Date Of Decision: 01.08.2024 vs State Of H.P. & Anr
2024 Latest Caselaw 10821 HP

Himachal Pradesh High Court

Date Of Decision: 01.08.2024 vs State Of H.P. & Anr on 1 August, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

2024:HHC:6843

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.1130 of 2022 Date of Decision: 01.08.2024

.

_______________________________________________________

Sahil .......Petitioner Versus

State of H.P. & Anr.

.....Respondents _______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.

    For the petitioner:                Mr. V.S.Chauhan, Senior Advocate, with Ms.
                              r        Bhanvi Negi, Advocate.

For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for respondent-State.

_______________________________________________________ Sandeep Sharma, Judge(oral):

By way of instant petition filed under Section 482 of Code of

Criminal Procedure, prayer has been made on behalf of the petitioner

for quashing of FIR No. 61 of 2021, dated 21.03.2021, under Section 354-

D of Indian Penal Code and Section 12 of POCSO Act, registered at Police

Station Sadar, District Bilaspur, H.P. , as well as consequent

proceedings, if any, pending adjudication in the competent court of

law.

Whether the reporters of the local papers may be allowed to see the judgment?

2024:HHC:6843

2. Precisely, the facts of the case, which may be relevant for

adjudication of the case at hand, are that respondent No. 2

.

(hereinafter to be referred to as 'complainant'), lodged FIR, sought to

be quashed, on 21.03.2021, alleging therein that her minor daughter

i.e. victim-prosecutrix (name withheld to protect her identity), aged 13

years had gone to Nalwari fair at 03:00 p.m., but she did not come

back. Complainant alleged that at 06:00 p.m. her daughter had

informed her telephonically that she is coming back, but when, she

did not turn back, complainant alongwith her husband went to Nalwari

fair to look for her daughter. At first instance Police registered a

missing report, however, on 22.03.2021, Police came to be informed

that daughter of complainant had come back. During investigation,

victim-prosecutrix disclosed to the Police that while she had gone to

Nalwari fair, at 03:00 p.m., one boy stopped her and asked her name.

She stated to the Police that though she did not disclose her name to

the boy, but told him that she comes from ITI side. She also alleged

that boy was repeatedly asking her to become his friend, but she

refused. She alleged that boy, whose name she does not know, took

her mobile number and thereafter starting making frantic calls. She

alleged that initially she switched off her phone, but after 10-15

minutes, when she turned on her phone, there were 20 missed calls

from her mother, to whom she said that she is coming back. She

2024:HHC:6843

alleged that on account of continuous stalking by the boy concerned,

she called her cousin namely Harsh, but before he reached Luhnu,

.

the boy ran away. She alleged that though she attempted to make a

call to the boy, but he did not pick up her call and thereafter she

alongwith her cousin Harsh and friends namely Kusum, Shibu, went

towards Dhaulra temple and stayed there. She alleged that as the

night had deepened, she instead of going to her house stayed at

Dhaulra temple alongwith her friends named hereinabove. Police after

recording the aforesaid statement of victim-prosecutrix under Section

161 Cr.P.C, got her statement recorded under Section 164 before the

Judicial Magistrate, wherein she narrated the same story, but

specifically named the accused as Karan. In the aforesaid

background, FIR sought to be quashed came to be instituted against

the petitioner namely Sahil, whose name allegedly came to be

disclosed to the Police by the person namely Munish, who during

investigation disclosed that his telephone was being used by his

friend namely Sahil.

3. Though challan stands filed in the competent court of law, but

before same could be taken to its logical end, petitioner has

approached this court in the instant proceedings for quashing of FIR

as well as consequent proceedings on the ground that no case much

less under Section 354-D of Indian Penal Code and Section 12 of

2024:HHC:6843

POCSO Act is made out against the petitioner and as such, trial, if

any, pursuant to FIR sought to be quashed, would amount to sheer

.

abuse of process of law.

