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2018 DIGILAW 998 (HP)

Sahil Chaudhary v. State of H. P.

2018-05-26

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Consequent upon the order passed yesterday on 25.05.2018, accused-petitioner Sahil Chaudhary has been produced in the custody of Constable Vinod Kumar No. 666, Constable Manish Kumar No. 526 and under the supervision of HC Kiran Kumar No. 119 of Police Line, Dharamshala, District Kangra, H.P. 2. This petition under Section 482 of the Code of Criminal Procedure has been filed with a prayer to quash FIR No. 1/18, Annexure P-1 registered in Women Police Station, Dharamshala District Kangra, H.P. against the accused-petitioner on 13.03.2018 under Sections 323, 376 and 506 IPC and Section 67(A) of the Information and Technology Act. The complainant is respondent No.2 herein. The grounds on which the FIR has been sought to be set aside and quashed are that during the course of investigation of the case, the complainant party and also the parents of the accused have compromised all disputes with the intervention of local Gram Panchayat, Kaned at Dharamshala on 3rd April, 2018. The compromise so arrived at before the Gram Panchayat is Annexure P-2. The settlement so arrived at with an understanding that the accused petitioner will solemnize marriage with complainant respondent No.2. She, therefore, is no more interested to prosecute the accused-petitioner any further in this case. According to her, they are in love with each other for the last 3-4 years being student of the same school i.e., Government Senior Secondary School, Mandal, District Kangra, H.P. The respondent complainant has executed the affidavit, Annexure P-3. According to her, she was compelled by the circumstances to report the matter to the police as a result of some misunderstanding between them. According to her, now they both are ready and willing to solemnize marriage. Even their parents have also consented for their marriage. It is in this background, this petition came to be filed in this Court. 3. Respondent No.2-complainant is present in person. Her statement has been recorded separately. Even the statement of the accused-petitioner, who has been produced in custody by the police, has also been recorded separately. Besides, the joint statement of parents of respondent No.2-complainant and that of accused-petitioner who are also present in person have also been recorded separately. 3. Respondent No.2-complainant is present in person. Her statement has been recorded separately. Even the statement of the accused-petitioner, who has been produced in custody by the police, has also been recorded separately. Besides, the joint statement of parents of respondent No.2-complainant and that of accused-petitioner who are also present in person have also been recorded separately. The crux of the averments in the petition and statement so recorded is, therefore, that neither respondent-complainant nor her parents are interested in prosecuting the accused petitioner any further in the criminal case registered against him vide FIR, Annexure P-1. On the other hand, not only the accused-petitioner and respondent complainant but their parents are also in favour of marriage of the accused-petitioner and respondent No.2-complainant. Not only the accused-petitioner but the respondent-complainant is also major. She even was major at the time of commission of alleged offence also. It is in this background, the question as to whether FIR, Annexure P-1 to this petition, deserves to be quashed and set aside or not, has to be determined. 4. Before coming to answer the question ibid, it is desirable to take note of the law applicable in a case of this nature. A Larger Bench of the Hon’ble Apex Court in Gian Singh V. State of Punjab and another, (2012) 10 SCC 303 has laid down the guidelines to be followed by the High Courts while considering a question of quashing FIR on the basis of compromise. It has been held in this judgment that the High Court in exercise of inherent powers vested in it under Section 482 of the Code of Criminal Procedure may quash FIR/criminal proceedings in a case where the offence allegedly committed by the accused though is not compoundable, however, the victim and accused have settled the differences amicably. Such powers can be exercised only in appropriate cases, having arisen out of civil, mercantile, commercial, financial, partnership or such other transactions of like nature including matrimonial or the case relating to dowry etc., in which the wrong basically is done to the victim. This judgment also takes note of the fact that FIR on the basis of compromise should not be quashed in a case of serious nature like rape, dacoity and corruption etc., having serious impact in the society. 5. This judgment also takes note of the fact that FIR on the basis of compromise should not be quashed in a case of serious nature like rape, dacoity and corruption etc., having serious impact in the society. 5. The Apex Court in Narinder Singh and others V. State of Punjab and another, (2014) 6 SCC 466 while quashing the FIR in a case registered under Section 307 of the Indian Penal Code has held as under: “We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., ‘respectable persons have been trying for a compromise up till now, which could not be finalized’. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with Police Station LOPOKE, District Amritsar Rural be quashed. We order accordingly.” 6. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with Police Station LOPOKE, District Amritsar Rural be quashed. We order accordingly.” 6. The Apex Court in a recent judgment titled Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and others V. State of Gujarat and another (2017) 9 SCC 641 has reiterated the broad principles need to be followed while considering the prayer for quashing the FIR and consequential criminal proceedings on the basis of compromise, which reads as follow:- “16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions : 16.1. 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 recognises and preserves powers which inhere in the High Court; 16.2. 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 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. 16.3. 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; 16.4. 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; 16.5. 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; 16.6. 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; 16.6. 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. 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; 16.7. As distinguished from serious offences, there may be criminal cases which have an over whelming 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; 16.8. 