r. S C Sliarma, Adv. v. STATE & ANR

1. Ld. counsel for the petitioner submits that FIR No.86 dated 11.04.2009 was registered under Section 452/323/506/34 Indian Penal Code against the petitioners, on the complaint of respondent No.2 at PS Welcome Colony.

2. He further submits that respondent No.2 Mohd. Sartaz has amicably settled all the disputes qua the aforesaid FIR and he does not want to pursue the case further. 2011:DHC:9867

3. Respondent No.2 is present in person in the Court and he is identified by his counsel Mr. Suresh Kumar and SI Ajay Kumar, PS Welcome Colony. Respondent No. 2 submits that if the present FIR is quashed he has no objection as he has settled all the issues qua the aforesaid FIR against the petitioners.

4. Ld. APR submits that Section 452 is not compoundable. She has referred the case of Hon'ble Supreme Court in Gian Singh Vs. State of Punjab & Ann in SLP (CrI.) No.8989/2010 wherein the Division Bench 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 the larger Bench for re-consideration whether the abovesaid three decisions were decided correctly or not.

5. It is submitted, till the result of the larger Bench, the present case need not be decided. Alternatively, if it is quashed then the petitioner should pay heavy cost.

6. Previously, I have taken the view on the basis of the judgment of the Division Bench of Mumbai High Court in Nari L Motiram Hira Vs. Avinash Balkrishnan & Ann in Crl.W.P.No.995/2010 decided on 03.02.2011 wliereby tine Division Bench of Mumbai High Court has pernnitted for compounding of the offences under Section 452/324 of Indian Penal Code which were of 'non-compoundable' category as per Section 320 Cr. P.C. and the FIR No.50/2010 registered at Amboli Police Station, Andheri dated 06.02.2010, was quashed. Therefore, I feel that unless and until, the decisions which have been referred above, are set aside or altered, the same decisions are the precedent and binding effect.

7. I find force in the submission of the Id. APP. However, keeping in view case of Nari Motiram Hira (Supra), I am of the view that earlier decisions of the Hon'ble Supreme Court still hold the field until these are reversed by the Court.

8. Keeping the settlement deed dated 25.06.2011 in view and the fact that respondent No.2 does not want to pursue the case, therefore, in the interest of justice I quash FIR No.86 dated 11.04.2009 registered under Section 452/323/506/34 Indian Penal Code against the petitioners on the complaint of respondent No.2 at PS Welcome Colony and the proceedings emanating thereto. f

9. While quashing FIR, I innpose cost of Rs.15,000/- each on petitioner No.l and petitioner No.3 to be paid in favour of Child Welfare Fund 'Delhi Child Welfare Fund', at Child Protection Unit, Department of Women and Child Development, 1, Canning Lane,

K. G. Marg, New Delhi within one week from today. Proof of the same shall be placed on record.

10. 1 defer imposing cost on petitioner No.2, who is a first year B-Tech student and has no earning.

11. CRLM.C. 2619/2011 is allowed in the above terms.

SEPTEMBER 06, 2011 vid SURESH KAITJ X