4. Pursuant to notices issued in the instant proceedings,

respondent-State has filed reply under the signatures of

Superintendent of Police, District Bilaspur, H.P., wherein facts as

noticed hereinabove have not been disputed, rather stand admitted. It

is averred in the reply that factum with regard to involvement of the

petitioner in the case at hand stands duly established on record with

the placing of call detail report of mobile No.97362-41415 belonging

to victim-prosecutrix and mobile No. 82196-52757 belonging to

person namely Munish, who at relevant time, was staying with the

petitioner in a hostel. As per reply/status report filed by the

respondent-State, on relevant date victim-prosecutrix and person

using mobile No. 82196-52757 had talked to each other for more than

one hour, may be in different intervals.

5. Precisely, the grouse of the petitioner, as has been highlighted

in the petition and further canvassed by Mr. V.S.Chauhan, learned

Senior Counsel, duly assisted by Ms. Bhanvi Negi, Advocate, is that

neither person, who allegedly stalked and made telephonic calls to

the victim-prosecutrix never came to be identified, nor there is any

direct evidence suggestive of the fact that victim-prosecutrix had ever

2024:HHC:6843

disclosed to the Police as well as to the learned Judicial Magistrate

that boy namely Sahil stalked her and made telephone calls to her.

.

Mr. Chauhan, while making this Court peruse statements of victim-

prosecutrix recorded under Sections 161 and 164 Cr.P.C.,

vehemently argued that victim-prosecutrix herself was not aware

about the name and identity of the person, who allegedly stalked her

and made repeated calls, rather her statement itself suggests that she

did not disclose true facts to the Police as well as to the learned

Judicial Magistrate in her statement recorded under Section 146

Cr.P.C. Mr. Chauhan, learned Senior counsel, further submitted that

once it is not in dispute that mobile No. 82196-52757 does not belong

to the petitioner, rather is of the person namely Munish, police without

conducting identification parade of the petitioner could not have

lodged FIR against him. He submitted that since in the case at hand

identity of the accused is very doubtful, because as per statement

given by the victim-prosecutrix, person namely Karan had been

stalking her and making calls, it is not understood how and on what

basis name of the petitioner-Sahil came to be arraigned as an

accused in the FIR, sought to be quashed. He further submitted that

otherwise also basic ingredients of Section 354-D IPC and Section 12

of POCSO Act are totally missing and as such, no fruitful purpose

2024:HHC:6843

would be served in case, petitioner herein is put to ordeal of

protracted trial, which otherwise is likely to fail in all probabilities.

.

6. To the contrary, Mr. B.C.Verma, learned Additional Advocate

General, while praying for dismissal of the petition at hand,

vehemently argued that identity of the accused in the shape of

petitioner stands duly established on record on account of statement

made by person namely Munish, who categorically disclosed that on

the date of alleged incident, his mobile phone was being used by the

petitioner. He submitted that apart from above, victim-prosecutrix in

her statement has categorically stated that one person, whose name

she does not know, forcibly took her mobile number and started

making frantic calls. He submitted that phone calls were being

received on the mobile phone of victim-prosecutrix from the mobile

phone of Munish and at relevant time, such phone was being used by

the petitioner namely Sahil and as such, it cannot be said that identity

of the petitioner was not established prior to initiation of case against

him. He further submitted that call detail report adduced on record

clearly corroborate the version put-forth by the victim-prosecutrix that

petitioner herein besides stalking her, also harassed her by making

frantic calls. Lastly, Mr. Verma, submitted that since petitioner is

accused of her having committed heinous crime punishable under

Section 354-D IPC and Section 12 of POCSO Act, coupled with the

2024:HHC:6843

fact charge sheet stands filed in the competent Court of law, this is

not a fit case, where this Court, while exercising power under Section

.

482 Cr.P.C would like to quash the FIR, which if permitted would not

send good message to the society.

7. I have heard learned counsel of the parties and gone through

the record carefully. Record perused and returned.

8. Before ascertaining the genuineness and correctness of the

submissions and counter submissions having been made by the

learned counsel for the parties vis-à-vis prayer made in the instant

petition, this Court deems it necessary to discuss/elaborate the scope

and competence of this Court to quash the criminal proceedings while

exercising power under Section 482 of Cr.PC.

