Himachal Pradesh High Court
Shishpal vs State Of Himachal Pradesh & Another on 27 August, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 377 of 2019
Date of decision: 27.8.2019
.
Shishpal. ...Petitioner.
Versus
State of Himachal Pradesh & Another. ...Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr.Virender Singh Rathour, Advocate.
Petitioner Shishpal present in person.
For the Respondents: Mr.S.C. Sharma and Mr.Desh Raj Thakur,
r Additional Advocate Generals, with Mr.R.P.
Singh, Deputy Advocate General, for
respondent No. 1-State.
Respondent No. 2 Smt.Deepika, present in
person.
Vivek Singh Thakur, Judge (oral)
The instant petition, under Section 482 of the Code of Criminal Procedure (herein after referred to as 'Cr.PC') has been filed by petitioner- accused, for quashing FIR No. 95 of 2018, dated 15.10.2018, under Section 376 of the Indian Penal Code (herein after referred to as 'IPC') registered at Police Station Chirgaon, District Shimla, and criminal proceedings initiated in pursuance thereto.
2. Today petitioner Shishpal and respondent No. 2 Smt. Deepika, present in person, have been identified by Mr.Virender Singh Rathour, Advocate and their statements have been recorded on oath.
3. Petitioner in his statement deposed that respondent No. 2, Deepika is his wife and he has solemnized marriage with her as per his choice and they both are residing as husband and wife together in his ancestral house along with his parents and are also blessed with a daughter, who has born in Sanjivini Hospital, Rohru on 2.10.2018 and in the Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 29/09/2019 02:40:16 :::HCHP 2 Cr. MMO No. 377 of 2019 hospital record their names have been recorded as her parents. He has stated that at that time their marriage was not registered in the Panchayat record and he had to visit his aunt (sister of father) at Samrala in Punjab and .
during that period he could not contact his wife Deepika and at that time his parents were also not ready for accepting Deepika as his wife and therefore, his wife had gathered an impression that he (petitioner) had been avoiding her and had deserted her, which lead to filing of complaint by her before Deputy Superintendent of Police, Rohru, which resulted in registration of FIR under Section 376 IPC against him. Later on he came back and convinced his parents and took Deepika along with daughter to his ancestral house and his parents as well as other relatives have accepted their marriage and they have no objection in continuation of this marriage and he has also assured his wife to maintain her in future. The petitioner has further stated that he has also sworn affidavits dated 12.11.2018 and 24.11.2018 and contents of these affidavits are also true and correct, wherein he has assured his wife that he will not indulge in any unlawful and illegal activities causing prejudice and insult to his wife and her relatives in any manner. He has also stated that now name of Deepika has been entered in the records of Gram Panchyat Kawar as his wife and name of their daughter has also been registered in Deaths and Births Register of Gram Panchyat, Kawar and that he will keep and maintain his wife and daughter properly by providing all necessities of life and comfort well in time and there is no restriction to her to visit her parents' house as per custom of the area. The petitioner has also stated that he has sworn the affidavits and deposed in this Court out of his free will, consent and without any external pressure, coercion or threat of any kind.
4. Respondent No. 2 Deepkia in her statement, endorsing the statement of petitioner to be true and correct, has deposed that in view of subsequent events and also the fact that she has been accepted as wife by ::: Downloaded on - 29/09/2019 02:40:16 :::HCHP 3 Cr. MMO No. 377 of 2019 the petitioner, his parents and relatives and now she is residing in her matrimonial house along with their daughter, she does not want to continue with the criminal proceedings against her husband, as it would be having .
adverse impact on her family life, her future as well as future of their daughter. Deposing further that considering all facts and circumstances in entirety and explanation rendered by petitioner, she is of the view that petitioner was never intending to leave or avoid her, but unfortunate circumstances lead to lodging of complaint against petitioner and now she does not want to continue Criminal Case for the sake of her family life and child, she has prayed for quashing of FIR as well as Criminal Proceedings. She has also stated that she has deposed in this Court out of her free will, consent and without any external pressure, coercion or threat of any kind.
5. Considering peculiar facts and circumstances of present case, petition has not been opposed on behalf of respondent No. 1-State.
