Md. Riyazuddin vs State & Anr
2011 Latest Caselaw 4568 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Delivered on : September 16th 2011

+                   CRL.M.C. 3108/2011

       MD. RIYAZUDDIN                                 ..... Petitioner
                                 Through : Mr.Anurag Ahluwalia &
                                 Mr.Subhash Tanwar, Advs.

                    versus

       STATE & ANR                                  ..... Respondent
                            Through : Ms.Rajdipa Behura, APP for
                            State/ Respondent No.1.
                            Mr.Anand Verdhan, Adv for R-2.

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 the Reporter or not?          NO
     3. Whether the judgment should be reported in the
        Digest?                                         YES

SURESH KAIT, J. (Oral)

Crl.M.A.No.11018 & 11040/2011(exemption)

Exemptions are allowed subject to just exceptions.

Criminal M.As. stand disposed of.

CRL.M.C. 3108/2011

1. Issue notice. Ms.Rajdipa Behura, learned APP for State/

Respondent No.1 and Mr.Anand Verdhan, Adv for respondent

No.2 accepts notice.

2. Learned counsel for petitioner submits that vide FIR

No.158/2010 dated 22.07.2010 a case under Section 307

Indian Penal Code, 1860 was registered at police station

Jaitpur on the complaint of respondent No.2, against the

petitioner. Petitioner in custody since then.

3. Learned counsel for petitioner further submits that

respondent No.2 Smt.Salma, w/o Mohammad Asim, is

personally present in the Court today with learned counsel

Mr.Anand Verdhan who has duly identified her. Additionally,

photograph of respondent No.2 has been placed at page No.41

and the photocopy of her identity card issued by the Election

Commission of India stands in her name bearing

No.FYW1024496 is on the record.

4. Respondent No.2 submitted that she has settled all the

disputes with the petitioner qua the present FIR and she does

not wish to pursue present case against the petitioner. She

further submits that petitioner is also residing in the same

locality where she is residing and both are immediate

neighbourers. Petitioner is stated to be a bangle seller and

having five daughters and one son. In view of compassion and

just to give quiets to this case, present case FIR should be

quashed and the feeling of enmity between the parties should

be ended. She further stated that all the expenses for her

treatment were borne by the petitioner himself and according

to her, petitioner is not a man of well-means, therefore, she

does not wish to claim any amount in lieu of compensation

from him.

5. Ms.Rajdipa Behura, learned APP for State submits that

present case is under Section 307 Indian Penal Code, 1860

which is 'non-compoundable' and the injury is inflicted on the

vital part of the body i.e. upper portion of the neck. The doctor

on the MLC has opined the injuries as dangerous

6. She further submits that offence in the present case is

punishable upto life imprisonment as provided in the statute

and relied upon the decision of the Supreme Court in Gian

Singh Vs. State of Punjab & Anr. in SLP (Crl.)

No.8989/2010.

7. Learned counsel for petitioner has relied upon the

decision of this Court in Gurcharan Singh Vs. State,

Manu/DE/0663/1998 wherein it is held as under:-

"The petitioner hired a farm house of one Arjun Sayal, the Complainant for two days for holding a wedding reception of his son. It was agreed that the petitioner would pay a consolidated amount of Rs.2,50,000/- for holding the reception. The amount was inclusive of the food provided at the wedding reception on the 25th and 26th of November, 1997. The complainant who is respondent No. 2 in this petition admittedly received Rs.1,10,000/- in advance. The balance amount of Rs.1,40,000/- was to be paid after the wedding reception and according to their understanding. When the reception was about to finish, at that point of time around 2:00 a.m. the complainant demanded the balance amount from the petitioner. The petitioner did not like the complainant's demanding the amount because at

that time he was enjoying the wedding reception with his friends. The petitioner nodded his head and mentioned that the balance amount will be paid after the reception. The complainant again demanded the amount after an hour at 3:00 a.m., when practically the reception was over and only 4 to 5 persons were left. The petitioner got enraged and started abusing the complainant and said "I will pay your amount just now and he asked one person who was standing nearby to pay the amount. Incidentally, at that time the petitioner was holding a 12 bore gun in his hand. On repeated demands of the remaining outstanding amount, the petitioner got infuriated and to frighten the complainant, the petitioner fired a shot in the air and again he gave the impression as if he was loading the second cartridge to hit the complainant. The complainant felt that probably the petitioner was loading the same with a view to fire at the complainant. The complainant ran from the scene. However, the petitioner did not fire the second cartridge."

