Joji Joseph Vithayathil v. The State Of Maharashtra And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION U/S. 482 NO.1182 OF 2018 Joji Joseph Vithayathil ..Applicant V/s.

The State of Maharashtra & Anr.

..Respondents ---- Ms.Sangita S. Patil for the Applicant.

Ms.S.D. Shinde, APP for the Respondent-State. Mr.N.S. Mundargi I/b Mr.K.D. Ambulkar for Respondent No.2. ---- CORAM : RANJIT MORE & SMT.BHARATI H. DANGRE, JJ.

DATE : 26th MARCH 2019 P.C.

1.

Heard learned counsel for the applicant, learned APP for the Respondent-State and learned counsel for respondent No.2. 2.

The petition is filed for seeking quashment of the proceedings in Sessions Case No.443 of 2018. The said case arises out of the Registration of FIR bearing C.R. No.127 of 2018 regitered with Shahu Nagar Police Station, Mumbai at the instance of the respondent No.2 for offence punishable under Section 376 and 420 of the Indian Penal Code.

N.S. Kamble page 1 of 6

3.

The learned counsel appearing for the respective parties submitted that during the pendency of the trial of the subject Sessions Case, the parties settled their differences by way of mutual settlement and pursuant to the understanding arrived between them, present petition is filed for quashing the subject proceedings, by consent of Respondent No.2.

4.

The respondent No.2 original-complainant has filed an affidavit dated 26th March 2019 in paragraph Nos.2,3 and 4 following averments are made :- "2.

I say that the subject FIR was lodged by me under the prevailing circumstances at the relevant point of time between me and the Applicant (Joji Joseph Vithayathil). However accordingly we have resolved the issue amongst our self hence I don't wish to proceed with the subject FIR.

3.

I say and submit that in view of the amicable settlement of piousness and good self between me and the applicant keeping in view the future consequences and the subject issue being personal between us, it would be waste of time of Hon'ble Courts and no useful purpose would be served if the said proceedings/matter continues.

4.

I say that I have no objection if Sessions Case N.S. Kamble page 2 of 6

No.443 of 2018 pending on the file of Ld. Sessions Court, Gr.Bombay arising out of FIR bearing C.R. No.127 of 2018 dated 13.05.2018 lodged with Shahu Nagar Police Station for offences punishable Under Section 376, 420 of IPC is quashed.

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 FIR in question initiated by her against the Petitioner for the offence punishable under section 376 and 420 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 time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the N.S. Kamble page 3 of 6

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. N.S. Kamble page 4 of 6

7.

So far as the instant case is concerned, we have gone through the FIR and charge-sheet. The Petitioner and Respondent No.2 were adults at the time of registration of the FIR and their relationship was consensual. The subject FIR came to be registered when the petitioner refused to marry with respondent No.2. In the circumstances, we are of the opinion that offence under Section 376 is not made out. Consequently, no fruitful purpose will be served by continuing with the prosecution.

8.

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. 9.

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 N.S. Kamble page 5 of 6

a corollary of differences of opinion, we find it would be appropriate to saddle the Petitioner with the cost of Rs.50,000/-, which shall be paid to the "Tata Memorial Hospital" an institution that takes care of the advanced and terminally ill cancer 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.) N.S. Kamble page 6 of 6