9. A three-Judge Bench of the Hon'ble Apex Court in case titled

State of Karnataka v. L. Muniswamy and others, 1977 (2) SCC 699,

held that High Court while exercising power under Section 482 Cr.PC

is entitled to quash the proceedings, if it comes to the conclusion that

allowing the proceeding to continue would be an abuse of the process

of the Court or that the ends of justice require that the proceeding

ought to be quashed.

10. Subsequently, in case titled State of Haryana and others v.

Bhajan Lal and others, 1992 Supp (1) SCC 335, the Hon'ble Apex

Court while elaborately discussing the scope and competence of High

2024:HHC:6843

Court to quash criminal proceedings under Section 482 Cr.PC laid

down certain principles governing the jurisdiction of High Court to

.

exercise its power. After passing of aforesaid judgment, issue with

regard to exercise of power under Section 482 Cr.PC, again came to

be considered by the Hon'ble Apex Court in case bearing Criminal

Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017)

titled Vineet Kumar and Ors. v. State of U.P. and Anr., wherein it has

been held that saving of the High Court's inherent powers, both in civil

and criminal matters, is designed to achieve a salutary public purpose

i.e. court proceedings ought not to be permitted to degenerate into a

weapon of harassment or persecution.

11. The Hon'ble Apex Court in Prashant Bharti v. State (NCT of

Delhi), (2013) 9 SCC 293, relying upon its earlier judgment titled as

Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330,

reiterated that High Court has inherent powers under Section 482

Cr.PC., to quash the proceedings against an accused, at the stage of

issuing process, or at the stage of committal, or even at the stage of

framing of charge, but such power must always be used with caution,

care and circumspection. In the aforesaid judgment, the Hon'ble Apex

Court concluded that while exercising its inherent jurisdiction under

Section 482 of the Cr.PC, Court exercising such power must be fully

satisfied that the material produced by the accused is such, that would

2024:HHC:6843

lead to the conclusion, that his/their defence is based on sound,

reasonable, and indubitable facts and the material adduced on record

.

itself overrule the veracity of the allegations contained in the

accusations levelled by the prosecution/complainant. Besides above,

the Hon'ble Apex Court further held that material relied upon by the

accused should be such, as would persuade a reasonable person to

dismiss and condemn the actual basis of the accusations as false. In

such a situation, the judicial conscience of the High Court would

persuade it to exercise its power under Section 482 of the Cr.P.C. to

quash such criminal proceedings, for that would prevent abuse of

process of the court, and secure the ends of justice. In the aforesaid

judgment titled as Prashant Bharti v. State (NCT of Delhi), (2013) 9

SCC 293, the Hon'ble Apex Court has held as under:-

"22. The proposition of law, pertaining to

quashing of criminal proceedings, initiated

against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has

been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)

1.

29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of

2024:HHC:6843

committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later

.

stages as well. The power vested in the High Court under

Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences,

inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent

jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that

his/their defence is based on sound, reasonable, and

indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is

such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out,

reject and discard the accusations levelled by the

prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence

should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would

2024:HHC:6843

prevent abuse of process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing

.

paragraphs, we would delineate the following steps to

determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under

Section 482 of the Cr.P.C.:-

30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the

material is of sterling and impeccable quality?

30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions

contained in the complaint, i.e., the material is such, as

would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. 30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such,

that it cannot be justifiably refuted by the prosecution/complainant?

30.4 Step four, whether proceeding with the trial would

result in an abuse of process of the court, and would not serve the ends of justice?

30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of

power vested in it under Section 482 of the Cr.P.C.

Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."

12. It is quite apparent from the bare perusal of aforesaid

judgments passed by the Hon'ble Apex Court from time to time that

where a criminal proceeding is manifestly attended with mala fide

2024:HHC:6843

and/or where the proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and with a view to

.

spite him/her due to private and personal grudge, High Court while

exercising power under Section 482 Cr.PC can proceed to quash the

proceedings.

