Rajesh Kumar And Others vs State Of H.P. And Another on 30 April, 2025

Himachal Pradesh High Court

Rajesh Kumar And Others vs State Of H.P. And Another on 30 April, 2025

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No. 1285 of 2024.

Reserved on: 1.4.2025.

Date of Decision: 30.4.2025.

           Rajesh Kumar and others                                                ...Petitioners
                                                   Versus

           State of H.P. and another                                             ...Respondents


           Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1

For the Petitioners : Mr. Deshmiter Thakur, Advocate.
For the Respondents : Mr Prashant Sen, Deputy Advocate
General for respondents Nos. 1 to
3/State.

Mr. Rajesh Prakash, Advocate, for
respondent No.4.

Rakesh Kainthla, Judge
The petitioner has filed the present petition under

Section 528 of Bhartiya Nagrik Surksha Sahinta (BNSS),2023, for

quashing of FIR No. 228, dated 2.8.2022, registered at Police

station Balh, District Mandi, for the commission of offences

under Section 377, 498-A, 323, 355, 504, 506 and 34 Indian Penal

Code (IPC). It has been asserted that the informant filed a
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
complaint against the petitioner on 2.8.2022. The matter was

compromised with the intervention of the respectable Members

of the Society. The informant does not want to proceed further

with her complaint. Therefore, it was prayed that the present

petition be allowed and the FIR No. 228 /2022 be ordered to be

quashed.

2. The informant’s statement was recorded on 18.3.2025,

in which she stated that she had compromised the matter with

the accused voluntarily without any influence from any person,

and she was residing happily in her matrimonial home. She had

no objection in case the petition is allowed, and the FIR is ordered

to be quashed.

3. I have heard Mr. Deshmiter Thakur, learned counsel

for the petitioner and Mr. Prashant Sen, learned Deputy Advocate

General for respondents Nos. 1 to 3-State, and Mr. Rajesh

Prakash, learned counsel for the informant.

4. Mr. Deshmiter Thakur, learned counsel for the

petitioner, submitted that the parties have voluntarily

compromised the matter and the informant does not want to

proceed further with the matter. An offence punishable under

Section 377 of the IPC cannot be committed between a husband
and wife. He prayed that the present petition be allowed and the

FIR be quashed. He relied upon the judgment of the Uttarakhand

High Court in Cr. Revision No. 707 of 2023 titled Dr. Kirti Bhushan

Mishra Vs State of Uttarakhand and others, decided on 19.07.2024 in

support of his submission.

5. Mr. Prashant Sen, learned Dy. Advocate General for

respondents Nos. 1 to 3-State submitted that the offence

punishable under section 377 is an offence against society and

cannot be compounded. Therefore, he prayed that the present

petition be dismissed.

6. Mr. Rajesh Prakash, learned counsel for the informant,

submitted that he has no objection in case the FIR is ordered to be

quashed.

7. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

8. The FIR was lodged for the commission of offences

punishable under Sections 498-A, 323, 504, read with Section 34

IPC. The offences punishable under Sections 323, 504 and 34 of

the IPC are compoundable as per Section 320 of the Code of

Criminal Procedure (CrPC). It was laid down in Gian Singh versus

State, 2012 (10) SCC 303, Narender versus State of Punjab, 2014 (16)
SCC 466, Vikas Singh vs. State of H.P. (2023) I DMC 335 (HP) and

Sanjay Kumar vs. State of H.P 2023 (1) Him L.R. 602 that the offence

punishable under Section 498-A can be quashed in exercise of the

inherent powers of the High Court after the compromise.

Therefore, the offence punishable under Section 498-A of the IPC

can be quashed by this Court.

9. It was submitted that an offence punishable under

Section 377 of the IPC cannot be committed between the husband

and wife. A reliance was placed upon the judgment of the

Uttarakhand High Court in Dr. Kriti Bhushan Mishra (supra). It is

difficult to accept the submission and follow the judgment of the

Uttarakhand High Court with utmost humility. The Uttarakhand

High Court held that an exception to Section 375 of the IPC cannot

be taken out from Section 377 of the IPC. This is a clear case of

judicial legislation. The legislature has not enacted any exception

in section 377, and it is not permissible to incorporate an

exception created under section 375 into Section 377 of the IPC by

any process of interpretation. This is contrary to the plain words

of the statute and impermissible in my humble opinion. Thus, the

submission that there can be no offence punishable under Section

377 of the IPC between the husband and wife is rejected.

