Alok Sharma & Anr vs State & Anr
2011 Latest Caselaw 5487 Del

$~11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CRL.MC No.3297/2011

%             Judgment delivered on:15th November, 2011


        ALOK SHARMA & ANR                ..... Petitioners
                     Through : Mr. Ram Lal, Adv.

                   versus


        STATE & ANR                      ..... Respondents
                        Through : Ms. Rajdipa Behura, APP for
                        the State

CORAM:

        HON'BLE MR. JUSTICE SURESH KAIT


     1. Whether the Reporters of local papers
        may be allowed to see the judgment?              NO
     2. To be referred to Reporter or not?               NO
     3. Whether the judgment should be reported
        in the Digest?                                   NO

SURESH KAIT, J. (Oral)

1. On 30.09.2011 the following order was passed:-

"1. Issue notice.

2. Ms.Rajdipa Behura, learned APP for State/respondent No.1 and respondent No.2 who is appearing in person accepts notice.

3. Learned counsel for petitioners submits that vide compromise dated 02.07.2011, petitioners

and respondent No.2 have amicably settled all the issues qua the aforementioned FIR and even mutually resolved all the differences.

4. Vide instant petition, they have sought quashing of the FIR in question.

5. Respondent No.2 present in person submits that he has no objection, if the present FIR is quashed, in view of the compromise dated 02.07.2011.

6. I note that vide FIR No.265/2009 dated 31.07.2009 a case under Section 186/332/353/34 Indian Penal Code was registered against the petitioners on the complaint of respondent No.2 at police station Seemapuri, Delhi.

7. Respondent No.2 was on government duty being employed in MCD and stopped the petitioner Nos.1 & 2 - the employees of BSES, who were laying electric cable after cutting the road without any permission. Respondent No.2 submits that his designation is Beldaar, however he was officiating as Supervisor at the relevant time. The Executive Engineer Mr.A. K. Dixit asked him to visit the spot and stop the employees of BSES from cutting the road. He requested them; a linemen of BSES Saleem and Alok Kumar, who were doing the road cutting work beaten him and latter took the respondent No.2 to the office of BSES where also he was beaten.

8. Petitioners and respondent No.2 are all government employees. Even at the time of the incident, they were discharging their government duties. The scuffle took place while working on government duty. Though, respondent No.2 got lodged the complaint; however MCD is his employer. Therefore, since the respondent No.2 is a „C‟ Group employee; as such, the competent authority has not authorized him to withdraw the

present complaint."

2. On 30.09.2011 the complainant was not having any

authority from the senior officers of the Department. Ld.

Counsel for the petitioner submits, Shri Himanshu Shekhar,

Executive Engineer (Maintenance Division-I), Shahdara (9)

Zone, MCD vide communication dated 09.11.2011 has

submitted that the office of the Executive Engineer, SDN

Hospital, Shahdara, Delhi has no objection if the compromise

between the parties is allowed.

3. Ld. APP for the State submits that Section 186/332/353

are non-compoundable. She has referred to the judgment of

Hon‟ble Supreme Court in Gian Singh Vs. State of Punjab

& Anr. in SLP (Crl.) No.8989/2010 wherein the Division

Bench of the Supreme Court has referred three earlier

decisions, viz, B.S. Joshi V. State of Haryana (2003) 4

SCC 675, Nikhil Merchant v. Central Bureau of

Investigation and Anr. (2008) 9 SCC 677 and Manoj

Sharma Vs, State & Ors. (2008) 16 SCC 1, to a larger

Bench for re-consideration whether the abovesaid three

decisions were decided correctly or not.

4. Previously, I have taken the view on the basis of the

decision taken by the Division Bench of Mumbai High Court

in Nari Motiram Hira Vs. Avinash Balkrishnan & Anr. in

Crl.W.P.No.995/2010 decided on 03.02.2011 whereby

the Division Bench of Mumbai High Court has permitted for

compounding of the offences under Section 452/324 of

Indian Penal Code which were „non-compoundable‟ as per

Section 320 Cr. P.C. Therefore, I feel that unless and until,

the decisions which have been referred to above, are set

aside or altered by the larger Bench of the Supreme Court,

all the above three decisions hold the field and are binding

precedents.

5. Alternatively, Ld.APP submits that if the Court is

inclined to quash the aforesaid FIR, then some costs may be

imposed on the petitioners for substantial justice.

6. In the above circumstances, I quash the aforesaid FIR

No.265/2009 dated 31.07.2009 under Section

186/332/353/34 of the Indian Penal Code registered against

the petitioners on the complaint of respondent No.2 at police

station Seemapuri, Delhi and all the proceedings emanating

therefrom.

7. The petitioners are employees of BSES Yamuna Power

Limited. Keeping in view their financial status, I refrain from

imposing costs on them.

8. CRL. M.C. 3297/2011 is allowed and disposed of

accordingly.

SURESH KAIT, J

NOVEMBER 15, 2011 RS