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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MM(O) No. 324 of 2018
.
Decided on : 27.09.2018
_
Mohd. Akram ……Petitioner
Versus
State of H.P. and others …..Respondents
Coram:
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?__
For the petitioner : Mr. M.A. Khan, Sr. Advocate
with Mr. Naresh K. Sharma,
Advocate
For the respondents : Ms. Rameeta Kumari,
Additional Advocate General
with Mr.R.R.Rahi, Deputy
Advocate General for
respondent No.1, Mr. Pankaj
Thakur, Advocate, for
respondent No.2, Mr. V.B.
Verma, Central Government
Counsel for respondents No. 3
and 4.
Justice Vivek Singh Thakur, Judge (Oral)
This petition has been filed for quashing of
FIR No. 410 of 2016 dated 24.12.2016 under Section
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354 read with Section 34 IPC registered at Police Station
Poanta Sahib, District Sirmaur.
.
2. In FIR three accused namely Sajid Ali son of
Shri Anwar Ali, Arun Khan son of Hasna and
Mohd.Akram son of Shahid Ali have been named who
were riding on the motorcycle being driven by Sajid Ali
on the date of incident. Quashing of FIR and
proceedings, in pursuant thereto, against the petitioner
have been sought to be quashed on the ground that
petitioner has not committed any offence and he has not
outraged the modesty of complainant, but the said
offence was committed by his friends only and the
petitioner is an innocent person and an affidavit of
complainant/respondent No. 2 Kulvinder Kaur has been
placed on record wherein she has stated that petitioner
had not outraged her modesty and she does not want to
get an innocent person punished.
3. A compromise has also been placed on record
signed between petitioner Mohd. Akram and complainant
Kulvinder Kaur wherein also it is stated that Mohd.
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Akram had not committed the offence and his name was
included in FIR at the instance of other two accused.
.
4. On issuance of notice, respondent
No.2/complainant Kulvinder Kaur had appeared in
Court on 27.7.2018 on which date her statement was
recorded. Statement of Mohd. Akram has also been
recorded on 27.7.2018. In her deposition in Court,
complainant has categorically stated that when she was
walking on the road side, a motorcyclist Sajid Ali
brought the motorcycle near to her and after slowing
down the same, he touched her breast with his hand and
Arun Khan also did so, whereupon she cried and
motorcycle was stopped by the persons at a some
distance and Sajid Ali was overpowered on the spot,
whereas Arun Khan and Mohd. Akram/petitioner had
fled from the spot. She has further stated that she had
lodged the FIR to this extent only and the said facts have
rightly been recorded in FIR, wherein there is no
allegation against Mohd. Akram nor did he had
assaulted her in any manner, but, he was sitting on
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motorcycle with Sajid Ali and Arun Khan as a last pillion
rider on the motorcycle and therefore his name also finds
.
mention in FIR. She has categorically stated that
petitioner Mohd. Akram has not teased or assaulted her
in any manner and thus she felt that he is innocent and
even may not be knowing about the intention of other
two companions to commit the offence. She has
endorsed the execution of her affidavit Annexure P3 and
signing of compromise Annexure P4 by her with her free
will and consent without any fear or coercion.
5. Petitioner Mohd. Akram in his deposition on
oath has stated that on the day of incident i.e.
24.12.2016 at about 6/6.30 PM he was going to attend
the marriage in village Bata Mandi and on the way, Sajid
Ali and Arun Khan riding on the motorcycle met him in
the village and on their asking, he disclosed that he was
going to attend the marriage, whereupon they asked him
to join them as they were also going to attend the same
marriage and resultantly, he accompanied them on the
bike being driven by Sajid Ali and when they reached
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Bhungarni bus stop, Sajid Ali had touched the breast of
complainant with his hand and Arun Khan also did so,
.
whereupon complainant raised alarm and at a short
distance, Sajid Ali was overpowered and he and Arun
Khan fled from the spot. He further submits that he
neither intended to commit the offence nor he had
assaulted or touched the body of complainant nor he
had joined them for doing so, but had joined them on
their asking and took lift on the bike of Sajid Ali.
6. 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
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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. 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.
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7. The Apex Court, in case Narinder Singh and
Ors. Vs. State of Punjab and Ors. (2014) 6 SCC 466,
.
has sum 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.
8. No doubt Section 354 of IPC is not
compoundable under Section 320 Cr. P.C. However, as
explained by Hon’ble Supreme Court in Gian Singh’s
and Narinder Singh’s cases supra, power of High Court
under Section 482 CrPC 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, it was
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
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compoundable where parties have settled the matter
between themselves.
.
9. On perusal of FIR as well as deposition of
complainant Kulvinder Kaur on oath in this Court, it is
evident that even the proceedings against the petitioner
are continued in the trial Court and no fruitful purpose
shall be served as complainant has categorically stated
that Mohd. Akram had not committed any offence
against her and in FIR she has not named him as a
culprit but a person riding on the motorcycle as a third
person. Though the offence under Section 354 IPC is a
heinous crime against the women, but in present case, it
is exfacie evident that petitioner was not involved in the
commission of offence, but it was Sajid Ali and Arun
Khan who had committed the offence, therefore, it is a fit
case for interference by this Court under Section 482
Cr.P.C. qua the petitioner only.
10. Accordingly FIR No. 410 of 2016 registered in
Police Station Paonta Sahib under Section 354 read with
Section 34 IPC and consequential proceedings in
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pursuant thereto pending in the Court of learned
Judicial Magistrate 1st Class, Paonta Sahib are set aside
.
and quashed qua petitioner only.
11. Needless to say that proceedings against two
other accused Sajid Ali and Arun Khan pending before
learned Judicial Magistrate 1st Class, Paonta Sahib shall
be completed in accordance with law. It is made clear
that observations made in this petition are only qua
Mohd. Akram and not to be read and considered in
favour of Sajid Ali and Arun Khan in any manner. Their
role in the commission of offence is to be decided on its
own merits in accordance with law.
12. Petition stands disposed of including all
pending miscellaneous application(s), if any. Dasti copy
on usual terms.
(Vivek Singh Thakur)
Judge
September 27, 2018
*ms*
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