Himachal Pradesh High Court
Amar @ Rounie & Another vs State Of Himachal Pradesh & Another on 25 August, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.329 of 2023
Date of Decision: 25.08.2023
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_________________________________________________
Amar @ Rounie & another
....Petitioners
Versus
State of Himachal Pradesh & another
...Respondents
of
_________________________________________________
Coram
Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
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For the petitioners:
rt Mr. Munish Kumar and
Mr. Mohinder Singh Thakur,
Advocates.
For respondent No. 1/State: Mr. Jitender Kumar Sharma,
Additional Advocate General.
_________________________________________________
Sushil Kukreja, Judge (Oral)
The accused (petitioner No. 1 herein) and prosecutrix/victim (petitioner No. 2 herein), after compromising the matter, have come up before this Court under Section 482 Cr.P.C., by invoking inherent powers of this Court, seeking quashing of FIR No. 91 of 2021, dated 04.08.2021, under Sections 363, 366A and 376 of the Indian Penal Code (for short "IPC") registered at Police station Reckong-Peo, District Kinnaur, H.P..
1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 25/08/2023 20:34:47 :::CIS 22. The present FIR was lodged on the complaint made by Smt. Rekha Sharma (complainant), .
Incharge/Warden Balika Ashram.
3. Today, petitioner No. 2, prosecutrix/victim (name withheld) as well as petitioner No. 1-accused are present in person before this Court and both the petitioners have been of duly represented and identified by Mr. Munish Kumar, Advocate. rt
4. The prosecutrix/victim in her statement stated that at the instance of respondent No. 2, FIR No. 91 of 2021, dated 04.08.2021, under Sections 363, 366A and 376 IPC, was registered against petitioner No. 1-accused, at Police Station Reckong-Peo, District Kinnaur, H.P.. She has further stated that she and petitioner No. 1 fell in love with each other and on 26.10.2021 she gave birth to a baby girl. After attaining the age of majority, she had solemnized marriage with petitioner No. 1 on 01.03.2023, as per copy of marriage certificate, Annexure P-2 and now they are living happily as husband and wife under one roof. She has also stated that in order to secure the ends of justice, she has no objection in case the aforesaid FIR as well as the consequent ::: Downloaded on - 25/08/2023 20:34:47 :::CIS 3 proceedings, arising out of the said FIR, pending before the Court of learned Special Judge (FTC) Rape/POCSO, .
Kinnaur at Rampur Bushahr, Shimla, H.P., in Sessions Trial No.30 of 2021, titled as State of H.P. vs. Amar alias Rounie, are quashed and set-aside.
5. Similarly, petitioner No. 1-accused stated that at of the instance of respondent No. 2, FIR No. 91 of 2021, dated 04.08.2021, under Sections 363, 366A and 376 IPC, was rt registered against him at Police Station Reckong-Peo, District Kinnaur, H.P.. He has further stated that he and petitioner No. 2 (prosecutrix/victim) fell in love with each other and on 26.10.2021 petitioner No. 2 gave birth to a baby girl. On 01.03.2023 he had solemnized marriage with petitioner No. 2, as per copy of marriage certificate, Annexure P-2 and now they are living happily as husband and wife under one roof. He has also stated that in order to secure the ends of justice, the aforesaid FIR as well as the consequent proceedings, arising out of the said FIR, pending before the Court of learned Special Judge (FTC) Rape/POCSO, Kinnaur at Rampur Bushahr, Shimla, H.P., in ::: Downloaded on - 25/08/2023 20:34:47 :::CIS 4 Sessions Trial No.30 of 2021, titled as State of H.P. versus Amar alias Rounie, may be quashed and set-aside.
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6. I have heard learned counsel for the petitioners, learned Additional Advocate General for the respondent/State and also gone through the material available on record.
of
7. It is by now well settled that the High Court has inherent power to quash the criminal proceedings even in rt those cases which are not compoundable, however, such power is to be exercised sparingly and with great caution. In a catena of judgments, the Hon'ble Supreme Court has laid down that while exercising its power, the High Court has to examine as to whether the possibility of a conviction is remote and whether settlement between the parties is going to result in harmony between them which may improve their future relationship.
8. In Gian Singh Vs. State of Punjab and others, 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, the Hon'ble Apex Court has held that ::: Downloaded on - 25/08/2023 20:34:47 :::CIS 5 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 of also observed that Courts must have due regard to nature and gravity of the crime and criminal proceedings in heinous rt and serious offences or offences like murder, rape and dacoity etc. should not be quashed despite victim or victim's 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 predominately 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 ::: Downloaded on - 25/08/2023 20:34:47 :::CIS 6 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.
