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2014 DIGILAW 160 (HP)

Sushil Thakur v. State of Himachal Pradesh

2014-03-06

RAJIV SHARMA

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JUDGMENT : - Rajiv Sharma, Judge (oral): This petition has been filed for setting aside the judgment dated 26.11.2011 rendered by the learned Judicial Magistrate, 1st Class, Court No. I, Shimla, in Police Challan No.87/2 of 2009, whereby, the petitioners/accused persons were convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1000/- each and in default of payment of fine, to further undergo simple imprisonment for fifteen days under Section 323 read with Section 34 of the Indian Penal Code and to undergo simple imprisonment for six months and to pay a fine of Rs.2000/-each and in default of payment of fine to undergo further simple imprisonment for fifteen days under Section 498-A read with Section concurrently. 2 “Key facts” necessary for the adjudication of this petition are that on 27.6.2004 marriage between petitioner No.1 and proforma respondent was solemnized according to Hindu rites and custom. Two children were born out of the wedlock. Proforma respondent left her matrimonial house due to some discord. Thereafter, proforma respondent filed complaint Ext.PW1/H in Police Station East Shimla, on the basis of which FIR Ext.PW6/A was registered under Sections 498-A, 323 and 506 of the Indian Penal Code. The challan was filed before the learned trial court after completing all the codal formalities. Charges were framed against the accused persons under Sections 498-A and 323 read with Section 34 of the Indian Penal Code. 3 Prosecution examined as many as six witnesses to prove its case. The accused persons were examined under Section 313 Cr.P.C. They denied case of the prosecution and claimed innocence. The learned trial court convicted and sentenced the accused persons vide judgment dated 26.11.2011, as stated hereinabove. 4 Feeling aggrieved, the accused persons preferred an appeal against the judgment dated 26.11.2011 before the learned Sessions Judge, Shimla, which is pending adjudication. 5 Mr. Sunil Mohan Goel, learned Advocate, submits that the matrimonial dispute has been resolved between the parties. Proforma respondent has come back to her matrimonial house in the month of April 2013. Petitioner No.1 and proforma respondent were present in the Court and submitted that they are happily living together. It is in these circumstances, the present petition has been filed for quashing the judgment dated 26.11.2011 averments contained in the reply, offence under Section 498-A of the Indian Penal Code is not compoundable. Petitioner No.1 and proforma respondent were present in the Court and submitted that they are happily living together. It is in these circumstances, the present petition has been filed for quashing the judgment dated 26.11.2011 averments contained in the reply, offence under Section 498-A of the Indian Penal Code is not compoundable. 7 The Court is of the considered view that in view of the compromise arrived at between the parties, continuation of case arising out of Police Challan No.87/2 of 2009 would be exercise in futility. It is duty of the court to encourage genuine settlements of matrimonial disputes, more particularly, when all the disputes have been resolved and husband and wife have started happily living together. 8 Their Lordships of the Hon’ble Supreme Court in B.S. Joshi and others vs. State of Haryana and another, AIR 2003 SC 1388 have held that it is duty of the court to encourage genuine settlements of matrimonial disputes. Their Lordships have further held that section 320 of the Code of Criminal Procedure would not be a bar to the exercise of power of quashing under section 482 of the Code of Criminal Procedure. Their Lordships have held as under: “8. It is, thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in section 482 of the Code of extra ordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. 12. The special features in such matrimonial JT 1988 (1) SC 279; (1988) 1SCC 692 duty of the court to encourage genuine settlements of matrimonial disputes. 15. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. 12. The special features in such matrimonial JT 1988 (1) SC 279; (1988) 1SCC 692 duty of the court to encourage genuine settlements of matrimonial disputes. 15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and section 320 of 482 of the Code.” 9 Their Lordships of the Hon’ble Supreme Court in Shiji alias Pappu and others vs. Radhika and another, (2010) 10 SCC 705 have held that simply because an offence is not compoundable under section 320 is by itself no reason for High Court to refuse exercise its power under section 482 of the Code of Criminal Procedure. Their Lordships have held as under: “17. It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C.” 10 Their Lordships of the Hon’ble Supreme Court in Dimpey Gujral and others vs. Union Territory through Administrator, U.T. Chandigarh and others, AIR 2013 SC 518 have held that continuation of proceedings would in circumstances be abuse of process of court when the parties have entered into compromise irrespective that one of offences was non-compoundable. Their Lordships have held as under: whether since one of the offences alleged in the FIR is non-compoundable, the FIR could be quashed. In certain decisions of this court in view of the settlement arrived at by the parties, this court quashed the FIRs though some of the offences were non-compoundable. A two Judges' Bench of this court doubted the correctness of those decisions. Learned Judges felt that in those decisions, this court had permitted compounding of non-compoundable offences. The said issue was, therefore, referred to a larger bench. The larger Bench in Gian Singh v. State of Punjab & Anr. in SLP (Cri.) No.8989 of 2010 along with other connected matters, decided on 24/09/2012, considered the relevant provisions of the Code and the judgments of this court and concluded as under: 57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding. 5. In light of the above observations of this court in Gian Singh, we feel that this is a case where the 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. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the circumstances of the case, FIR No.163 dated 26/10/2006 registered under Section 147, 148, 149, 323, 307, 452 and 506 of the IPC at Police Station Sector 3, Chandigarh and all consequential proceedings arising therefrom including the final report presented under Section 173 of the Code and charges framed by the trial court are hereby quashed.” 11 Their Lordships of Hon’ble Supreme Court in Jitender Raghuvanshi and others vs. Babita Raghuvanshi and another, (2013) 4 Supreme Court Cases 58 have held that even if the Court is satisfied that parties have settled the disputes amicably and without any pressure, then for purpose of securing ends of justice, FIR or complaint or subsequent criminal proceedings in respect of said offences can be quashed under Section 482 of the Criminal Procedure Code. Their Lordships have held as under:- “15. In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings. 16. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its extraordinary jurisdiction. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article orders.” 12. In order to give quietus to the disputes, the proceedings are liable to be quashed to maintain harmony and welfare of the children being paramount. The young children need love and affection of both the parents. 13. Accordingly, in view of the discussion and analysis made hereinabove, the petition is allowed. The proceedings arising out of Police Challan No.87/2 of 2009 and impugned judgment dated 26.11.2011 are quashed. The proceedings pending before the learned Sessions Judge, Shimla are closed. Pending application(s), if any, also stands disposed of. No order as to costs.