CRMMO/443/2017 of SHEETAL KUMAR Vs STATE OF HP on 28 December 2017

HO’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MMO No.443 of 2017

Decided on: December 28, 2017

Sheetal Kumar

.…......Petitioner

Versus

State of Himachal Pradesh & Another .......Respondents _________________________________________________

Coram:

The Hon’ble Mr. Justice Dharam Chand Chaudhary, J.

Whether approved for reporting?[1]. For the petitioner : Mr. Vijay Bir Singh, Advocate.

For the respondents : Mr. M.A. Khan and Mr. Pramod Thakur, Addl. Advocate Generals.

Respondent No.2 Jyoti Bala, in person.

Dharam Chand Chaudhary, J.(Oral).

Accused-petitioner Sheetal Kumar and

complainant-respondent No.2 Jyoti Bala, previously were husband & wife in relation. On account of strained relations, 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. Whether reporters of Local Papers may be allowed to see the judgment? Yes.

they have now dissolved their marriage vide decree of divorce with mutual consent, which is Annexure P-2 to this petition. It is during the course of proceedings complainant-respondent No.2 initiated against the accused-petitioner under the provision of Protection of Women from Domestic Violence Act, he uttered obscene language against her and allegedly criminally intimidated her in open Court. Learned Judicial Magistrate, Indora, on taking note of such language allegedly used by the accused-petitioner against the complainant-respondent No.2, recorded her statement and it was forwarded to Police Station, Indora, District Kangra, for registration of a case against the accused under Section 294, 504 & 506 of the Indian Penal Code. Consequently, FIR No.24 of 2013, dated 01.02.2013, came to be registered against the accused-petitioner. 2. On completion of the investigation, Challan against the accused-petitioner has been filed and even the prosecution evidence also stands recorded. The case is presently at the stage of recording the statement of the accused-petitioner under Section 313 of the Code of Criminal Procedure. It is at this stage, this petition came to be filed for quashing the pending criminal proceedings against the accused-petitioner on the ground that complainant-respondent No.2 and the accused-petitioner have now settled the controversy amicably and being so, complainant-respondent No.2 is no more interested to prosecute the criminal case any further. Their statements to this effect have also been recorded separately.

3. This petition came to be filed at an advance stage of the proceedings, i.e. recording of the statement of the accused under Section 313 of the Code of Criminal Procedure. The question, as such, arise that when the statement of complainant-respondent No.2 has already been recorded in the trial Court, whether proceedings at this stage can be quashed or not. The answer to this poser would be in affirmative for the reason that an application for compounding of an offence in a case of conviction, can even be filed during the pendency of the appeal in the appellate Court also. Support in this regard can be drawn from the judgment of Allahabad High Courtin case titled Chhotey Singh and others vs. State of Utter Pradesh, 1980 Cr. Law Journal 583. It has been held in this judgment that an application for compounding of offence can only be made in a pending proceeding and not after the decision of the appeal. In a case of conviction under Section 325 & 452 of the Indian Penal Code the application for compounding of offence even was filed in the Hon’ble Supreme Court in Rajinder Singh vs. The State of (Delhi Admn.), AIR 1980 SC 1200. That application to the extent of compounding of offence punishable under Section 325 IPC was allowed and the appellant acquitted of the charge so framed against him. Since the offence punishable under Section 452 of the Indian Penal Code is not compoundable, therefore, the conviction of the appellant was maintained, however, the sentence was reduced to the period already

however, the sentence was reduced to the period already undergone. Similar is the view of the matter taken again by the Hon’ble Apex Court in Chhidda Lal vs. Bal Swarup, 1981 Cr. Law Journal 1705. The case law cited supra, therefore, speaks in plenty that what to speak of compounding of an offence in the trial Court under Section 320 of the Code of Criminal Procedure in the trial Court, an application under the Section ibid can even be filed before the appellate Court also.

4. If coming to the case in hand, the offence punishable under Section 504 & 506 of the Indian Penal Code, is compoundable under Section 320(1) of the Code of Criminal Procedure.

5. If coming to the offence punishable under Section 294 of the Indian Penal Code, the provision of maximum sentence for commission of such an offence is three months imprisonment or fine and it can even be imprisonment and fine both. The present is not a petition for compounding of an offence and rather in view of the compromise arrived at between the parties under Section 482 of the Code of Criminal Procedure for quashing of FIR and the consequential criminal proceedings.

6. The offence under Section 294 of the Indian Penal Code is neither grievous nor can be termed heinous in nature and when complainant-respondent No.2 is not interested to prosecute the criminal proceedings against the accused-petitioner any further, in the given facts and circumstances of the case, it is not deemed appropriate to allow such proceedings continue against the accused-petitioner. Otherwise also, the offence allegedly committed is against complainant-respondent No.2 having no repercussion in the society and public at large. The alleged offence is also committed at a stage when matrimonial proceedings were pending consideration in the Court of learned Judicial Magistrate, Indora, District Kangra. The Hon’ble Apex Court in Gian Singh vs. State of Punjab and Another, (2012)

10 Supreme Court Cases 303, has held that where the offence committed is only against the victim, i.e. respondent-complainant and matrimonial in nature, in the event of the accused and complainant arrived at an amicable settlement, the FIR/proceedings should be quashed and rightly so because in such a situation to allow the proceedings to continue would be nothing but an abuse of process of law. 7. Having said so, not only the FIR Annexure P-1

but the proceedings in criminal Case No.566 of 2013, titled State of Himachal Pradesh vs. Sheetal Kumar, pending disposal in the Court of learned Judicial Magistrate, 1[st] Class, Indora, District Kangra, also stands quashed and set aside. The petition is accordingly disposed of.

8. sent to the trial Court for record and compliance.

An authenticated copy of this judgment be (Dharam Chand Chaudhary) Judge December 28, 2017

(Yashwant)