to IGMC Shimla, from where she was referred to KNH Shimla, where factum of pregnancy being carried by her was disclosed. Complainant in her complaint made to the police on 14.3.2022, prayed for taking appropriate legal action against the petitioner, which culminated into aforesaid FIR. Police after completion of investigation, filed Challan in the competent court of law, where case titled State v. Yogesh Kumar is pending, however, during the pendency of the trial before learned trial Court, petitioner and the complainant have contracted marriage and name of the complainant has been registered in the Parivar register, as is evident from Annexure P-3, annexed with the petition. In the aforesaid background, petitioner has approached this Court in the instant proceedings, for quashing of the FIR alongwith consequential proceedings pending in the competent court of law.
3. Pursuant to order dated 22.3.2023, though, respondent- State has not filed any status report but complainant Kaushalya Kumari has come present in the court, who is duly represented by Mr. Jai Dev Thakur, Advocate. She states on oath that she has contracted ::: Downloaded on - 29/03/2023 20:35:33 :::CIS -3- marriage with the petitioner and living happy married life with him. She states that the petitioner is taking good care of her and undertaken to do so, in future also. She states that her name has been entered in the Parivar register as wife of the petitioner, as such, she does not want to .
pursue the criminal proceedings against the petitioner and shall have no objection in case prayer made by the petitioner/ accused for quashing of aforesaid FIR alongwith consequential proceedings i.e. Case titled as State v. Yogesh Kumar pending before learned Special Judge, Fast Track Court, (POCSO), Mandi, Himachal Pradesh is accepted and accused is acquitted of the charges framed against him. Her statement is taken on record.
4. Learned Additional Advocate General, while opposing the prayer made on behalf of the petitioner for quashing of FIR, states that the petitioner-accused has committed a heinous offence attracting provisions of S.376(2) IPC and provisions of Protection of Children from Sexual Offences Act, as such, it would not be in the interest of justice and society if the prayer of the petitioner for quashing of FIR is accepted. However, having heard the statement of complainant, wherein factum of marriage inter se petitioner and her and further factum with regard to birth of a child to them, learned Additional Advocate General states that appropriate orders may be passed. He further states that otherwise chances of conviction of the accused are remote and bleak in view of the statement made by respondent No.2, more so when parties have contracted marriage and a child has been born to them, as such, respondent-State shall have no objection in ::: Downloaded on - 29/03/2023 20:35:33 :::CIS -4- case prayer made on behalf of the petitioner for quashment of FIR alongwith consequential proceedings is allowed.
5. The question which now needs consideration is whether .
FIR's in question can be ordered to be quashed when Hon'ble Apex Court in Narinder Singh and others versus State of Punjab and another (2014)6 SCC 466 has specifically held that power under S. 482 CrPC is not to be exercised in the cases which involve 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.
6. At this stage, it would be relevant to take note of the judgment passed by Hon'ble Apex Court in Narinder Singh (supra), whereby the Hon'ble Apex Court has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings. Perusal of judgment referred to above clearly depicts that in para 29.1, Hon'ble Apex Court has returned the findings that power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash criminal proceedings even in those cases which are not compoundable and where the parties have settled the matter between themselves, however, this power is to be exercised sparingly and with great caution. In para Nos. 29 to 29.7 of ::: Downloaded on - 29/03/2023 20:35:33 :::CIS -5- the judgment Hon'ble Apex Court has laid down certain parameters to be followed, while compounding offences.
7. Careful perusal of para 29.3 of the judgment suggests that .
such a power is not to be exercised in the cases which involve 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. Apart from this, offences committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed r to merely on the basis of compromise between the victim and the offender. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly arising out of commercial transactions or arising out of matrimonial relationship or family disputes may be quashed when the parties have resolved their entire disputes among themselves. Aforesaid view taken by Hon'ble Apex Court has been further reiterated in Gian Singh v. State of Punjab and anr. (2012) 10 SCC 303.
8. The Hon'ble Apex Court in case Gian Singh supra has held that power of the High Court in quashing of the criminal proceedings or FIR or complaint in exercise of its inherent power is distinct and different from the power of a Criminal Court for compounding offences under Section 320 Cr.PC. Even in the judgment passed in Narinder Singh's case, the Hon'ble Apex Court has held that while exercising inherent power of quashment under Section 482 Cr.PC the Court must ::: Downloaded on - 29/03/2023 20:35:33 :::CIS -6- have due regard to the nature and gravity of the crime and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and serious offences of mental .
depravity, murder, rape, dacoity etc. However subsequently, the Hon'ble Apex Court in Dimpey Gujral and Ors. vs. Union Territory through Administrator, UT, Chandigarh and Ors. (2013( 11 SCC 497 has further reiterated that continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society.
Hon'ble Apex Court further observed that when offences of a personal nature, burying them would bring about peace and amity between the two sides.
9. Hon'ble Apex Court in its judgment dated 4th October, 2017, titled as Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and others versus State of Gujarat and Another, passed in Criminal Appeal No.1723 of 2017 arising out of SLP(Crl) No.9549 of 2016, reiterated the principles/ parameters laid down in Narinder Singh's case supra for accepting the settlement and quashing the proceedings.
10. In the case at hand, offences alleged to have been committed by the petitioner are heinous in nature, but keeping in view the fact that petitioner and complainant have solemnized marriage and even name of complainant has been entered as wife of the petitioner in the Parivar Register, this Court is of the view that it would be expedient in the interests of justice, that the criminal proceedings against the ::: Downloaded on - 29/03/2023 20:35:33 :::CIS -7- petitioner are quashed, especially when the complainant has verified the factum of marriage inter se her and the petitioner and, in any case, if the criminal proceedings are allowed to continue against the .
petitioner, it is the complainant who would be the ultimate sufferer, in the changed scenario, where now she is wife of the accused and her interest is intermingling with that of the accused, being her husband. Moreover, this Court has onerous duty to ensure substantial justice to the parties, in exercise of power under S.482 CrPC, in the peculiar facts of the case, where, accused is now husband of the victim- prosecutrix. This court is also alive to the fact that a child has been borne out of wedlock of the parties in August, 2022, whose responsibility is also upon the petitioner, as such, welfare of not only the complainant, but the child of the parties is also involved, which is also required to taken into consideration by this Court. Otherwise also, there are bleak and remote chances of conviction of accused and as such, this court sees no impediment in accepting the prayer made by petitioner for quashing of FIR.
11. Consequently, in view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court (supra), FIR No. 24, dated 16.3.2022 under Ss. 376(2) and 506 IPC and S.6 of Protection of Children from Sexual Offences Act registered at Police Station Karsog, District Mandi, Himachal Pradesh at the behest of respondent No.2/complainant, alongwith consequential proceedings i.e. Case titled as State v. Yogesh Kumar pending before learned Special Judge, Fast ::: Downloaded on - 29/03/2023 20:35:33 :::CIS -8- Track Court, (POCSO), Mandi, Himachal Pradesh are quashed and set aside and the petitioner is acquitted of the charges framed against him.
12. The petition stands disposed of in the aforesaid terms, .
alongwith all pending applications.
Copy Dasti.
(Sandeep Sharma)
Judge
March 29, 2023
(Vikrant)
r to
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