Sandeep Sharma, Judge(oral):

By way of instant petition filed under Section 528 of Bharatiya Nagrik Suraksha Sanhita, prayer has been made on behalf of the petitioner for quashing of FIR No.97 of 2022, dated 22.04.2022, under Section 174-A of IPC, registered at Police Station Sadar, District Hamirpur, Himachal Pradesh, as well as consequent proceedings pending adjudication before competent Court of law.

Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties are that marriage inter se petitioner and one Smt. Sushma was solemnized in the year 2006. However, on account of matrimonial discord, they started living separately w.e.f year 2009. Subsequently, the above named Smt. Sushma filed petition for maintenance under Section 125 Cr.P.C, which was registered as Petition No.19 of 2013. In afore proceedings, Court below granted monthly maintenance of Rs.2,000/- to the wife and Rs.1,000/- to the child, payable by the petitioner. Since petitioner herein failed to pay monthly maintenance, above named lady initiated execution proceedings under Section 125(3) Cr.P.C., registered as Cr.M.A. No.624 of 2015, titled as Sushma Devi Vs. Suresh Kumar, which are pending adjudication before the learned Additional Chief Judicial Magistrate Court No.1, Hamirpur, Himachal Pradesh. In the afore proceedings, petitioner was proceeded against ex parte on 26.07.2016 and ultimately, vide order dated 19.04.2021, letter was issued to the collector with request to give the details about the immovable property in the name of the petitioner. At the time of passing of order dated 31.08.2021, wife of the petitioner stated on oath that petitioner has no movable or immovable property in his name. She also stated that the land and house which were earlier in her name, had already been sold out by the petitioner. Vide order dated 31.08.2021, petitioner was served with a conditional warrant of arrest and in case of failure to do so, it was directed that petitioner be arrested and produced in the Court on 27.10.2021 (Annexure P-1). However, afore warrant of arrest was returned unexecuted with a report from the mother of the petitioner that petitioner was not residing at the given address for a long time and his present whereabouts were unknown. Subsequently, vide same order, Court below directed that petitioner be served through proclamation under Section 82 Cr.P.C for appearance on 17.01.2022 (Annexure P-2). As per report dated 08.04.2022, the serving officer apprised court below that one copy of proclamation was affixed at the house of the petitioner on 13.12.2021, the second copy was affixed on the notice board of Gram Panchayat Malag in the presence of one Bimla Devi and third copy was affixed on the notice board of the Court complex on 14.12.2021. Since despite such service by way of proclamation, the petitioner failed to appear before the Court below, learned Court below directed the concerned SHO to register an FIR under Section 174-A of Indian Penal Code against the petitioner (Annexure P-3).

Pursuant to afore order dated 08.04.2022 passed by the Court below, SHO of Police Station Sadar, Hamirpur, registered impugned FIR No.97 dated 22.04.2022 under Section 174-A of Indian Penal Code.

After completion of investigation, Police has already presented challan in the Court of learned ACJM, Court No.1, Hamirpur, Himachal Pradesh, against the accused, but before the 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, if any, pending adjudication in the competent court of law.

Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Varun Thakur, learned Legal Aid Counsel representing the petitioner, is that impugned action of lodging an FIR against the petitioner under Section 174-A of Indian Penal Code is wholly unjustifiable becau