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Shabir Khan vs State Of Himachal Pradesh & Others on 6 January, 2020

1

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

.
Cr.MMO No. 1 of 2020

Date of Decision: 6.1.2020

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Shabir Khan ………Petitioner
Versus

State of Himachal Pradesh others …….Respondents
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Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting1?

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For the Petitioner: Mr. Umesh Kanwar, Advocate.

For the Respondents: Mr. Arvind Sharma, Additional Advocate

General with Mr. Kunal Thakur, Dy.
Advocate General for the respondent­
State.

Ms. Shikha Rajta, Advocate, for

respondents No.2 and 3.
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Sandeep Sharma, J. (Oral)

By way of instant petition filed under Section 482 of

the Code of Criminal Procedure, prayer has been made on behalf of

the petitioner for quashing of FIR No.123/2015 dated 5.5.2015

under Sections 279, 337 and 338 of Indian Penal Code (for short

‘IPC’), registered with Police Station, Sunder Nagar, District
1Whether reporters of the Local papers are allowed to see the judgment?

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Mandi H.P., as well as consequent proceedings pending

adjudication in the Court of learned Additional Chief Judicial

.

Magistrate, Court No.1, Sunder Nagar, District Mandi, H.P., on

the basis of the compromise arrived inter se parties (Annexure P­

3).

2. Averments contained in the petition, which is duly

r to
supported by an affidavit, reveals that FIR sought to be quashed in

the instant proceedings, came to be lodged at the behest of

respondent No.3 (hereinafter ‘complainant’) namely, Sh. Vijay

Kumar, who alleged that on 5.5.2015 at around 8:45 AM, while he

was walking alongside the road, he saw petitioner hitting

respondent No.2 while driving rashly and negligently, as a

consequence of which, respondent No.2 fell on the road and

sustained multiple injuries.

3. After completion of investigation, police presented

challan in the Court of learned Additional Chief Judicial

Magistrate, Court No.1 Sunder Nagar, District Mandi, which is

pending adjudication. However, the fact remains that before

aforesaid proceedings could be taken to its logical end, respondents

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No.2 and 3 being complainant and injured have resolved to settle

their dispute amicably with the petitioner and as such prayer has

.

been made on behalf of the petitioner for quashing of FIR as well

as consequential proceedings.

4. On 2.1.2020, this Court while issuing notice to

respondents No.2 and 3, deemed it necessary to cause presence of

respondents No.2 and 3, so that factum with regard to the

compromise, if any, inter se parties could be ascertained. Pursuant

to aforesaid order, respondents No.2 and 3 have come present and

are being represented by Ms. Shikha Rajta, Advocate, who has

filed Power of Attorney on their behalf, which is taken on record.

5. Mr. Kunal Thakur, learned Deputy Advocate General

in terms of aforesaid order dated 2.1.2020 has also submitted

status report filed by Superintendent of Police, Mandi enclosing

therein statement of complainant as well as that of the victim.

Pursuant to aforesaid order dated 2.1.2020, complainant and

victim/respondents No.2 and 3 have come present. Since victim

Kumari Isha, respondent No.2, is a minor, her mother and

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natural guardian, namely, Kamlesh Kumari has come present

along with her.

.

6. Complainant, Vijay Kumar, stated on oath before this

Court that he of his own volition and without there being any

external pressure has come present before this Court for getting

his statement recorded. He stated that since the petitioner and

parents of victim­respondent No.2 have resolved to settle their

dispute inter se them vide compromise Annexure P­3, he has no

objection in case FIR in question lodged at his behest is quashed

and set aside. His statement is taken on record.

7. Similarly, Smt. Kamlesh Kumari, mother and natural

guardian of respondent No.2, Kumari Isha, stated on oath that

with the intervention of respectable members of the society as well

as her family members they have resolved to settle their dispute

amicably and as such she has no objection in case FIR as well as

consequential proceedings pending in the the competent Court of

law against petitioner are ordered to be quashed and set aside. Her

statement is also taken on record.

