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2021 DIGILAW 267 (HP)

Ashish Kumar v. State of H. P.

2021-04-27

VIVEK SINGH THAKUR

body2021
JUDGMENT : This petition has been preferred under Section 482 Cr.P.C. for quashing of FIR No. 37 of 2018, dated 9.5.2018, registered under Sections 363, 366, 376 and 506 of Indian Penal Code (hereinafter in short ‘IPC’) and Sections 4 and 6 of Prevention of Children from Sexual Offences Act (in short ‘POCSO Act’) at Police Station Panchrukhi, District Kangra HP and quashing of proceedings initiated in pursuant thereto pending in the concerned Court. 2. Respondent No.2 Shabnam as well as respondent No.3/complainant Champa Devi, duly identified by their counsel Mr.A.K. Sharma, Advocate, are present through Video Conferencing. 3. Respondent No.2-Shabnam, vide separate statement, placed on record, has stated that petitioner Ashish Kumar is her husband, who is an accused in FIR lodged by her grandmother, respondent No.3. She has further stated that she and Ashish Kumar were knowing each other and were having love affairs with intention to marry, however, they were suspecting that her grandmother would marry her somewhere else and, therefore, she had gone along with Ashish Kumar in his relations without telling any member of her family, whereupon, her grandmother thought that she was missing or some wrong had happened with her, and therefore, she lodged an FIR in Police Station Panchrukhi on 9.5.2018, whereupon, police had conducted the investigation and she was found in house of relations of Ashish Kumar and at that time, she was two months short for completing her age of discretion and, therefore, a criminal case was made out against Ashish Kumar and he was arrested and later on, was enlarged on bail. She has also stated that after some time, succumbing to their wishes, her grandmother agreed to marry them and she arranged their marriage on 3rd February, 2019 which has been registered in the Panchayat also and after marriage, she and Ashish Kumar are residing happily with her in-laws and they have also been blessed with one son Harshit, who was born on 15th July, 2019 and further stated that now she is residing happily with her husband under one roof and, therefore, she does not intend to continue the criminal proceedings against her husband which would be destructing not only her life but also the life of their son and her grandmother has also realized the mistake committed by her on account of misunderstanding and therefore, she is also agree to withdraw the FIR for compounding the case for betterment of her life and in the interest of her entire family including her husband and son and she (grandmother) has also come with her to Shimla. She has stated that compromise is out of her free will, consent and also without any kind of threat, coercion or pressure etc. 4. Respondent No.3/complainant Champa Devi has also stated in her statement that she is grandmother of Shabnam, whose father had expired 10 years ago and her mother had left the house and only she is looking after Shabnam as well as her younger brother. She has stated that in the year 2018, Shabnam had eloped with Ashish Kumar with intention to solemnize marriage, but she was not knowing about her love affairs and therefore, she had lodged the FIR, but, later on she came to know about reality and therefore, their marriage was solemnized with her consent and endorsed the statement made by Shabnam to be true and correct. She has further stated that she has deposed in the Court out of her free will, consent and also without any kind of threat, coercion or pressure etc. 5. Petitioner Ashish Kumar, vide separate statement, has endorsed the statements of Shabnam (respondent No.2) as well as complainant (respondent No.3) to be true and correct and has further stated that he undertakes to keep his family including his wife and child/children with care, love and affection. 5. Petitioner Ashish Kumar, vide separate statement, has endorsed the statements of Shabnam (respondent No.2) as well as complainant (respondent No.3) to be true and correct and has further stated that he undertakes to keep his family including his wife and child/children with care, love and affection. He has further stated that he has made the statement and compromised the matter out of his free will, consent and also without any kind of threat, coercion or pressure etc. 6. Quashing of FIR in present petition has been prayed on the basis of compromise deed arrived at between the parties, which is placed on record and duly signed by parties. All of them have endorsed the compromise. Copies of date of birth certificate of child of petitioner and respondent No.2 and marriage certificates issued by temple as well as Gram Panchayats have also been placed on record. 7 In reply, filed on behalf of respondent/State, the quashing of FIR has been opposed on the ground that petitioner has committed the offences by taking away a minor girl out of the custody of lawful guardianship and therefore, the consent of minor to quash the FIR is immaterial. It is further averred that if present petition is allowed the whole practice and investigation conducted by police will become futile and it will be sheer abuse of process of law. 8 Three Judges Bench of the Apex Court in Gian Singh Vs. State of Punjab and Ors. 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, 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. 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.PC is held to be exercisable for quashing criminal proceedings in cases having 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. 9. The Apex Court in Parbatbhai Aahir alias Parbathbhai Bhimsinghbhai Karmur and others vs. State of Gujarat and another, (2017)9 SCC 641 summarizing the broad principles regarding inherent powers of the High Court under Section 482 Cr.P.C. has recognized that these powers are not inhibited by provisions of Section 320 Cr.P.C. 10. The Apex Court 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 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. 