13. Recently, the Hon'ble Apex Court in case tilted Anand Kumar

Mohatta and Anr. v. State (Government of NCT of Delhi)

Department of Home and Anr, AIR 2019 SC 210, has held that abuse

of process caused by FIR stands aggravated if the FIR has taken the

form of a charge sheet after investigation and as such, the abuse of

law or miscarriage of justice can be rectified by the court while

exercising power under Section 482 Cr.PC. The relevant paras of the

judgment are as under:

16. Even otherwise it must be remembered that the provision

invoked by the accused before the High Court is Section 482

Cr. P.C and that this Court is hearing an appeal from an order under Section 482 of Cr.P.C. Section 482 of Cr.P.C reads as follows: -

"482. Saving of inherent power of the High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can

2024:HHC:6843

exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court ( G. Sagar Suri and Anr. V. State of U.P. and Others, (2000) 2 SCC

.

636 (para 7), Umesh Kumar v. State of Andhra Pradesh and

Anr. (2013) 10 SCC 591 (para 20). Indeed, it would be a travesty to hold that proceedings initiated against a person can

be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a

charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."

14. Recently, the Hon'ble Apex Court in case titled Pramod

Suryabhan Pawar v. The State of Maharashtra and Anr, (2019) 9

SCC 608, has elaborated the scope of exercise of power under

Section 482 Cr.PC, the relevant para whereof reads as under:-

"7. Section 482 is an overriding section which saves the inherent

powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be

exercised (i) to give effect to an order under the CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to

otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and re-iterated by this Court. In Inder Mohan Goswami v State of Uttaranchal5, this Court observed.

2024:HHC:6843

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers to act ex debito justitiae to do

.

real and substantial justice, for the administration of which

alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of the court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under Section 482 CrPC though wide

have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the

advancement of justice. If any abuse of the process leading to

injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."

8. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary

powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana v Bhajan

Lal6 conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of

illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The court in Bhajan Lal noted that quashing may be appropriate where, (2007) 12 SCC 1 1992 Supp (1) SCC 335

"102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie

2024:HHC:6843

constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and

.

other materials, if any, accompanying the FIR do not disclose

a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an

order of a Magistrate within the purview of Section 155(2). ..........

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted

with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing

evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v State of

Maharashtra, 2018 SCC OnLine SC3100 ("Dhruvaram Sonar") :

"13. It is clear that for quashing proceedings, meticulous analysis of factum of taking cognizance of an offence by

the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."

15. Aforesaid law, clearly stipulates that court can exercise power

under S.482 of the Code of Criminal Procedure, to quash criminal

proceedings, in cases, where the allegations made in the first

2024:HHC:6843

information report or the complaint, even if they are taken at their face

value and accepted in their entirety do not prima facie constitute any

.

offence or make out a case against the accused.

16. Now being guided by the aforesaid proposition of law laid down

by the Hon'ble Apex Court, this Court would make an endeavor to

examine and consider the prayer made in the instant petition vis-à-vis

factual matrix of the case.

17. In the case at hand, precise allegation against the petitioner is

that he had stalked minor girl aged 13 years on the date of alleged

incident and besides this, he also troubled her by making

unnecessary calls on her mobile number. It is pertinent to take note of

the fact that at very first instance complainant lodged missing report of

her daughter i.e. victim-prosecutrix, who otherwise had been telling

her mother, on the date of alleged incident that she is coming back to

her house. She nowhere disclosed factum with regard to stalking or

frantic calls, if any, by the petitioner to her mother, rather she

informed such fact to the person namely Harsh, who happens to be

her cousin. As per the statement of victim-prosecutrix, she did not

know the name of boy, who had been stalking her, but yet she after

having reported the matter to her cousin Harsh, made a telephonic

call to the person, who had been allegedly stalking her. If the

statement of victim-prosecutrix recorded under Section 164 Cr.P.C. is

2024:HHC:6843

read in its entirety, it clearly reveals that at 03:00 p.m. on the date of

alleged incident some boy obstructed the movement of victim-

.

