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Lal Mohammad vs State Of Uttarakhand on 18 July, 2018

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 951 of 2018

Lal Mohammad ….Applicant
Versus
State of Uttarakhand ….Respondent

Mr. Z.U. Siddiqui, Advocate for the applicant.
Mr. S.S. Adhikari, A.G.A. alongwith Mr. P.S. Uniyal, Brief Holder for the State
of Uttarakhand.

Dated: 18.07.2018

Hon’ble V.K. Bist, J.

Present Criminal Misc. Application has been
filed by the applicant seeking the following relief:

“I. Quash the Criminal Trial No. 115/ 2017
Under Section 366, 376, 363 IPC and 3/4
Pocso PS Banbhoolpura Haldwani District
Nainital “State Vs Lal Muhammed” pending
before the court of Learned Special Judge
Pocso and ADJ Haldwani, otherwise the
applicant shall suffer irreparable loss and
injury and/or.”

2. Facts, in brief, are that first information
report was lodged by the complainant on 01.07.2017 at
Police Station Banbhoolpura, Haldwani, District Nainital
stating therein that her daughter, namely, Chandni,
aged about 16 years, left her house without informing
anybody. She was searched in relation, but, was not
found. It was also stated in the F.I.R. that the applicant
was a tenant in their house and he also went missing
from that day. In the F.I.R., the complainant
apprehended that the applicant had enticed away her
daughter. Applicant was arrested. Thereafter,
investigation was carried out and after conclusion of
investigation, the Investigating Officer filed charge sheet
against the applicant. The trial, bearing Special
2

Sessions Trial No. 54 of 2017, ‘State Vs. Lal
Mohammed’, is in progress under Section 376, 363, 366
of I.P.C. and Section 3/4 of the POCSO Act before the
learned Special Judge, POCSO/ Fast Track Court,
Haldwani, District Nainital. The statement of the
prosecutrix was recorded under Section 164 of the
Cr.P.C. Thereafter, applicant moved an application
seeking bail before the learned Special Judge, POCSO,
which was dismissed by the learned Special Judge,
POCSO on 23.12.2017. Thereafter, applicant
approached this Court for grant of bail. On 21.02.2018,
applicant was granted bail by this Court by considering
the statement of the prosecutrix given before the trial
Court.

3. Submission of learned counsel for the
applicant is that that the applicant has falsely been
implicated by the police under Section 366, 376, 363 of
I.P.C. and Section 3/4 of the POCSO Act. He submitted
that the mother of the prosecutrix was examined as
P.W.-1 and the prosecutrix was examined as P.W.-2.
None of them has supported the version of the
prosecution. He referred the statement of the mother of
the prosecutrix given before the trial Court in which she
has stated that she had not been told by anyone that
her daughter had gone with the applicant. He also
referred the statement of the prosecutrix given before
the trial Court, in which she stated that on 28.06.2017
she had not gone with the applicant and the applicant
had never made any physical relation with her. She
further stated that on 02.07.2017 she was coming from
Pilibhit to Haldwani and when she reached Haldwani
3

Roadways Station, the police caught her. At that time,
the applicant was not with her. In her statement, she
also stated that the statement given by her before the
Magistrate was under the influence of the police
personnel.

4. By referring the statement of the
complainant as well as of the prosecutrix before the
Court below, the learned counsel for the applicant
submitted that no purpose would be served by keeping
the trial pending. He submitted that continuance of trial
would be an abuse of process of the Court. He further
submitted that, in view of statement of complainant and
prosecutrix, the applicant cannot be convicted under
Section 366, 376, 363 of I.P.C. and Section 3/4 of the
POCSO Act and, therefore, under such circumstances,
entire proceedings of Criminal Trial No. 115 of 2017,
under Section 366, 376, 363 of I.P.C. and Section ¾ of
the POCSO Act, P.S. Banbhoolpura, Haldwani, District
Nainital, ‘State Vs. Lal Muhammed’, pending before the
Court of learned Special Judge, POCSO, Additional
District Judge, Haldwani should be quashed. Learned
A.G.A., on the other hand, submitted that trial is on and
it will reach to its logical conclusion. Therefore, C482
petition deserves to be dismissed.