11 No doubt Sections 363, 366 and 376 IPC and Sections 4 and 6 of POCSO Act are not compoundable even with the permission of Court. 11 No doubt Sections 363, 366 and 376 IPC and Sections 4 and 6 of POCSO Act are not compoundable even with the permission of Court. However, as explained by Hon’ble Supreme Court in Gian Singh’s, Narinder Singh’s, Parbatbhai Aahir’s and Laxmi Narayan’s cases supra, power of High Court under Section 482 Cr.PC is not inhibited by the provisions of Section 320 CrPC and FIR as well as criminal proceedings can be quashed by exercising inherent powers under Section 482 CrPC, if 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. 12. 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 proceedings, keeping in view of nature of this case, to save the time of the Court for utilizing to decide more effective and meaningful litigation, a commonsense approach, based on ground realities and bereft of the technicalities of law, should be applied. 13. Observations with respect to individual, family and societal interest, made by this Court in case Rahul Thakur vs. State of HP, reported in 2020(2) Shim.LC 629 , are also relevant in present case which are as under:- “13. Observation of a 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 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. 14. In present case also, deposition of victim in the Court in consonance with prosecution case would lead to landing her husband and parents in jail and pushing her in pitch dark and unnecessary trouble. 15. 14. In present case also, deposition of victim in the Court in consonance with prosecution case would lead to landing her husband and parents in jail and pushing her in pitch dark and unnecessary trouble. 15. 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; Cr.MMO No. 244 of 2019, decided on 07.05.2019 titled as X vs. State of H.P. & others, Criminal Miscellaneous (Main) No. 139 of 2018, decided on 26.5.2018, titled Sahil Chaudhary vs. State of H.P. and another, Cr.MMO No. 464 of 2018 decided on 9.8.2019 titled as Shri Devi vs. State of H.P. and another, Cr.MMO No. 377 of 2019 decided on 27.8.2019 titled as Shishpal vs. State of H.P. and another and Cr.MMO No. 41 of 2019 decided on 24.9.2019 titled as Ravi Goyal and another vs. State of H.P. and others wherein FIRs registered under Section 376 IPC and in some cases under Section 376 IPC read with provisions of POCSO Act have also been quashed in similar circumstances where victims and accused had married to each other. 16. The ratio of law laid down by the Apex Court on the issue of permitting quashing of FIR in such 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 the case has been registered against petitioner-accused, only for the reason that at that time victim below 18 years of age and further, it is not a 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 sexual intercourse was consensual for misrepresentation on the part of victim and now victim is living in her matrimonial house 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 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. 17. Family is a primary unit of society, which gives protection to all family members. Therefore, there is always endeavour to save the family. By saving a family, we definitely save the fabric of society and thus any endeavour to save the family is also interest of society. Therefore, in present case, there is conflict of interest not only between victim and societal interest but also amongst divergent societal interest i.e. to continue proceedings for commission of an offence having adverse impact on the society and to save the family in larger interest of society.” 14. At the time of eloping with petitioner, respondent No.2 was 17 years and 10 months old and, therefore, for minority of respondent No.2, criminal case, as registered, has been made out. At the time of eloping with petitioner, respondent No.2 was 17 years and 10 months old and, therefore, for minority of respondent No.2, criminal case, as registered, has been made out. Otherwise, two months later, for attaining the age of discretion by respondent No.2, in the same circumstances, no case would have made out, as can be easily gathered from the statement of respondent No.2 recorded, on oath, in this Court. Not only respondent No.2 but her grandmother has also found the petitioner as a suitable match for respondent No.2, after knowing about the love-affair of petitioner and respondent No.2 and, thus, has organized their marriage willingly and has come alongwith the couple today to attend the Court and has endorsed the statements of petitioner and respondent No.2 for withdrawing the FIR and closing the criminal proceedings arising thereto. The couple is living happily under one roof with their two years old small kid. Therefore, issue involved in present case is identical to the issue in Rahul Thakur’s case, referred supra, and, thus, observations made therein with respect to individual, family and societal interests are also relevant to the present case. 15. Keeping in view the facts and circumstances of the present case, I find that it is a fit case to exercise power under Section 482 Cr.P.C. and further even otherwise, in view of statement of the complainant, if criminal proceedings are allowed to continue, the same will adversely affect the married life of her granddaughter and she will be a victim of a case, which has been registered by her for protecting her granddaughter’s interest. 16. Considering facts and circumstances of the case in entirety, I am of the opinion that present petition deserves to be allowed for ends of justice and the same is allowed accordingly and FIR No. 37 of 2018, dated 9.05.2018, registered against the petitioner/accused at P.S. Panchrukhi, District Kangra H.P. is quashed. Consequent to quashing of said FIR, criminal proceedings pending in the concerned Court are also quashed. Petition stands disposed of in above terms, so also pending application, if any.