In the present case, no injury was caused, however the

FIR was allowed to be quashed by this court on a petition filed

under Section 482 Cr. P.C.

8. Learned counsel for petitioner has further relied upon

another decision of this Court in Mahinder Pal Singh & Ors

Vs. State and Anr; Manu/DE/9657/2007 in para No.2 is

held as under:-

"When the complainant and his family members were sleeping, the accused persons pounced upon them and started beating them. Somehow, the complainant got rid of petitioner No.1 and his father, who were allegedly trying to strangulate the complainant and he rushed to the police station after which the accused persons were taken to the police station."

In the present case also, the FIR under Section

147/149/452/323/506 Indian Penal Code, 1860 was allowed

to be quashed on a petition under Section 482 Cr. P.C.

9. Further he relied upon the decision of this case in Karan

Gandhi Vs. The State, NCT of Delhi and Anr.

Manu/DE/8819/2007 wherein FIR was also quashed by this

Court and it is held as under:-

".... some discussion on the telephone took place and from where they took an auto for a park in

Dwarka. In the park, having come to the conclusion that they did not have a future together, they formed a part for dying together. Karan produced a gun which he had brought with him and Preeti shot herself with the gun on her forehead and handed over the gun to Karan. The latter then shot himself on the head and thereafter shot Preeti on her head. Three pellets were recovered, one from the head of the petitioner Karan Gandhi and two from the head of Preeti Goyal. Preeti was rendered unconscious and when she came to her senses, she found herself in a nursing home. On her statement made to Sub-Inspector Sunil Kumar, First Information Report No.518/2006 was registered against the petitioner and her under Sections 307/309/34 Indian Penal Code, 1860 at police station Dwarka."

10. Learned counsel for petitioner further submits that during

trial respondent No.2 appeared as PW2 before the learned Trial

Court and has deposed on 04.02.2011 that the accused is her

neighbour and she wanted to leave peacefully. The accused is

having small kids and she has pardoned him and do not want

to pursue this case against him further. Respondent No.2 has

also filed her affidavit to this effect which is annexure 'D' at

page No.36 of the petition.

11. On earlier occasion, this Court has quashed the FIRs

under Section 307/308 Indian Penal Code, 1860 considering

the view taken by the Division Bench decision of the Bombay

High Court in Nari Motiram Hira Vs. Avinash Balkrishnan

& Anr. in Crl.W.P.No.995 of 2010 decided on

03.02.2011.

12. I note that in Gian Singh (supra) 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 Inestigation and Anr.

(2008) 9 SCC 677 and Manoj Sharma Vs, State & Ors.

(2008) 16 SCC 1 to the larger Bench for re-consideration

whether the abovesaid three decisions were decided correctly

or not.

13. I further note that as on date, since B.S. Joshi (supra);

Nikhil Merchant (supra) and Manoj Sharma (supra) have

not been altered or reviewed by the larger Bench of the

Supreme Court, hence all three dictums still hold the field and

are law of the land. Therefore, I deem it proper to quash the

FIR in the instant petition.

14. In view of the above discussion, as the respondent No.2

is not interested in prosecution of the case against the

petitioner, FIR No.158/2010 under Section 307 Indian Penal

Code, 1860 registered at police station Jaitpur against the

petitioner and the proceedings arising out thereto are hereby

quashed.

15. Though, the respondent has come forward to help the

petitioner, however, for the substantial justice to the

respondent No.2, I direct the petitioner to atleast pay some

compensation to respondent No.2. Accordingly, I direct the

petitioner to pay an amount of Rs.50,000/- by way of pay order

to respondent No.2 within a period of two months from the

date of his release.

16. Consequently, the Jail authorities are directed to

release the petitioner forthwith as the present case FIR has

been quashed. Copy of the order be also sent to the Jail

authorities for compliance.

17. Accordingly, Criminal M.C.No.3108/2011 is allowed

in above terms.

18. Copy of order be given dasti under signature of the

Court Master to learned counsel for petitioner.

SURESH KAIT, J September 16th 2011 Mk