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; 16.9. 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 the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions 16.8 and 16.9 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 weigh in the balance. 7. 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 weigh in the balance. 7. As per the ratio of law laid down by the Apex Court in the judgment ibid, the inherent powers to quash criminal proceedings should be exercised to secure the ends of justice or to prevent the abuse of process of any Court. Also that, criminal proceedings should be quashed in those cases where the possibility of conviction is remote and the continuation of the criminal proceedings would cause oppression and prejudice, of course, as per law laid down. There should be 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 even if the victim or the family of the victim have settled the dispute. It has further been held in this judgment that such offences are not private in nature but have serious impact upon the society also. 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. 8. Such being the legal position, in normal circumstances, this Court would have not entertained the petition in view of non-compoundable offences heinous and serious in nature have allegedly been committed by the accused-petitioner. In this case besides, commission of offence punishable under Sections 323, 506 IPC and 67(A) of the Information Technology Act, the offence punishable under Section 376 IPC is also alleged to have been committed by the accused-petitioner. The offence punishable under Section 376 IPC is grievous and heinous in nature and considered an offence against the society at large. However, the Hon’ble Apex Court in Parbatbhai Aahir’s case cited supra, has emphasized that when the parties have reached at some settlement and on the basis thereof the petition for quashing the criminal proceedings is filed, the guiding factor would be to secure (i) ends of justice or (ii) to prevent abuse of process of any Court. While exercising the powers, the High Court is to form an opinion to achieve either of the above two objectives. 9. While exercising the powers, the High Court is to form an opinion to achieve either of the above two objectives. 9. Also that, while excersizing 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 proceedings. Not only this, it has also been emphasized in this judgment that where the offences are purely private in nature and do not concern with public policy, the prayer to quash the proceedings involving non-compoundable offences on the basis of compromise can be excersized. 10. Now, if coming to the given facts and circumstances, true it is that the offence punishable under Section 376 IPC allegedly committed by the accused-petitioner is grievous and heinous in nature. While it is private in nature as respondent No.2- complainant is the victim of such offence and at the same time, such an offence has a serious impact upon the society also. The mitigating circumstances herein, however, are that the accused-petitioner and respondent No.2-complainant being in love right from their school days, had acquaintance with each other. As a matter of fact, they both wanted to solemnize marriage, however, on being visited by adverse circumstances, the accused-petitioner came to be arrested in the case registered at the instance of respondent No.2-complainant. She is now not going to depose against the accused-petitioner any further as has come in her statement recorded separately. Not only this, but she has already executed an affidavit (Annexure P-3) to this effect. She is major and even at the time of the commission of alleged offence also, she had already attained the age of majority. She is a young girl of 20 years of age. The accused-petitioner is aged 23 years. Not only they, but their parents are also in favour of their marriage so that they could settle themselves in their life. In the light of such mitigating circumstances, it would be harsh and oppressive not only to the accused-petitioner and respondent No.2-complainant, in case criminal proceedings are allowed to continue. Learned Single Judge of Punjab and Haryana High Court, under similar circumstances has quashed the FIR registered under Section 376 and 506 IPC in CRM-M-3577-2018 titled Lovely V. State of Punjab and another decided on 9.3.2018. 11. Learned Single Judge of Punjab and Haryana High Court, under similar circumstances has quashed the FIR registered under Section 376 and 506 IPC in CRM-M-3577-2018 titled Lovely V. State of Punjab and another decided on 9.3.2018. 11. Therefore, in view of what has been said hereinabove and law laid down by way of various judicial pronouncements, including the recent one in Parbatbhai Aahir’s case supra, allowing the criminal proceedings to continue against the accused petitioner would not only be harsh and oppressive to the accused-petitioner and respondent No2- complainant, but would also be against the spirit of the law laid down, hence amounts to abuse of process of Court. 12. Above all the proceedings are at initial stage as challan has also not been filed. Therefore, when the settlement as arrived at immediately after the alleged commission of offence, liberal approach is required to be taken in the matter of quashing the pending criminal proceedings against the accused petitioner. The accused-petitioner and respondent No.2-complainant intend to solemnize marriage and live in the company of each other as husband and wife. Not only the accused-petitioner in his statement recorded separately has undertaken to make the life of respondent No.2-complainant comfortable in the matrimonial home, but similar undertaking has been given by his parents also in their joint statements recorded separately. The quashing of criminal proceedings would, therefore, be in their better interest. 13. For all the reasons hereinabove and in the peculiar facts and circumstances of the present case, this petition is allowed. Consequently, FIR No. 1/18, Annexure P-1, registered against the accused petitioner in Women Police Station, Dharamshala, District Kangra under Sections 323, 376, 506 IPC and Section 67(A) of the Information and Technology Act is ordered to be quashed and set aside. Since the accused-petitioner is in jail after his arrest in this case, therefore, he be set free forthwith, if not required in any other case. The Registry to prepare the jail warrants accordingly. 14. The petition is accordingly disposed of. Pending applications, if any, shall also stand disposed of. An authenticated copy of this judgment be sent to learned trial Court for record/compliance.