Akib Zameer Shaikh v. The State Of Maharashtra And ANR.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 830 of 2019 Akib Zameer Shaikh .....Petitioner versus The State of Maharashtra and anr.

......Respondents Mr. Santosh S. Musale, advocate for the petitioner. Ms. Sangeeta D. Shinde, APP for the State.

Mr. Jayesh Kumar Gupta, advocate for respondent No.2. CORAM : RANJIT MORE & SMT. BHARATI H. DANGRE, JJ.

DATE : 30th APRIL, 2019.

P. C. :

1.

Learned counsel for the Petitioner at the outset seeks leave to amend the petition so as to give particulars of the sessions case. Leave granted. Necessary amendments be carried out forthwith. 2.

Heard the learned counsel for the Petitioner, the learned counsel for Respondent No. 2 and learned APP for the Respondent-State. The petition is filed for quashing and setting aside the proceedings of Sessions Case No. 600 of 2017 pending before the Sessions Court at Pune. The said case has arisen from the FIR bearing CR. No. 191 of 2017 registered with Wakad Police Station, Pune at the instance of Respondent No.2 for the offence punishable under section 376 of the Indian Penal Code, 1860.

Sachin R Patil 1/5

3.

The learned Counsel appearing for the respective parties submitted that during the pendency of above sessions case, the parties amicably settled their differences by way of mutual settlement and pursuant to the understanding arrived at between them, present petition is filed for quashing the above FIR, by consent of Respondent No. 2. 4.

Respondent No. 2 has filed an affidavit dated 18th April 2019. In paragraphs 5, 7 and 8, she has given no objection to quash the proceedings of the subject sessions case.

5.

Respondent No.2 is personally present before the Court. On specific query made by us, she submitted that she has made the said affidavit on her own free will, without there being any pressure or undue influence. She has further confirmed that she has no objection for quashing the proceedings of the subject criminal case initiated by her against the Petitioner for the offence punishable under section 376 of IPC.

6.

It is true that the offence under section 376 of IPC is of serious nature and is an offence against the society. Consequently, such an offence cannot be quashed by consent. Nonetheless, it would be advantageous to refer to Paragraph 28 of Narinder Singh vs. State of Punjab [2014 AIR SCW 2065], wherein the Apex Court has held as under : "28.

Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same Sachin R Patil 2/5

time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/Charge-sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under section 482 of the Code and refuse to accept the settlement between the parties.

We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties.

On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties."

.

The decision of the Apex Court, thus, makes it clear that the Court cannot decline to quash the FIR merely because the FIR incorporates a particular provision which is a serious offence or an offence against the society. The Court has to endeavour to find out whether the FIR indeed discloses ingredients of such offence and that the Court can accept the settlement and quash the FIR / Charge-sheet if the Court is of the opinion that such an offence is unnecessarily incorporated in the charge-sheet.

6.

So far as the instant case is concerned, we have gone through the FIR. The FIR discloses that at the relevant time both, the Petitioner as well as Respondent No.2 were working in the same company and both Sachin R Patil 3/5

were major at the time of incident. The FIR further discloses that they become friends and it resulted into physical relationship. The FIR came to be filed as the Petitioner refused to marry Respondent No.2. Thus, the FIR discloses that relationship between the parties was consensual. Thus offence under section 376 is not made out. Consequently, no fruitful purpose will be served by continuing with the prosecution of the Petitioner in the subject FIR.

7.

In these circumstances, and especially, in view of the law laid down by the Apex Court in the case of Madan Mohan Abbot vs. State of Punjab, [(2008) 4 SCC 582], we find that no purpose would be served by keeping the subject FIR alive except ultimately burdening the Criminal Courts which are already overburdened.

8.

In the light of the principles laid down by the Apex Court in the aforesaid decision as well as in the case of Narinder Singh vs. State of Punjab [2014 AIR SCW 2065] we are of the considered view that there is no impediment in quashing the subject FIR. In that view of the matter, writ petition is made absolute in terms of prayer clause (a). As the police machinery and the Court machinery was used by the parties to settle their private disputes as a corollary of differences of opinion, we find it would be appropriate to saddle the Petitioner with the cost of Rs.10,000/-, which shall be paid to the "Tata Memorial Hospital" an institution that takes care of the advanced and terminally ill cancer Sachin R Patil 4/5

patients. For the quashment to take effect, the Petitioner shall pay the said cost and produce the receipt thereof on the file of this Court within the period of four weeks from today. Failing to pay cost and produce receipt within stipulated time, petition shall stand dismissed automatically without further reference to the Court and order quashing the proceedings/FIR shall be treated as non-est. [SMT. BHARATI H. DANGRE, J.] [RANJIT MORE, J.] Sachin R Patil 5/5