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8. Mr. Kunal Thakur, learned Deputy Advocate General

contended that though complainant has got his statement recorded

.

before this Court with regard to compromise arrived inter se

parties, but the mother of victim­respondent No.2, cannot be

allowed to enter into compromise on her behalf in the instant

proceedings. However, he stated that in case statements having

been made by complainant/respondent No.3, and mother of victim­

prosecutrix are taken into consideration, there are very bleak and

remote chances of conviction of the petitioner and as such, no

fruitful purpose would be served in case FIR as well as consequent

proceedings initiated at the behest of respondent No.3/

complainant, are allowed to sustain.

9. Since a minor child i.e. respondent No.2 suffered injury

in the alleged accident, as such question, which arises for

determination is “whether mother and natural guardian can pray

for quashment of FIR as well as consequential proceedings lodged

against petitioner­accused”. Section 320(4) clearly provides that

when the person, who would otherwise be competent to compound

an offence under this section is under the age of eighteen years or

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is an idiot or a lunatic, any person competent to contract on his

behalf may, with the permission of the court compound such

.

offence. Since minor child has fully recovered and petitioner has

entered into compromise with the mother of the victim, there

appears to be no impediment in accepting the prayer made on

behalf of the petitioner for quashing the FIR alongwith

consequential proceedings pending in the competent court of law.

10. This Court, after having carefully perused the

compromise, which has been duly executed between the parties,

sees substantial force in the prayer having been made by the

learned counsel for the petitioner that the offences in the instant

case can be ordered to be compounded.

11. Since the petition has been filed under Section 482

Cr.P.C, this Court deems it fit to consider the present petition in

the light of the judgment passed by Hon’ble Apex Court in

Narinder Singh and others versus State of Punjab and

another (2014)6 Supreme Court Cases 466, whereby Hon’ble

Apex Court has formulated guidelines for accepting the settlement

and quashing the proceedings or refusing to accept the settlement

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with direction to continue with the criminal proceedings. Perusal of

judgment referred above clearly depicts that in para 29.1, Hon’ble

.

Apex Court has returned the findings that 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 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:

29.1Power 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.

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29.2. When the parties have reached the settlement and on
that basis 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 under Section 482 Cr.P.C the

High Court is to form an opinion on either of the aforesaid
two objectives.

29.3. Such a power is not 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 offences alleged to

have been committed under special statute 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, those criminal cases having
overwhelmingly and pre­dominantly civil character,
particularly those arising out of commercial transactions

or arising out of matrimonial relationship or family
disputes 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.

29.6. Offences under Section 307 IPC would fall in the
category of heinous and serious offences and therefore is to
be generally treated as crime against the society and not
against the individual alone. However, the High Court
would not rest its decision merely because there is a
mention of Section 307 IPC in the FIR or the charge is
framed under this provision. It would be open to the High

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Court to examine as to whether incorporation of Section
307 IPC is there for the sake of it or the prosecution has
collected sufficient evidence, which if proved, would lead to
proving the charge under Section 307 IPC. For this

.

purpose, it would be open to the High Court to go by the

nature of injury sustained, whether such injury is inflicted
on the vital/delegate parts of the body, nature of weapons
used etc. Medical report in respect of injuries suffered by

the victim can generally be the guiding factor. On the basis
of this prima facie analysis, the High Court can examine
as to whether there is a strong possibility of conviction or
the chances of conviction are remote and bleak. In the
former case it can refuse to accept the settlement and

quash the criminal proceedings whereas in the later case it
would be permissible for the High Court to accept the plea
compounding the offence based on complete settlement
between the parties. At this stage, the Court can also be

swayed by the fact that the settlement between the parties

is going to result in harmony between them which may
improve their future relationship.