5. I heard the learned counsel for the applicant
as well as learned Government Pleader. The question is,
whether in the event of prosecution witnesses being
turned hostile, the proceedings of trial Court should be
quashed by the High Court under Section 482 of Cr.P.C.
The answer is ‘NO’. Procedure prescribed under the
4

Cr.P.C. has some purpose. After taking cognizance and
after framing of charge, the trial must proceed in
accordance with law. In the present case, though, on
the basis of statement given by the prosecutrix and her
mother, the possibility of applicant’s being acquitted
cannot be ruled out, but, at the same time, possibility of
conviction can also not be ruled out as trial is still on
and further evidence is to be led. Medical report
regarding rape and statement of the doctor will also be
seen by the trial Court. Let the trial Court conclude the
trial and appreciate entire evidence before giving its
verdict. The proceedings of the trial Court can be
quashed only on very limited grounds viz. to prevent
abuse of process of the Court or to secure the ends of
justice as held by Hon’ble Supreme Court in various
judgments. Relevant paragraphs of few judgments are
being referred hereinafter:

(i). N. Soundaram Vs. P.K. Pounraj and
another, reported in (2014) 10 SCC 616:

“13. It is well settled by this Court in a catena of
cases that the power under Section 482 CrPC has to
be exercised sparingly and cautiously to prevent the
abuse of process of any court and to secure the
ends of justice. The inherent power should not be
exercised to stifle a legitimate prosecution. The High
Court should refrain from giving a prima facie
decision unless there are compelling circumstances
to do so. Taking the allegations and the complaint
as they were, without adding or subtracting
anything, if no offence was made out, only then the
High Court would be justified in quashing the
proceedings in exercise of its power under Section
482 CrPC. An Investigation should not be shut out
at the threshold if the allegations have some
substance.”

(ii) Taramani Parakh Vs. State of Madhya
Pradesh and others, reported in (2015) 11 SCC 260:

“10. Law relating to quashing is well settled. If the
allegations are absurd or do not made out any case
5

or if it can be held that there is abuse of process of
law, the proceedings can be quashed but if there is
a triable case the Court does not go into reliability
or otherwise of the version or the counter version.”

(iii) Rishipal Singh Vs. State of Uttar
Pradesh and Another, reported in (2014) 7 SCC 215:

“13. What emerges from the above judgments is
that when a prosecution at the initial stage is asked
to be quashed, the tests to be applied by the Court
is as to whether the uncontroverted allegations as
made in the complaint prima facie establish the
case. The Courts have to see whether the
continuation of the complaint amounts to abuse of
process of law and whether continuation of the
criminal proceeding results in miscarriage of justice
or when the Court comes to a conclusion that
quashing these proceedings would otherwise serve
the ends of justice, then the Court can exercise the
power under Section 482 Cr.P.C. While exercising
the power under the provision, the Courts have to
only look at the uncontroverted allegation in the
complaint whether prima facie discloses an offence
or not, but it should not convert itself to that of a
trial Court and dwell into the disputed questions of
fact.”

6. While hearing the petition under Section 482
Cr.P.C. for quashing the proceedings of trial Court, the
High Court is required to be very careful and cautious.
The Court has to keep in mind that it cannot examine
the facts, evidence and material on record to reach to a
conclusion that the case is fit for acquittal or conviction.
High Court should leave this thing to the trial Court.
The High Court should not quash the proceedings only
on the basis of evidence of some prosecution witnesses.
Even if prosecution witnesses have not supported the
case of the prosecution, in that event also, continuance
of trial cannot be said abuse of process of the Court. By
reading the complaint, if no offence is made out, in that
event the High Court will be justified in quashing the
proceeding by exercising its power under Section 482 of
6

Cr.P.C. The Court can also interfere when Court finds
that continuance of trial will be an abuse of the process
of the Court leading to injustice. Facts of present case
do not suggest such thing.

7. In view of above discussion, the criminal
misc. application is dismissed.

(V.K. Bist, J.)
18.07.2018
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