10. It was submitted that the offence punishable under

Section 377 of the IPC was declared unconstitutional by the

Hon’ble Supreme Court, and no FIR can be registered for the

commission of the aforesaid offence. This submission is not

acceptable. The Hon’ble Supreme Court held in Navtej Singh Johar

v. Union of India, (2018) 10 SCC 1 that Section 377 insofar as it

criminalises consensual sexual acts between adults is violative of

Articles 14, 15, 19 and 21 of the Constitution of India. However,

this will not affect non-consensual sexual acts against adults, all

acts of carnal intercourse against minors and acts of bestiality. It

was observed:-

“645.1. In view of the aforesaid findings, it is declared that
insofar as Section 377 criminalises consensual sexual acts
of adults (i.e. persons above the age of 18 years who are
competent to consent) in private, is violative of Articles 14,
15, 19, and 21 of the Constitution. It is, however, clarified
that such consent must be free consent, which is
completely voluntary in nature and devoid of any duress or
coercion.

645.2. The declaration of the aforesaid reading down of
Section 377 shall not, however, lead to the re-opening of
any concluded prosecutions, but can certainly be relied
upon in all pending matters, whether they are at the trial,
appellate, or revisional stages.

645.3. The provisions of Section 377 will continue to
govern non-consensual sexual acts against adults, all acts
of carnal intercourse against minors, and acts of
bestiality.”

11. Therefore, the declaration of unconstitutionality of

Section 377 of IPC will not have any effect in the present case

because, as per the informant, the act of sexual intercourse

against the order of nature was done without her consent and it is

not covered by the judgment of the Hon’ble Supreme Court in

Navtej Singh Johar (supra).

12. The guidelines for quashing the FIR based on

compromise were laid down by the Hon’ble Supreme Court

in Narinder Singh v. State of Punjab, (2014) 6 SCC 466, as under:

“29. In view of the aforesaid discussion, we sum up and lay
down the following principles by which the High Court would
be guided in giving adequate treatment to the settlement
between the parties and exercising 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 the criminal proceedings:

29.1. Power conferred under Section 482 of the Code is to
be distinguished from the power which lies in the Court to
compound the offences under Section 320 of the Code. No
doubt, under Section 482 of the Code, the High Court has
inherent power to quash the criminal proceedings even in
those cases which are not compoundable, where the
parties have settled the matter between themselves.

However, this power is to be exercised sparingly and with
caution.

29.2. When the parties have reached the settlement and on
that basis, a petition for quashing the criminal proceedings
is filed, the guiding factor in such cases would be to
secure : (i) ends of justice, or (ii) to prevent abuse of the
process of any court. While exercising the power the High
Court is to form an opinion on either of the aforesaid two
objectives.

29.3. Such a power is not to be exercised in those prosecutions
which involve heinous and serious offences of mental
depravity or offences like murder, rape, dacoity, etc. Such
offences are not private in nature and have a serious impact on
society. Similarly, for the offences alleged to have been
committed under special statutes like the Prevention of
Corruption Act or the offences committed by public
servants while working in that capacity are not to be
quashed merely on the basis of compromise between the
victim and the offender.

29.4. On the other hand, those criminal cases having
overwhelmingly and predominantly civil character,
particularly those arising out of commercial transactions
or arising out of matrimonial relationship or family dis-
putes should be quashed when the parties have resolved
their entire disputes among themselves.

29.5. While exercising 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 criminal cases.”(Emphasis supplied)

13. This position was reiterated in Parbatbhai Aahir Alias

Parbathbhai Bhimsinhbhai Karmur v. State of Gujrat, (2017) 9 SCC

641, wherein it was observed:

“16. The broad principles which emerge from the
precedents on the subject, may be summarised in the fol-
lowing 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 Criminal Procedure
Code, 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 the
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 se-

cure 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. 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 overwhelming or
predominant element of a civil dispute. They stand on a
distinct footing insofar 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.” (Emphasis supplied)

14. It was held in State of M.P. v. Madanlal (2015) 7 SCC 681,

that the compromise cannot be thought of in cases of rape or

attempt to rape. It was observed:

“We would like to clearly state that in a case of rape or
attempt of rape, the conception of compromise under no
circumstances can really be thought of.”