29.7. While deciding whether to exercise its power under
Section 482 of the Code or not, timings of settlement play a

crucial role. Those cases where the settlement is arrived at
immediately after the alleged commission of offence and
the matter is still under investigation, the High Court may

be liberal in accepting the settlement to quash the
criminal proceedings/investigation. It is because of the

reason that at this stage the investigation is still on and
even the charge sheet has not been filed. Likewise, those
cases where the charge is framed but the evidence is yet to

start or the evidence is still at infancy stage, the High
Court can show benevolence in exercising its powers
favourably, but after prima facie assessment of the
circumstances/material mentioned above. On the other
hand, where the prosecution evidence is almost complete
or after the conclusion of the evidence the matter is at the
stage of argument, normally the High Court should refrain
from exercising its power under Section 482 of the Code, as
in such cases the trial court would be in a position to
decide the case finally on merits and to come a conclusion
as to whether the offence under Section 307 IPC is
committed or not. Similarly, in those cases where the

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conviction is already recorded by the trial court and the
matter is at the appellate stage before the High Court,
mere compromise between the parties would not be a
ground to accept the same resulting in acquittal of the

.

offender who has already been convicted by the trial court.

Here charge is proved under Section 307 IPC and
conviction is already recorded of a heinous crime and,
therefore, there is no question of sparing a convict found

guilty of such a crime”.

12. The Hon’ble Apex Court in case Gian Singh v.

State of Punjab and anr. (2012) 10 SCC 303 has held that

r to
power of the High Court in quashing of the criminal proceedings

or FIR or complaint in exercise of its inherent power is distinct

and different from the power of a Criminal Court for

compounding offences under Section 320 Cr.PC. Even in the

judgment passed in Narinder Singh’s case, the Hon’ble Apex

Court has held that while exercising inherent power under Section

482 Cr.PC the Court must have due regard to the nature and

gravity of the crime and its social impact and it cautioned the

Courts not to exercise the power for quashing proceedings in

heinous and serious offences of mental depravity, murder, rape,

dacoity etc. However subsequently, the Hon’ble Apex Court in

Dimpey Gujral and Ors. vs. Union Territory through

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Administrator, UT, Chandigarh and Ors. (2013( 11 SCC 497

has also held as under:­

.

“7. In certain decisions of this Court in view of the
settlement arrived at by the parties, this Court quashed
the FIRs though some of the offences were non­
compoundable. A two Judges’ Bench of this court doubted

the correctness of those decisions. Learned Judges felt
that in those decisions, this court had permitted
compounding of non­compoundable offences. The said
issue was, therefore, referred to a larger bench.

The larger Bench in Gian Singh v. State of Punjab (2012)
10 SCC 303 considered the relevant provisions of the Code
and the judgments of this court and concluded as under:
(SCC pp. 342­43, para 61)
r 61. The position that emerges from the above

discussion can be summarised thus: the power of
the High Court in quashing a criminal proceeding
or FIR or complaint in exercise of its inherent
jurisdiction is distinct and different from the power

given to a criminal court for compounding the
offences under Section 320 of the Code. Inherent
power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with

the guideline engrafted in such power viz; (i) to
secure the ends of justice or (ii) to prevent abuse of

the process of any Court. In what cases power to
quash the criminal proceeding or complaint or
F.I.R may be exercised where the offender and

victim have settled their dispute would depend on
the facts and circumstances of each case and no
category can be prescribed. However, before exercise
of such power, the High Court must have due
regard to the nature and gravity of the crime.
Heinous and se serious impact on society. Similarly,
any compromise between the victim and offender in
relation to the offences under special statutes like
Prevention of Corruption Act or the offences
committed by public servants while working in that
capacity etc; cannot provide for any basis for

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quashing criminal proceedings involving such
offences. But the criminal cases having
overwhelmingly and pre­dominatingly civil flavour
stand on different footing for the purposes of

.

