CRMMO/12/2017 on 31 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 12 of 2017 Decided on : 31stDecember,2018 ____________________________________________________________ Sayyam Khurana ……Petitioner Versus State of H.P. & another

…..Respondents

Coram:

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?_____ For the petitioner : Ms. Archana Dutt,Advocate. For the respondents : Mr.

Shiv

Pal

Manhans Additional Advocate General with

Mr.R.P.Singh

and Mr.R.R.Rahi, Deputy Advocate General, for respondent No.1 and none for respondent No.2.

Justice Vivek Singh Thakur, Judge

(Oral) Present petition has been filed for quashing the proceedings in case No. 2 of 2014 titled State of H.P. vs. Sayyam Khurana pending before learned Principal Magistrate Juvenile Justice Board, Kangra at Dharamshala and in case No. SC No. 9-B/VII/14 titled as State of H.P. vs. Sayyam Khurana pending before learned Special Judge, Kangra at Dharamshala against FIR No. 35/2013 dated 8.3.2013 registered at P.S. Baijnath under Sections 292,

384, 201, 506, 354 (c) of Indian Penal Code and 66-E, 67-A, B of IT Act and Section 14(1) of the Protection of Children from Sexual Offence Act, 2012 and also for quashing of FIR on the ground that from the Forensic Science Laboratory report, it is clear that images/photographs of the victim, alleged to have been taken by the petitioner through mobile phone handed over by the petitioner to the police during investigation, have not been found to be taken with the said instrument.

During hearing of the case, it was also pointed out by learned counsel for petitioner that for one offence, alleged to have been committed by the petitioner, FIR No. 35 of 2013 has been registered against him in P.S. Baijnath, however, the petitioner has been subjected to two trials i.e. one before the Juvenile Justice Board, Kangra at Dharamshala and another before the Special Judge, Kangra at Dharamshala for commission of one and same offence.

So far as the first plea of petitioner is concerned, evaluation of particular piece of evidence is to be considered by the concerned Court during trial before itself and it is not a proper stage to evaluate the evidence of prosecution by this Court, relied upon by it during trial which is still pending. Therefore, proceedings/FIR cannot be quashed, as pleaded by the petitioner on this ground.

The notice of accusation put to the petitioner by the Principal Magistrate Juvenile Justice Board has also been placed on record along with the copy of FIR. Record of learned Special Judge has also been summoned. Perusal of charge framed against the petitioner therein reveals that petitioner has been subjected to the trial before learned Special Judge for circulation of indecent nude photographs of victim on 6.3.2013, whereas from the notice of accusation put to him by Juvenile Justice Board, reveals that he has been subjected to proceedings before the said Board for preparing and capturing the nude and indecent material i.e. photographs of prosecutrix through his mobile between December 2011 to 27th November, 2012.

Admittedly, date of birth of petitioner is 28.11.1994 and he has attained the age of 18 years on 28.11.2012. He has been subjected for proceedings before the Board for commission of offence during the period December 2011 to 27th November, 2012 i.e. prior to his attaining age of 18 years, whereas offence of circulation of those photographs has been alleged to have been committed on 6.3.2013 i.e. after his attaining of 18 years age.

In these aforesaid circumstances, I find no illegality or irregularity subjecting the petitioner to trial before two different Forums i.e. Juvenile Justice Board and Court of learned Special Judge, as two distinct and different offences alleged to have been committed by petitioner at different times there and for commission of offence before attaining the age of 18 years petitioner is liable to face the proceedings before the Juvenile Justice Board and for commissioner of offence after attaining the age of 18years, he is liable to face trial before learned Special Judge. Parties are directed to appear before learned Special Judge, Kangra at Dharamshala on 19th January, 2019 in case SC No. 9- B/VII/14 titled as State of H.P. vs. Sayyam Khurana.

With aforesaid observations, petition is dismissed as also the pending miscellaneous application(s), if any. Record be sent back forthwith.

(Vivek Singh Thakur) Judge December 31, 2018 (ms)