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[Cites 25, Cited by 37]

Himachal Pradesh High Court

Santosh Kumar & Another vs State Of H.P. & Another on 31 March, 2023

Author: Virender Singh

Bench: Virender Singh

1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 22 of 2023 Reserved on: 17.03.2023 .

Decided on 31.03.2023 Santosh Kumar & Another ... Petitioners Versus State of H.P. & Another ... Respondents Coram The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.

For the petitioners : Mr. Amit Kumar Dhumal & Ms. Richa Thakur, Advocates.

For respondents : Mr. J.S. Guleria, Mr. Sumit Sharma, Mr. Rohit Sharma and Ms. Priyanka Chauhan, Deputy Advocate Generals for respondent No.1.

Mr. Tarun K. Sharma, Advocate vice Mr. Prashant Sharma, Advocate, for respondent No.2.

_________________________________________________________ Virender Singh, Judge.

The present petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC') has been filed by the petitioners, with a request to quash FIR No.87, dated 20.09.2020, registered under Sections 363 and 376 of Indian Penal Code (hereinafter referred to as the 'IPC') and Section 4 of the Protection of 1 Whether reporters of Local Papers may be allowed to see the judgment?

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Children from Sexual Offences Act, 2012, (hereinafter referred to as the 'POCSO Act') with Police Station Reckong Peo, District Kinnaur H.P., .

alongwith the consequential proceedings thereto i.e. criminal case, titled as State versus Santosh Kumar, pending adjudication in the Court of learned Special Judge, Kinnaur at Rampur, District Shimla, H.P. (hereinafter referred to as the trial Court).

2. The quashing of FIR has been sought on the basis of compromise between the parties. Interestingly, the petition has jointly been filed by the petitioners, who is accused (petitioner No.1) as well as the child victim (petitioner No.2) in the said case. The person, who has put the criminal machinery into motion by lodging the FIR, in question, has been arrayed as respondent No.2 in this case.

3. The case set-up by the petitioners, in the petition, is that respondents No.2 had lodged the FIR in question, with Police Station Reckong Peo, District Kinnaur, H.P., alleging therein that the child victim (petitioner No.2) had gone out from the house on 19.09.2020 in order to appear in the 10th class examination, but did not return and then efforts to trace her were made.

4. On 20.09.2020, petitioner No.2 (child victim) came back home and later on, it was transpired that the petitioner No.1 allegedly took her to Rampur under the pretext of marriage and thereafter, dropped her at home on 20.09.2020.

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5. On the basis of the above facts, the police registered the FIR and criminal machinery swung into motion.

.

6. After the completion of the investigation, the police filed the final report, under Section 173 (2) Cr.P.C., disclosing therein that during the investigation, accused took the child victim (petitioner No.2) for solemnization of marriage and they stayed in hotel, upon which, the child victim was taken to the doctor, for her medical examination.

7. During the investigation, the child victim made a statement to the police that the accused had ravished her on the pretext of marriage, upon which, provisions of Section 376 IPC and Section 4 of POCSO Act, were added, in this case. Thereafter, the child victim was produced before the Court for recording her statement under Section 154 of Cr.P.C.

8. On all these submissions, the police filed the challan under Sections 363, 376 of IPC readwith Section 4 of the POCSO Act, against the accused(petitioner No.1).

9. It is the further case of the petitioners that during the pendency of the proceedings before the trial Court, a compromise has been effected between petitioner No.1 and complainant i.e. respondent No.2 and petitioners have married with each other and out of the said wedlock, two children have born out.

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10. It is the further case of the petitioners, as set up in the petition, that petitioner No.1 has solemnized his second marriage with .

petitioner No.2, as per the custom and rituals prevailing in District Kinnaur and relying upon the 'Wazib-UI-Arz', it has been pleaded that the marriage of petitioner No.1 with petitioner No.2 is valid and legal.

11. Relying upon the decision of Hon'ble Apex Court in Narinder Singh & others versus State of Punjab and another, (2014) 6 Supreme Court Cases 466, a prayer has been made to do the substantial justice, by accepting the petition, in which a prayer has been made to quash the FIR, as well as, proceedings resultant thereto.

Alongwith the petition, a compromise deed, Annexure P-2 has also been annexed. The said compromise has taken place between petitioner No.1 (accused) and respondent No.2 (complainant). In the compromise, factum of marriage between petitioner No.1 and petitioner No.2 has also been mentioned, which had taken place on 12.02.2021.