quashing, particularly the offences arising from

commercial, financial, mercantile, civil,
partnership or such like transactions or the offences
arising out of matrimony relating to dowry, etc. or

the family disputes where the wrong is basically
private or personal in nature and the parties have
resolved their entire dispute. In this category of
cases, High Court may quash criminal proceedings
if in its view, because of the compromise between the

offender and victim, the possibility of conviction is
remote and bleak and continuation of criminal case
would put accused to great oppression and
prejudice and extreme injustice would be caused to

him by not quashing the criminal case despite full

and complete settlement and compromise with the
victim. In other words, the High Court must
consider whether it would be unfair or contrary to
the interest of justice to continue with the criminal

proceeding or continuation of the criminal
proceeding would tantamount to abuse of process of
law despite settlement and compromise between the

victim and wrongdoer and whether to secure the
ends of justice, it is appropriate that criminal case

is put to an end and if the answer to the above
question(s) is in affirmative, the High Court shall
be well within its jurisdiction to quash the criminal

proceeding.” (emphasis supplied)

8. In the light of the above observations of this court in
Gian Singh, we feel that this is a case where the
continuation of criminal proceedings would tantamount to
abuse of process of law because the alleged offences are not
heinous offences showing extreme depravity nor are they
against the society. They are offences of a personal nature
and burying them would bring about peace and amity
between the two sides. In the circumstances of the case,
FIR No. 163 dated 26.10.2006 registered under Section
147, 148, 149, 323, 307, 452 and 506 of the IPC at Police
Station Sector 3, Chandigarh and all consequential

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proceedings arising there from including the final report
presented under Section 173 of the Code and charges
framed by the trial Court are hereby quashed.”

.

13. Recently Hon’ble Apex Court in its latest judgment

dated 4th October, 2017, titled as Parbatbhai Aahir @

Parbatbhai Bhimsinhbhai Karmur and others versus State

of Gujarat and Another, passed in Criminal Appeal No.1723 of

2017 arising out of SLP(Crl) No.9549 of 2016, reiterated the

principles/ parameters laid down in Narinder Singh’s case

supra for accepting the settlement and quashing the proceedings.

It would be profitable to reproduce para No. 13 to 15 of the

judgment herein:

“13. The same principle was followed in Central Bureau of

Investigation v. Maninder Singh (2016)1 SCC 389 by a
bench of two learned Judges of this Court. In that case, the

High Court had, in the exercise of its inherent power under
Section 482 quashed proceedings under Sections 420, 467, 468
and 471 read with Section 120­B of the Penal Code. While

allowing the appeal filed by the Central Bureau of
Investigation Mr Justice Dipak Misra (as the learned Chief
Justice then was) observed that the case involved allegations
of forgery of documents to embezzle the funds of the bank. In
such a situation, the fact that the dispute had been settled
with the bank would not justify a recourse to the power under
Section 482:

“…In economic offences Court must not only keep in
view that money has been paid to the bank which has
been defrauded but also the society at large. It is not a
case of simple assault or a theft of a trivial amount; but

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the offence with which we are concerned is well planned
and was committed with a deliberate design with an
eye of personal profit regardless of consequence to
the society at large. To quash the proceeding merely on

.

the ground that the accused has settled the amount

with the bank would be a misplaced sympathy. If the
prosecution against the economic offenders are not
allowed to continue, the entire community is aggrieved.”

14. In a subsequent decision in State of Tamil Nadu v

R Vasanthi Stanley (2016) 1 SCC 376, the court rejected

the submission that the first respondent was a woman “who

was following the command of her husband” and had signed
certain documents without being aware of the nature of the

fraud which was being perpetrated on the bank. Rejecting the

submission, this Court held that:

“… Lack of awareness, knowledge or intent is neither to
be considered nor accepted in economic offences. The
submission assiduously presented on gender leaves us

unimpressed. An offence under the criminal law is an
offence and it does not depend upon the gender of an
accused. True it is, there are certain provisions in Code

of Criminal Procedure relating to exercise of jurisdiction
Under Section 437, etc. therein but that altogether

pertains to a different sphere. A person committing a
murder or getting involved in a financial scam or
forgery of documents, cannot claim discharge or

acquittal on the ground of her gender as that is neither
constitutionally nor statutorily a valid argument. The
offence is gender neutral in this case. We say no more
on this score…”