prosecutrix and thereafter asked for her mobile number. Though

mobile number was not disclosed by the victim-prosecutrix, but yet

boy, who had been stalking victim-prosecutrix, forcibly took her

number from her mobile phone and thereafter started making frantic

calls. If the call detail report adduced on record is perused in its

entirety, it clearly reveals that victim-prosecutrix and the person, who

had been allegedly making frantic calls, talked to each other for more

than one hour, may be in different intervals. Her statement further

reveals that after arrival of her cousin-Harsh, she made a telephonic

call on the mobile of the person, who had been stalking her, but he

did not pick up her call. In her statement under Section 164 Cr.P.C.,

she deposed that since it had become dark and she was afraid of her

father, she stayed at Dhaulra Temple along with the persons namely

Harsh, Shibhu, Kusum and one more boy. She alleged that though

person namely Harsh had not done anything wrong with her, but yet

her father unnecessarily started beating him. At this stage, it is

pertinent to take note of the fact that if person namely Harsh was the

cousin of victim-prosecutrix, where was the occasion for the father of

the victim-prosecutrix to give him beatings.

2024:HHC:6843

18. Leaving everything aside, victim-prosecutrix in her

statement recorded under Section 164 Cr.P.C categorically deposed

.

that person namely Karan had forcibly taken her mobile number and

he had stalked her, if it is so, what prevented police to search for

person namely Karan. Though, at this stage, Mr. B.C.Verma, learned

Additional Advocate General, attempted to argue that real name of

boy, who had actually stalked the victim-prosecutrix was not known to

victim-prosecutrix, but such submission of the Mr. B.C.Verma, does

not appear to be correct for the reason that had victim-prosecutrix not

known boy concerned by name, where was the occasion for her to

take the name Karan, rather, while making statement under Section

164 Cr.P.C., she could again reiterate that boy, whose name she

does not know had troubled her and action be taken against him and

not against Harsh. Petitioner herein came to be arraigned as accused

merely on the basis of statement given by the person namely Munish,

who at that relevant time was staying in a hostel alongwith petitioner.

Munish allegedly disclosed to the police that at relevant time his

phone was being used by the petitioner and not by him, if it is so, was

it not incumbent upon Investigating Officer to get the accused

identified from the victim-prosecutrix, especially when, she had

nowhere specifically mentioned the name of the petitioner herein i.e.

Sahil. Otherwise also, Police merely on the statement of Munish could

2024:HHC:6843

not straightaway register a case against the petitioner, rather attempt

should have been made to ascertain that whether it was Munish or

.

present petitioner Sahil, who was using mobile phone at that relevant

time. Since mobile in question was in the name of Munish, he was

otherwise under obligation to explain that under what circumstances

his phone was being used by the petitioner. In such like situation,

appropriate course for the police was otherwise to get the

identification of accused done from the victim-prosecutrix. Since very

identity of the accused, who allegedly stalked victim-prosecutrix is

doubtful, case of the prosecution is not likely to succeed, if permitted

to continue. At this stage, it would be apt to take note of Section 354-

D of Indian Penal Code and Section 12 of POCSO Act, which read as

under:

"Stalking.--

(1)Any man who--(i)follows a woman and contacts, or

attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such

woman; or(ii)monitors the use by a woman of the internet, email or any other form of electronic communication,commits the offence of stalking:Provided that such conduct shall not amount to stalking if the man who pursued it proves that--(i)it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or(ii)it was pursued under any law or to comply with any condition or requirement imposed by any person under

2024:HHC:6843

any law; or(iii)in the particular circumstances such conduct was reasonable and justified.(2)Whoever commits the offence of stalking shall be punished on first conviction with

.

imprisonment of either description for a term which may

extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with

imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

And

Punishment for sexual harassment.--

Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term

which may extend to three years and shall also be liable to

fine."