9. 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 of proceedings, keeping in view the nature of the case, to save the time of the Court for utilizing to decide more effective and rt meaningful litigation, a common sense approach, based on ground of realities and bereft of the technicalities of law, should be applied.
10. 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, the Hon'ble Supreme Court 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 ::: Downloaded on - 25/08/2023 20:34:47 :::CIS 7 settlement with direction to continue with criminal proceedings.
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11. The Hon'ble 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 of the High Court under Section 482 Cr.P.C. has recognized that these powers are not inhibited by provisions of Section rt 320, Cr.P.C. The broad principles which emerge from the precedents on the subject may be summarized 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 recognizes 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 ::: Downloaded on - 25/08/2023 20:34:47 :::CIS 8 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; (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 of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and rt 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 ::: Downloaded on - 25/08/2023 20:34:47 :::CIS 9 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 of the act complained of upon the financial or economic system will weigh in the balance."
12. Although, as per the directions of the Supreme rt Court in Parbatbhai Aahir's case supra, the FIR should not be quashed in case of rape as it is a heinous offence, but when complainant prosecutrix herself takes the initiative and states that now she is married with the accused and both of them are living happily as husband and wife under one roof, in my considered opinion, in such cases, there will be no purpose in continuing with the trial as ultimately, in case of continuation of trial, the result will be of acquittal in favour of the accused.
13. In Kapil Gupta vs State of NCT of Delhi and another, (Criminal Appeal No. 1217 of 2022 decided on 10.08.2022), the Supreme Court while considering an appeal against an order of High Court of Delhi rejecting a quashing petition for proceedings under Section 376 IPC, has held that ::: Downloaded on - 25/08/2023 20:34:47 :::CIS 10 though court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High .
Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The of court has also to take into consideration as to whether the settlement between the parties is going to result into rt harmony between them, which may improve their mutual relationship. The relevant portion of the judgment (supra) reads as under:
"12. No doubt that the learned ASG is right in relying on various judgments of this Court which reiterate the legal position that in heinous and serious offences like murder or rape, the Court should not quash the proceedings. It will be relevant to refer to paragraph 29.5 to 29.6 of the judgment of this Court in the case of Narender Singh versus State of Punjab, which read thus:
"29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.::: Downloaded on - 25/08/2023 20:34:47 :::CIS 11
29.6 Offences under Section 307 IPC would fall in the category of heinous and serious offences .
and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in of the FIR or the charge is framed under this provision. It would be open to the High Court to examine rt 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 proving 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. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea ::: Downloaded on - 25/08/2023 20:34:47 :::CIS 12 compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the .
fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship."
14. This Court is aware that offences like rape cannot of be quashed by exercising jurisdiction under Section 482 Cr.P.C. if a compromise has been reached, but, at the same rt time, this Court cannot ignore and overlook the future of the prosecutrix. In the facts of the case, since the prosecutrix is now married with the accused and both of them are living peacefully as husband and wife under one roof, continuation of the proceedings against the petitioner No. 1/accused would be an exercise in futility. Therefore, I am of the considered view that no fruitful purpose will be served to continue the proceedings against the petitioner No. 1- accused. The justice in the case demands that the dispute between the parties is put to an end and peace is restored in order to maintain harmonious relations/atmosphere between them.::: Downloaded on - 25/08/2023 20:34:47 :::CIS 13
15. Hence, considering the facts and the circumstances of the case in entirety, I am of the opinion that .
the present petition deserves to be allowed for securing the ends of justice and, therefore, the same is allowed.
Accordingly, FIR No. 91 of 2021, dated 04.08.2021, under Sections 363, 366A and 376 IPC, registered against of accused/petitioner No. 1, at Police Station Reckong-Peo, District Kinnaur, H.P., and the consequent proceedings rt arising out of the said FIR, pending before the Court of learned Special Judge (FTC) Rape/PCSO, Kinnaur at Rampur Bushahr, Shimla, in Sessions Trial No. 30/2021, titled as State of H.P. versus Amar @ Rounie, H.P., are quashed and set-aside.
16. Petition stands disposed of in above terms, so also the pending application(s), if any.
( Sushil Kukreja ) th 25 August, 2023 Judge (virender) ::: Downloaded on - 25/08/2023 20:34:47 :::CIS