15. It was held in Ramji Lal Bairwa v. State of Rajasthan,

2024 SCC OnLine SC 3193 that a heinous offence which affects

society cannot be compromised. It was observed: –

“32. In the decision relied on by the High Court to quash
the proceedings viz., Gian Singh‘s case (supra) and the
decision in Laxmi Narayan’s case (supra) in unambiguous
terms this Court held that the power under Section 482, Cr.
P.C. could not be used to quash proceedings based on a
compromise if it is in respect of heinous offence which is
not private in nature and have a serious impact on the
society…”

16. The offence punishable under Section 377 of the IPC is

similar to an offence punishable under Section 376 of the IPC, and

similar consideration will apply to it. Since the offence punishable

under Section 376 has been held to be heinous and against

society, the offence punishable under Section 377 of the IPC is

also to be held to be heinous and against society, which cannot be

compromised by the parties and the FIR cannot be quashed while

exercising inherent jurisdiction under Section 482 of Cr.PC.

17. It was submitted that the allegations regarding the

commission of an offence punishable under Section 377 of the

IPC are false and were introduced during the investigation. This

submission will not help the petitioner. This Court cannot go into

the truthfulness or otherwise of the allegations made in the
complaint. This position was laid down in Maneesha Yadav v. State

of U.P., 2024 SCC OnLine SC 643, wherein it was held: –

“13. As has already been observed hereinabove, the Court
would not be justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint at the stage of
quashing of the proceedings under Section 482 Cr.
P.C. However, the allegations made in the FIR/complaint, if
taken at their face value, must disclose the commission of
an offence and make out a case against the accused. At the
cost of repetition, in the present case, the allegations made
in the FIR/complaint, even if taken at their face value, do
not disclose the commission of an offence or make out a
case against the accused. We are of the considered view that
the present case would fall under Category-3 of the
categories enumerated by this Court in the case of Bhajan
Lal (supra).

14. We may gainfully refer to the observations of this Court
in the case of Anand Kumar Mohatta v. State (NCT of Delhi),
Department of Home (2019) 11 SCC 706: 2018 INSC 1060:

“14. First, we would like to deal with the submission
of the learned Senior Counsel for Respondent 2 that
once the charge sheet is filed, the petition for
quashing of the FIR is untenable. We do not see any
merit in this submission, keeping in mind the
position of this Court in Joseph Salvaraj A. v. State of
Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7
SCC 59: (2011) 3 SCC (Cri) 23]. In Joseph Salvaraj
A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC
59: (2011) 3 SCC (Cri) 23], this Court while deciding the
question of whether the High Court could entertain
the Section 482 petition for quashing of FIR when the
charge-sheet was filed by the police during the
pendency of the Section 482 petition, observed: (SCC
p. 63, para 16)
“16. Thus, the general conspectus of the
various sections under which the appellant is
being charged and is to be prosecuted would
show that the same is not made out even prima
facie from the complainant’s FIR. Even if the
charge sheet had been filed, the learned Single
Judge [Joesph Saivaraj A. v. State of Gujarat, 2007
SCC OnLine Guj 365] could have still examined
whether the offences alleged to have been
committed by the appellant were prima facie
made out from the complainant’s FIR, charge-
sheet, documents, etc. or not.”

18. It was laid down by the Hon’ble Supreme Court in

Dharambeer Kumar Singh v. State of Jharkhand, (2025) 1 SCC 392:

2024 SCC OnLine SC 1894 that the Court, while exercising

jurisdiction under Section 482 of CrPC, cannot conduct a mini-

trial. It was observed at page 397:

“17. This Court, in a series of judgments, has held that
while exercising inherent jurisdiction under Section 482 of
the Criminal Procedure Code, 1973, the High Court is not
supposed to hold a mini-trial. A profitable reference can be
made to the judgment in CBI v. Aryan Singh [CBI v. Aryan
Singh, (2023) 18 SCC 399: 2023 SCC OnLine SC 379]. The
relevant paragraph from the judgment is extracted
hereunder: (SCC paras 6-7)

6. … As per the cardinal principle of law, at the stage of
discharge and/or quashing of the criminal proceedings,
while exercising the powers under Section 482CrPC, the
Court is not required to conduct the mini-trial. …

7. … At the stage of discharge and/or while exercising
the powers under Section 482CrPC, the Court has very
limited jurisdiction and is required to consider ‘whether
any sufficient material is available to proceed further
against the accused for which the accused is required to
be tried or not’.”