The 'Wazib-UI-Arz' of village Puh, District Kinnaur has also been annexed with the petition.

12. On all these submissions, a prayer has been made to accept the petition.

13. When put on notice, only the State has contested the petition by filing the reply. In the reply, the factual position with regard to the registration of FIR on the complaint of respondent No.2, as well as, ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 5 submission of report, under Section 173 of Cr.P.C., has not been disputed.

.

14. It is the specific stand of the State that petitioner No.1 has already been married with one lady Smt. Anita Kumari. It has also been asserted in the reply that in the 'Wazib-UI-Arz', as relied upon the petitioners, there is no clear cut clarification regarding recognizing the second marriage. According to the stand taken by the State, the 'Wazib-UI-Arz', rather, speaks only regarding the share of the progeny of more than one marriage. Alongwith the reply, copy of the Parivar Register, which has been issued by the Secretary, Gram Panchayat, Puh, District Kinnaur on 02.02.2023 has also been annexed.

15. On all these submissions, a prayer has been made to dismiss the petition.

16. The petitioners are before this Court, in a petition, under Section 482 of Cr.P.C., for quashing of FIR, as well as, the proceedings resultant thereto, on the basis of the marriage of petitioner No.1 with petitioner No.2, as well as, the compromise, which had allegedly taken place between petitioner No.1 and respondent No.2-complainant.

Petitioner No.1 has been named as accused in the said FIR, which has also been registered under Section 4 of POCSO Act. The petitioner No.2 is the child victim, whose date of birth has been mentioned in the report of under Section 173(2) of Cr.P.C. as 03.01.2004. Meaning ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 6 thereby, at that time, her age was 16 years and eight months. She thus, comes within the definition of child, as defined under Section 2(d) .

of the POCSO Act.

17. The legislature, in its wisdom, has enacted the POCSO Act, with an object to reduce the Child Abuse and Protection of Children from Sexual Offences,

18. The Hon'ble Apex Court in a case, titled as Alakh Alok Srivastava versus Union of India and others 2018(7) SCALE 88 has elaborately explained the scope and object of POCSO Act. Relevant paras 10 to 12, 19 and 20 of the judgment are reproduced as under:-

"10.The POCSO Act has been legislated keeping in view the fundamental concept under Article 15 of the Constitution that empowers the State to make special provisions for children and also Article 39(f) which provides that the State shall in particular direct its policy towards securing that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The Statement of Objects and Reasons of the Act indicate the focus for reduction of child abuse and protection of children from the offences of sexual assault, sexual harassment and pornography, etc. The relevant part of the Statement of Objects and Reasons of the POCSO ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 7 Act is extracted below:-
"3. The date collected by the National Crime Records Bureau shows that there has been .
increase in cases of sexual offences against children. This is corroborated by the 'Study on Child Abuse: India 2007' conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided for nor are they adequately penalized. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences Against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.
4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process incorporating child friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences."

11. In this context, it is apposite to reproduce the long Preamble of the POCSO Act. It is as follows:-

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"An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial .
of such offences and for matters connected therewith or incidental thereto.
Whereas clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;
And whereas, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;
And whereas it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;
And whereas it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;
And whereas the State parties to the Convention on the Rights of the Child are required to ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 9 undertake all appropriate national, bilateral and multilateral measures to prevent -
(a) the inducement or coercion of a child to engage .
in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials;

And whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed."

12. In Eera through Dr. Manjula Krippendorf v. State (NCT of Delhi) and another1, one of us (Dipak Misra, J), dwelling upon the purpose of the Statement of Objects and Reasons and the Preamble of the POCSO Act, observed:-

"20. ... the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child.
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There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of .
objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing childfriendly procedure.
Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act".

19. Speaking about the child, a three-Judge Bench in M.C. Mehta v. State of T.N. and others2 opined that:-

"... "child is the father of man". To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned."

20. In Supreme Court Women Lawyers Association ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 11 (SCWLA) v. Union of India and another3, this Court has observed:-

.
"In the case at hand, we are concerned with the rape committed on a girl child. As has been urged before us that such crimes are rampant for unfathomable reasons and it is the obligation of the law and law-makers to cultivate respect for the children and especially the girl children who are treated with such barbarity and savageness as indicated earlier. The learned Senior Counsel appearing for the petitioner has emphasised on the obtaining horrendous and repulsive situation."

