Mathew D'Souza v. The State Of Maharashtra And ANR

Digitally signed by Shagufta Qutbuddin Pathan Date:

2018.07.26 11:50:35 +0530 Shagufta Qutbuddin Pathan

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 733 OF 2018 Mathew D'Souza ...Applicant

Versus

The State of Maharashtra & Anr.

...Respondents

Mr. Arjun Suryakant Kode for the Applicant Mrs. A. S. Pai, A.P.P for the Respondent No.1-State Mr. George Ruskin for the Respondent No. 2 CORAM : R. M. SAVANT & REVATI MOHITE DERE, JJ.

THURSDAY, 5th JULY, 2018 P.C. :

Leave to amend prayer clause (a) so as to incorporate the CC number is granted. Amendment to be carried out forthwith. The above Criminal Application has been filed for quashing and setting aside of the proceeding being C. C. No.628/PW/2017, pending on the file of the learned Metropolitan Magistrate, 59th Court, Kurla, Mumbai. The said case has arisen out of the FIR being No. 188 of 2017 1/5

registered with the Vinoba Bhave Nagar Police Station, Mumbai on 5th September 2017 for the offences punishable under Sections 326, 323 and 504 of the Indian Penal Code.

The first informant i.e. the Respondent No.2 herein is the real brother of the Applicant and the cause for registering the FIR is on account of the incident which took place on 4th September 2017. It is not necessary to dilate further on facts. The Respondent No. 2 herein who is the injured, has filed an affidavit dated 3rd July 2018, which is affirmed before the Notary Mr. B. R. Dube having his office at Lady Ratan Complex, D. S. Marg, Worli, Mumbai - 400 018. It is stated in paragraph 10 of the said affidavit that the Applicant is a patient of Schizophrenia and is under constant medication. It is further stated that the alleged incident has not arisen out of any personal enmity and there was no intention and knowledge on the part of the Applicant to seriously injure the Respondent No.2.

In the context of the present Application, paragraph 14 of the said affidavit can be gainfully reproduced hereinunder : "14.

FIR and case. I say that I don't want any case against my brother to continue. I love my brother."

The Respondent No.2-Francis D'Souza is personally present in Court. He is identified by the learned counsel Mr. Goerge Ruskin. He is also identified by his Aadhar Card bearing No. 795283381008. When put in the box and queried, he states that he has read and understood the contents of the affidavit dated 3rd July 2018, which is tendered by his learned counsel Mr. Goerge Ruskin today in Court. He further states that he does not desire to proceed with the case in question against his brother. He lastly states that he has filed the said affidavit of his own free will and volition. The mother of the Applicant and the Respondent No. 2Cecillia D'Souza is also personally present in Court. She is identified by the learned counsel Mr. Goerge Ruskin. She is also identified by her Aadhar Card bearing No. 741318527598. When put in the box and queried, she states that the Applicant and the Respondent No. 2 are her children and that she does not desire that her children should be contesting a case in the Court of Law.

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It is not necessary to record the statement of the Applicant, as it is reported that he is suffering from Schizophrenia in respect of which, there is also a report of the Mumbai Municipal Corporation on record. From the said report, it appears that the Applicant, at times, suffers from hallucinations. In view of the affidavit filed by the first informant i.e. the Respondent No. 2 and the statements made by him and their mother- Cecillia D'Souza, as also, considering the fact that the Applicant and the Respondent No. 2 are the real brothers, we are of the view that no useful purpose would be served in keeping the proceedings pending. In the said context, a useful reference could be made to the judgments of the Apex Court in the matters of Gian Singh vs. State of Punjab & Anr.1 and Narinder Singh & Ors. vs. State of Punjab & Anr.2, which would assist in quashing of the proceedings. (2012) 10 SCC 303 2014 AIR SCW 2065 4/5

The above Application is, therefore, required to be allowed and is accordingly allowed in terms of prayer clause (a). REVATI MOHITE DERE, J.

R. M. SAVANT, J.

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