6. It is apt to record herein that a three Judges Bench of the Apex Court 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.P.C., 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.P.C. is held to be exercisable for quashing criminal proceedings in cases having ::: Downloaded on - 29/09/2019 02:40:16 :::HCHP 4 Cr. MMO No. 377 of 2019 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 case Narinder Singh and Ors. 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.
8. No doubt Section 376 IPC is not compoundable under Section 320 Cr. P.C. However, as explained by Hon'ble Supreme Court in Gian Singh's and Narinder Singh's cases supra, power of High Court under Section 482 Cr.PC 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.PC, if it is 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.
9. In present case, complainant-respondent No. 2 also appeared in person in this Court and her statement, as discussed in para 4 supra, has also been recorded in this Court, wherein she has expressed her desire to close the proceedings against the petitioner.
::: Downloaded on - 29/09/2019 02:40:16 :::HCHP 5 Cr. MMO No. 377 of 2019
10. It is a peculiar nature of case, where complainant and accused are residing under one and the same roof as husband and wife. In fact, complainant-respondent No. 2 has solemnized marriage with accused-
.
petitioner against wishes of parents of petitioner-accused, but fact remains that she lived and is living with him in his parental house and has given birth to a child and for reasons explained by her in her statement, she also filed a complaint, which resulted into registration of FIR against petitioner-accused and after removal of misunderstanding and acceptance of marriage by parents and relatives of her husband petitioner-accused, she is residing with in-laws and is interested in quashing of FIR and criminal proceedings pending against her husband for betterment of her life as well as welfare of her child. It is true that as a matter of principle, quashing of FIR on the basis of compromise should not be permitted in case of heinous crime like Section 376 IPC for the reason that said crime is against the society having adverse impact on it and also that possibility of compromise under any kind of pressure, threat or coercion cannot be ruled out in such cases as victims normally belong to the weaker class. But in given facts and circumstances of the present case, where offence of rape is made out because of the fact that a young girl, apprehending cheating has lodged FIR and now again residing in her matrimonial house with petitioner-accused, it cannot be compared with other cases.
11. Observation of the 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 ::: Downloaded on - 29/09/2019 02:40:16 :::HCHP 6 Cr. MMO No. 377 of 2019 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.
.
12. In present case also, deposition of victim in the Court in consonance with prosecution case would lead to landing her husband in jail and pushing her and her child in pitch dark whereas retracting from her earlier version may put her in unnecessary trouble.
13. 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 as Kajal & another vs. State of Himachal Pradesh & another; and Cr.MMO No. 244 of 2019, decided on 07.05.2019 titled as X vs. State of H.P. & others, wherein FIRs registered under Section 376 IPC read with provisions of POCSO Act have been quashed in similar circumstances where victims and accused had married to each other.
14. The ratio of law laid down by the Apex Court on the issue of permitting the compromise and quashing of FIR in all 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 also given birth to a child out of the wedlock and their names have also been entered as such in Pancahyat record and the case is registered against petitioner-accused, only for the reason that at that time victim apprehended cheating and further, it is not a ::: Downloaded on - 29/09/2019 02:40:16 :::HCHP 7 Cr. MMO No. 377 of 2019 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 she is living in her matrimonial house .
along with child 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 and her child 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.
15. Therefore, in peculiar facts and circumstances of the present case, I am of the considered opinion that interest of justice shall be served in quashing the FIR as well as criminal proceedings pending against petitioner- accused.
16. Keeping in view the ratio of law laid down by the Hon'ble Apex Court and considering peculiar facts and circumstances of the case in its entirety, present petition is allowed and matter is permitted to be compounded. Consequently, FIR No. 95 of 2018, dated 15.10.2018, registered at Police Station, Chirgaon, District Shimla, H.P. is quashed. Consequent to quashing of FIR, criminal proceedings, i.e. Sessions Trial No. 1 of 2019, pending in the Court of learned Sessions Judge, Shimla, also stand quashed.
17. Petition stands disposed of in the aforesaid terms, so also pending applications, if any.
Copy Dasti.
(Vivek Singh Thakur), th 27 August, 2019 Judge.
(Keshav) ::: Downloaded on - 29/09/2019 02:40:16 :::HCHP