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2018 DIGILAW 1738 (HP)

Mohd Akram v. State of H P

2018-09-27

VIVEK SINGH THAKUR

body2018
JUDGMENT : Vivek Singh Thakur, J. This petition has been filed for quashing of FIR No. 410 of 2016 dated 24.12.2016 under Section 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. 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 motorcycle with Sajid Ali and Arun Khan as a last pillion rider on the motorcycle and therefore his name also finds mention in FIR. Akram nor did he had assaulted her in any manner, but, he was sitting on 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 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. 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., (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 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. 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. 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 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 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 applications, if any.