19. Section 354-D of Indian Penal Code provides that any

man, who follows a women or contacts, or attempts to contact such

women to foster personal interaction or monitors the woman by using

internet, email or any other form of electronic communication, shall be

deemed to have been committed offence of stalking, which shall be

punishable under Section 354-D (2). To prove the charge of stalking,

prosecution is required to prove that victim-prosecutrix was stalked or

followed by a man. However, in the instant case, that evidence is

totally missing because victim-prosecutrix categorically stated that

she was being followed or stalked by the petitioner nor there is any

other eye witness suggestive of the fact that at relevant time victim-

prosecutrix was being stalked by the petitioner, rather entire case of

2024:HHC:6843

the prosecution is based upon the statement of Munish, who simply

stated that at relevant time his phone was being used by the

.

petitioner. Even if version put-forth by the Munish is taken into

consideration, it nowhere proves stalking because telephonic calls, if

any, made by the petitioner using mobile phone of Munish, would not

amount to stalking as defined under Section 354-D of Indian Penal

Code. Aforesaid provision clearly talks about stalking that may be by

way of following victim-prosecutrix or by monitoring the women by use

of internet, email or any other form of electronic communication,

however, in the instant case, such allegations are totally missing.

20. No doubt, in the case hand, version put-forth by the

victim-prosecutrix suggests that some unknown boy obstructed her

path and he was also blowing whistles, but since victim-prosecutrix

was unable to identify the boy, such version, if any, of her may not be

sufficient to bring accused in the ambit of Section 354-D IPC. Section

12 of POCSO Act provides punishment for sexual harassment, as

noticed hereinabove, but sexual harassment has been defined under

Section 11 of POCSO Act, which reads as under:

11. Sexual harassment.--A person is said to commit sexual harassment upon a child when such person with sexual intent,--

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such

2024:HHC:6843

gesture or object or part of body shall be seen by the child; or

(ii) makes a child exhibit his body or any part of his body

.

so as it is seen by such person or any other person; or

(iii) shows any object to a child in any form or media for pornographic purposes; or

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the

involvement of the child in a sexual act; or

(vi) entices a child for pornographic purposes or gives gratification therefor.

21. Sexual harassment has been defined under Section 11 of

POCSO Act, which says that a person is said to commit sexual

harassment upon a child when such person with sexual intent utters

certain acts as defined under Section 11(1) to 11(6). Prosecution has

laid much stress upon Section 11(iv), which provides that a person,

who repeatedly or constantly follows or watches or contacts a child

either directly or through electronic, digital or any other means, would

be deemed to have committed sexual harassment in terms of Section

11 of POCSO Act. However, in the case at hand there is no evidence

that petitioner had been repeatedly or constantly following or watching

or tried to establish contact either directly or through electronic, digital

2024:HHC:6843

or any other means with the victim-prosecutrix. No doubt, call detail

report adduced on record indicates towards telephonic conversation

.

inter se victim-prosecutrix and some boy, but once mobile used by

boy belongs to person namely Munish, no case otherwise under

Section 11 of POCSO Act could have been registered against the

petitioner without being proper identification.

22. Having scanned entire evidence adduced on record by the

prosecution to prove the guilt of petitioner, this court is perusaded to

agree with Mr. V.S.Chauhan, learned Senior Counsel, that evidentiary

material adduced on record by prosecution is not sufficient to prove

the guilt of the petitioner and as such, continuance of trial, if permitted

would not only amount to sheer abuse of process of law, but that

would also result in wastage of precious time of the Court.

23. This Court for the discussion made hereinabove in detail

finds the case at hand to be a fit case, where power under Section

482 Cr.P.C. can be exercised to quash FIR as well as consequent

proceedings, which is otherwise bound to fail for the reasons stated

hereinabove. Continuation of proceedings pursuant to FIR sought to

be quashed, would not only cause unnecessary harassment to the

petitioner, but would also put him to ordeal of protracted trial, which is

otherwise likely to culminate into his acquittal.

2024:HHC:6843

24. Consequently, in view of the detailed discussion made

hereinabove as well as law taken into consideration, FIR No.61 of

.

2021, dated 21.03.2021, under Sections 354-D of Indian Penal Code and

Section 12 of POCSO Act, registered at Police Station Sadar, District

Bilaspur, H.P., as well as consequent proceedings, if any, pending

adjudication in the competent court of law are quashed and set aside.

Accused is acquitted of the charges framed against him.

25. The petition stands disposed of in the aforesaid

terms, alongwith all pending applications.

(Sandeep Sharma),

Judge August 01, 2024 (sunil)