Himachal Pradesh High Court
Gulam Hassan Hakim & Ors vs State Of Himachal Pradesh on 26 March, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 101 of 2018
.
Date of decision: 26.03.2018
Gulam Hassan Hakim & Ors. ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No.
For the Petitioners : Mr. Jasmeet Singh and Mr. Dhanajay
r Sharma, Advocates.
For the Respondents : Mr. Vinod Thakur and Mr. Sudhir Bhatnagar,
Addl. A.Gs. with Mr. Bhupinder Thakur, Dy.
A.G., for respondent No. 1.
: Mr. Rajesh Kumar Parmar, Advocate
with Josephine Mary Della Casa Hakim
(Respondent No. 2).
Convict Gulam Hussan produced in
the custody of Ct. Shammi Gill No.
1248 and Ct. Multan No. 1008,
convict Gulzar Ahmed Hakim
produced in the custody of Ct. Reegan
No. 1206 and Ct. Dinesh No. 576 and
convict Pir Mohd Azad produced in the
custody of Ct. Pushpinder No. 488 and
HHC Santosh, No. 689,
Justice Tarlok Singh Chauhan, Judge (Oral)
By medium of this petition filed under Section 482 Cr.P.C., the petitioners have prayed for quashing of FIR No. 272 of 2005 and all consequential proceedings arising therefrom.
1Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 27/03/2018 23:39:28 :::HCHP 22. It is not in dispute that all petitioners herein as on date stand convicted by the learned Additional Sessions Judge .
(III), Kangra at Dharamshala vide judgment dated 03.11.2017
3. Petitioner No. 1- Gulam Hassan Hakim is convicted for offences punishable under Sections 376, 406, 420, 494, 495, 496, 467, 468, 471 and 120B IPC, petitioner No. 2 - Gulzar Ahmad Hakim is convicted for offences punishable under Sections 406, 420, 495, 496, 467, 468, 471 and 120B and Petitioner No. 3 - Peer Mohammad Azad is also convicted for offences punishable under Sections 495, 496, 467, 468, 471 and 120B IPC.
4. Therefore, it is a moot question whether the instant petition, after conviction of the petitioners, is maintainable.
5. It is vehemently argued by learned counsel for the petitioners and learned counsel for respondent No. 2 that it was on account of some matrimonial misunderstanding and quarrel that respondent No. 2 levelled allegations against petitioner No. 1, who is her husband, and such fact stand duly reflected in her passport. Therefore, this Court in exercise of its inherent jurisdiction be gracious enough to quash the FIR and all consequential proceedings arising therefrom.
6. It is well settled in the case of Gian Singh vs. State of Punjab & anr. (2012) 10 SCC 303, that the inherent ::: Downloaded on - 27/03/2018 23:39:28 :::HCHP 3 powers vested with this Court under Section 482 of the Cr.P.C. is of wide plentitude with no statutory limitation but it has to be .
exercised in accord with the guideline engrafted in such powers viz:- (I) to secure the ends of justice, or (ii) to prevent abuse of the process of any court etc. Where the High Court quashes a criminal proceedings having regard to the fact that the dispute between the offender and the victim has been settled although the offences are no compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end so that peace is restored and securing the ends of justice being the ultimate guiding factor. However, such powers cannot be exercised in respect of henious offences like murder, rape, dacoity etc.; or other offences of mental depravity under IPC or offences of moral turpitude under special statute like Prevention of Corruption Act or offences committed by public servant while working in that capacity, the settlement between the offender and victim can have no legal sanction at all.
7. The ratio laid down in Gian Singh's case (supra) was thereafter reiterated by the Hon'ble Supreme Court in Narinder Singh and ors. vs. State of Punjab & anr. (2014) 6 SCC 466.
::: Downloaded on - 27/03/2018 23:39:28 :::HCHP 48. At this stage, it shall be apt to refer to the decision rendered by three Hon'ble Judges of Hon'ble Supreme Court in .
Shimbhu and anr. vs. State of Haryana (2014) 13 SCC 318, wherein it was observed as under:-
19. Thus, the law on the issue can be summarised to the effect that punishment should always be proportionate/ commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or the victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute. The power under the proviso should not be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation.
20. Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle.
Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC.
::: Downloaded on - 27/03/2018 23:39:28 :::HCHP 59. The guiding principles which the High Court should consider in determining whether to carry out quashment of .
FIR/complaint in criminal proceedings have been lucidly dealt with and succinctly summarised by the Hon'ble Supreme Court in its recent decision in Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai vs. State of Gujarat and anr. (2017) 9 SCC 641, wherein the Hon'ble Supreme Court laid down the following guidelines:-
(1) Section 482 Cr.P.C. 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 recognises and preserves powers which inhere in the High Court.
(2) 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 Cr.P.C. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
(3) In forming an opinion whether a criminal proceeding or complaint should be quashed in 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.
(4) While the inherent power of the High Court has a wide ambit and plentitude it has to be exercised (I) to secure ::: Downloaded on - 27/03/2018 23:39:28 :::HCHP 6 the ends of justice, or (ii) to prevent an abuse of the process of any court.
.
(5) 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.
(6) In the exercise of the power under Section 482 and 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. Henious 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.
(7) 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 insofar as the exercise of the inherent power to quash is concerned.
(8) 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.
(9) 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 remote and ::: Downloaded on - 27/03/2018 23:39:28 :::HCHP 7 the continuation of a criminal proceeding would cause oppression and prejudice; and .
(10) There is yet an exception to the principle set out in Propositions (8) and (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 a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weight in the balance.
10. In light of the fact that the petitioners already stand convicted for the aforesaid offences and the application for suspension of sentence has already been rejected and further taking into consideration the principles as enumerated above, this application is clearly misconceived and sans merit, therefore, the same is accordingly accordingly dismissed.
11. The convicts produced in the custody are directed to be taken back and handed over to the Superintendent, Sub Jail, Daharamshala.
12. Authenticated copy of this order be supplied by the Court Master during the course of the day.
March 26, 2018 (Tarlok Singh Chauhan)
(Sanjeev) Judge
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