Alice Miller, a Swiss psychologist, speaking about child abuse has said:-

"Child abuse damages a person for life and that damage is in no way diminished by the ignorance of the perpetrator. It is only with the uncovering of the complete truth as it affects all those involved that a genuinely viable solution can be found to the dangers of child abuse."

19. Similarly, in a recent decision in Criminal Appeal No.1874 of 2022, titled as State of Maharashtra and another versus Dr. Maroti S/o Kashinath Pimpalkar, decided on 2nd November, 2022, the Hon'ble Apex Court has again discussed the object of POCSO Act.

Relevant para 10 of the judgment is reproduced as under:-

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"10. Having made such a short survey on authorities on the exercise of power under Section 482 Cr.P.C. as above, we .
will now refer to the object and purposes of the POCSO Act. Article 15 of the Constitution, inter alia confers powers upon the State to make special provisions for children and Article 39 (f) provides not only that the State shall direct its policy towards securing that the children are given opportunities to develop in a healthy manner and in conditions of freedom and dignity but also to ensure that their childhood and youth are protected against exploitation and against moral and material abandonment. Recognising the constitutional obligation and keeping in view the fundamental concept under Article 15 of the Constitution and also realizing that sexual offences against children are not adequately addressed by the existing laws, POCSO Act was enacted.
The provisions thereunder would reveal that it also aims to ensure that such offenders are not spared and should be properly booked."

20. If, the facts and circumstances of the present case, are considered in the light of the above decisions, then, there is no hesitation for this Court to hold that in case, the alleged settlement, which has been arrived at between the parties, is accepted, then, this would defeat the object and spirit behind the legislation of POCSO.

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21. The alleged compromise between petitioner No.1 and respondent No.2, who is complainant, in this case, is inconsequential, .

as the role and position of the complainant, in such cases, has elaborately been discussed by the Hon'ble Apex Court, in a case titled as Daxaben versus the State of Gujarat and others reported as (2022) 11 SCALE 329. Para 40 of the judgment is reproduced as under:-

"40. In Criminal jurisprudence, the position of the complainant is only that of the informant. Once an FIR and/or criminal complaint is lodged and a criminal case is started by the State. It becomes a matter between the State and the accused. The State has a duty to ensure that law and other is maintained in society. It is for the State to prosecute offenders. In case of grave and serious non-compoundable offences which impact society, the informant and/or complainant only has the right of hearing, to the extent of ensuring that justice is done by conviction and punishment of the offender. An informant has no right in law to withdraw the complaint of a non-compoundable offence of a grave, serious and/or heinous nature, which impacts society".

22. In view of the above decision, the role of the complainant comes to an end after putting the criminal machinery into motion by informing the police. Such heinous offences are always against State and the private party cannot compromise the matter. Crime never dies and crime is always against the State, hence, no benefit could be ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 14 derived by the petitioners, in the present case, on the basis of the alleged compromise arrived at between the petitioner No.1 and .

respondent No.2.

23. In such type of heinous offences, the endeavour of the Court should be to determine the truth of the allegations, which have been levelled by the complainant, child victim as well as the witnesses, whose statements- have been recorded by the police. Since the offences, as mentioned in the FIR in question, are against the society, as such, the proceedings should be continued enabling the Court of competent jurisdiction to find the truth on the basis of the evidence, so led during the trial. The accused may be acquitted, if the charges are not proved or may be convicted, if the learned trial Court finds the evidence, so adduced, is confidence inspiring.

24. Accepting such settlement would also encourage the other criminals, involved in such type of heinous offences, to indulge in such type of activities, to enter into the compromise with the complainant or the child victim with the ulterior motive to defeat the object of the legislature for enacting this special statue, like POCSO, which has overriding effect over other laws, as this act is in addition, not in derogation of any other law.

25. The present proceedings are under Section 482 Cr.P.C., and the powers under Section 482 Cr.P.C., should be exercised in ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 15 rarest of the rare cases and not, on the basis of the alleged compromise in heinous offences.

.

26. The Hon'ble Apex Court in the case, titled as State of Haryana versus Bhajan Lal and others reported as (1992) Suppl.1, SCC 335, has elaborately discussed the powers of the Courts under Section 482 of Cr.P.C. Para 103 of the judgment is reproduced as under:-

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

27. The Hon'ble Apex Court in a case, titled as Gian Singh versus State of Punjab reported as (2012) 10 SCC 303 has discussed the powers of the Court under Section 482 Cr.P.C., in comparison to the provisions of Section 320 Cr.P.C., and the difference between the two provisions has also been elaborately discussed. Relevant Para of the said judgment is reproduced as under:-

"58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 16 and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and .
justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 17 criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not .
quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.

