Lal Mohammad vs State of Uttarakhand

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.â€​

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 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.

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 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.

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.

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 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.â€​

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

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

(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.â€​

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 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.

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