“…A grave criminal offence or serious economic offence
or for that matter the offence that has the potentiality
to create a dent in the financial health of the
institutions, is not to be quashed on the ground that
there is delay in trial or the principle that when the
matter has been settled it should be quashed to avoid
the load on the system…”

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15.The broad principles which emerge from the precedents
on the subject may be summarized in the following
propositions:

.

(i) 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 recognizes and preserves

powers which inhere in the High Court;

(ii) 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
r Section 320 of the Code of Criminal Procedure, 1973.
The power to quash under Section 482 is attracted even

if the offence is non­compoundable.

(iii) In forming an opinion whether a criminal proceeding or
complaint should be quashed in 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;

(iv) While the inherent power of the High Court has a

wide ambit and plenitude it has to be exercised; (i) to
secure the ends of justice or (ii) to prevent an abuse of

the process of any court;

(v) 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;

(vi) In the exercise of the power under Section 482 and while
dealing with a plea that the dispute has bee inherent n
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

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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;

(vii) 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 in so far as the exercise of the inherent
power to quash is concerned;

(viii) Criminal cases involving offences which arise from

commercial, financial, mercantile, partnership or
similar transac mental tions with an essentially
civil flavour may in appropriate situations fall for
quashing where parties have settled the dispute;

(ix) 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

(x) There is yet an exception to the principle set out in
propositions (viii) and (ix) above. Economic offences
involving the financial and economic well­being 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.

14. It is quite apparent from the aforesaid exposition

of law that High Court has inherent power to quash criminal

proceedings even in those cases which are not compoundable,

but such power is to be exercised sparingly and with great

caution. In the judgments, referred hereinabove, Hon’ble Apex

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Court has categorically held that Court while exercising inherent

power under Section 482 Cr.P.C. must have due regard to the

.

nature and gravity of offence sought to be compounded. Hon’ble

Apex Court has though held that heinous and serious offences of

mental depravity, murder, rape, dacoity etc. cannot appropriately

be quashed though the victim or the family of the victim have

settled the dispute,but it has also observed that while exercising

its powers, 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. Hon’ble Apex Court has further held

that Court while exercising power under Section 482 Cr.P.C can

also be swayed by the fact that settlement between the parties is

going to result in harmony between them which may improve

their future relationship. Hon’ble Apex Court in its judgment

rendered in State of Tamil Nadu supra, has reiterated that

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

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18

of justice and has held that the power to quash under Section 482

is attracted even if the offence is non­compoundable. In the

.

aforesaid judgment Hon’ble Apex Court has held that while

forming an opinion whether a criminal proceedings or complaint

should be quashed in 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.

15. Consequently, in view of the averments contained in

the petition as well as the submissions having been made by the

learned counsel for the parties that the matter has been

compromised, and keeping in mind the well settled proposition of

law as well as the compromise being genuine, this Court has no

inhibition in accepting the compromise and quashing the FIR as

well as consequent proceedings pending in the competent Court

of law.

16. Accordingly, in view of the detailed discussion made

herein above as well as law laid down by the Hon’ble Apex Court,

FIR No.123/2015 dated 5.5.2015 under Sections 279 and 337 of

Indian Penal Code , registered with Police Station, Sunder Nagar,

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District Mandi H.P., as well as consequent proceedings pending

adjudication in the Court of learned Additional Chief Judicial

.

Magistrate, Sunder Nagar, District Mandi, H.P., are quashed and

set­aside and the petitioner­ accused is acquitted of the charge

framed against him.

The present petition is allowed in the aforesaid terms.

Pending application(s), if any, also stands disposed of.

6th January, 2020 (Sandeep Sharma),
(Guleria) Judge.

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