28. The quashing of the FIR in non-compoundable cases has been discussed by the Hon'ble Apex Court in a case titled as Narinder Singh and others versus State of Punjab and another, reported as (2014) 6 Supreme Court Cases 466, after considering all the earlier decisions. Relevant para 29 of the judgment is reproduced 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.
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However, this power is to be exercised sparingly and with caution.

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 statue 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. In a decision titled as State of Madhya Pradesh versus Laxmi Narayan and others, reported as (2019) 5 SCC 688, three Judges' Bench of Hon'ble Apex Court has discussed the scope of the Court to quash the proceedings, under Section 482 of Cr.P.C. in heinous offences. Relevant para-15 of the judgment is reproduced as under:-

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"15.1. That the power conferred under Section 482 of the Code of quash the criminal proceedings for the non- compoundable offences under Section 320 of the Code can .
be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
15.2. Such power is not to be exercised in those prosecutions which involved 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;
15.3. Similarly, such power is not to be exercised for the offences under the 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;"

30. Now, coming to the stand of the parties, as taken in the petition, qua the marriage between petitioner No.1 and petitioner No.2, the petitioners, except their pleadings, have not produced any other document to demonstrate that the marriage has been solemnized by petitioner No.1 with petitioner No.2, who is the child victim, in this case.

In para-2 of the pleadings, it has been submitted that the petitioner has solemnized marriage with each other and two children are born, out of ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 20 the said wedlock, however, no document to demonstrate the above fact has been annexed. In the compromise, Annexure P-2, it has been .

mentioned that petitioner No.2 has married with petitioner No.1 on 12.02.2021.

31. The petition has been filed before this Court on 03.01.2023, no document regarding the factum of marriage has been produced by the petitioners or respondent No.2, however, the State (respondent No.1) has placed on record the copy of Parivar Register, which has been issued on 02.02.2023 alongwith the reply. The perusal of this document shows that the factum of the alleged marriage of petitioner No.1 with petitioner No.2 has not been recorded in the Parivar Register.

Although, the name of one Anita Kumari, wife of Santosh Kumar, has been recorded as wife of petitioner No.1.

32. Even otherwise, it has not been disputed by petitioner No.1 that he has already been married. The question with regard to the marriage of petitioner No.1 with petitioner No.2 cannot be adjudicated by this Court in the present proceedings, as petitioner No.1 has made the futile attempt to justify his second marriage with petitioner No.2 on the ground of customs prevailing in the area, where he is residing. He has also annexed the 'Wazib-UI-Arz' as Annexure P-3. This 'Wazib-UI-

Arz' contains the 12 clauses. Clause 12 deals with the devolution of the property.

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33. The learned counsel appearing for the petitioners has relied upon the provisions of Clause 12 (i) and 12(iv) of the 'Wazib-UI-

.

Arz', which are reproduced as under:-

12(i) If a person is having two wives and one of the wife is having the self acquired property then, after her death, the property will devolve upon the son/daughter born from the womb of that wife.
12(iv) If a person is having the children born out of two or more wives then they will inherit the property in equal share, however, legally wedded wife will only be the wife, who has married with the said man as per the custom and rituals.

34. When the petitioners are taking the plea of custom, then it is for them to plead and prove with certainty about the custom. Even otherwise, the alleged marriage, to the considered opinion of this Court, seems to be an act of petitioner No.1 to defeat the provisions of law, especially, POCSO Act and such act should not get the approval of the Court by accepting the same.

35. Considering all these facts, petitioners are not able to make out a case for exercising the powers under Section 482 of Cr.P.C., to quash the FIR, as well as proceedings resultant thereto.

36. Consequently, petition is dismissed. The observations, made hereinabove are confined to the disposal of the present case and the learned Special Judge, Kinnaur at Rampur, District Shimla, H.P., is ::: Downloaded on - 04/04/2023 20:32:37 :::CIS 22 directed to proceed in accordance with law without being influenced by any of the observations, made by this Court.

.

All pending applications stand disposed of.







                                                   (Virender Singh)
                                                        Judge

    March 31, 2023
     (subhash)



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