19. A similar view was taken in Dineshbhai Chandubhai

Patel v. State of Gujarat, (2018) 3 SCC 104: (2018) 1 SCC (Cri) 683:

2018 SCC OnLine SC 6, wherein it was observed at page 111:

“29 [Ed.: Paras 29 and 30 corrected vide Official
Corrigendum No. F.3/Ed.B.J./2/2018 dated 31-1-
2018.]. The High Court, in our view, failed to see the extent
of its jurisdiction, which it possesses to exercise while
examining the legality of any FIR complaining commission
of several cognizable offences by the accused persons. In
order to examine as to whether the factual contents of the
FIR disclose any prima facie cognizable offences or not, the
High Court cannot act like an investigating agency and nor
can it exercise the powers like an appellate court. The
question, in our opinion, was required to be examined
keeping in view the contents of the FIR and prima facie
material, if any, requiring no proof.

30 [Ed.: Paras 29 and 30 corrected vide Official
Corrigendum No. F.3/Ed.B.J./2/2018 dated 31-1-2018.] . At
this stage, the High Court could not appreciate the
evidence, nor could it draw its own inferences from the
contents of the FIR and the material relied on. It was more
so when the material relied on was disputed by the
complainants and vice versa. In such a situation, it
becomes the job of the investigating authority at such
stage to probe and then of the court to examine the
questions once the charge-sheet is filed along with such
material as to how far and to what extent reliance can be
placed on such material.

31. In our considered opinion, once the court finds that the
FIR does disclose the prima facie commission of any
cognizable offence, it should stay its hand and allow the
investigating machinery to step in to initiate the probe to
unearth the crime in accordance with the procedure
prescribed in the Code.

32. The very fact that the High Court, in this case, went into
the minutest details in relation to every aspect of the case
and devoted 89 pages of judgment to quash the FIR in part
led us to draw a conclusion that the High Court had
exceeded its powers while exercising its inherent
jurisdiction under Section 482 of the Code. We cannot
concur with such an approach of the High Court.

33. The inherent powers of the High Court, which are
obviously not defined as being inherent in its very nature,
cannot be stretched to any extent and nor can such powers
be equated with the appellate powers of the High Court
defined in the Code. The parameters laid down by this
Court while exercising inherent powers must always be
kept in mind, else it would lead to committing the
jurisdictional error in deciding the case. Such is the case
here.

34. On perusal of the three complaints and the FIR
mentioned above, we are of the considered view that the
complaint and FIR, do disclose a prima facie commission
of various cognizable offences alleged by the complainants
against the accused persons and, therefore, the High Court
instead of dismissing the application filed by the accused
persons in part should have dismissed the application as a
whole to uphold the entire FIR in question.”

20. A charge sheet has been filed before the Court. The

learned Trial Court is seized of the matter. It was laid down by the

Hon’ble Supreme Court in Iqbal v. State of U.P., (2023) 8 SCC 734:

2023 SCC OnLine SC 949 that when the charge sheet has been filed,

the learned Trial Court should be left to appreciate the same. It

was observed:

“At the same time, we also take notice of the fact that the
investigation has been completed and the charge sheet is
ready to be filed. Although the allegations levelled in the
FIR do not inspire any confidence, particularly in the
absence of any specific date, time, etc. of the alleged
offences, we are of the view that the appellants should
prefer a discharge application before the trial court under
Section 227 of the Code of Criminal Procedure (CrPC). We
say so because even according to the State, the
investigation is over and the charge sheet is ready to be
filed before the competent court. In such circumstances,
the trial court should be allowed to look into the materials
which the investigating officer might have collected
forming part of the charge sheet. If any such discharge
application is filed, the trial court shall look into the
materials and take a call whether any discharge case is
made out or not.”

21. No other point was urged.

. 22. Consequently, the present petition is partly allowed,

and FIR No. 228 of 2022, registered for the commission of

offences punishable under Sections 498A, 323, 355, 504, and 506

read with Section 34 of the Indian Penal Code (IPC), stands

quashed whereas it will proceed for the commission of an offence

punishable under Section 377 of the IPC.

23. Parties are permitted to produce a copy of this

judgment, downloaded from the web page of the High Court of

Himachal Pradesh before the authorities concerned, and the said

authorities shall not insist on the production of a certified copy
but if required, may verify passing of the order from Website of

the High Court.

(Rakesh Kainthla)
Judge

30th April, 2025
(G.M)