Farooque Mohammed Vali Shaikh And ANR v. Shakil Ahmed Mohammed Vali Shaikh And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 4553 OF 2016 Farooque Mohammed Vali Shaikh & Anr.

..Petitioner v/s.

Shakil Ahmed Mohammed Vali Shaikh & Ors.

..Respondents Mr. Ganesh Bhujbal for the Petitioner.

Mr. Pawan Mali for the Respondent No.1.

Mr. K.V.Saste, APP for the Respondent No.2.

CORAM : A.S.OKA & ANUJA PRABHUDESSAI, JJ.

DATED : 25TH JANUARY, 2017 P.C.

1.

Rule. The learned APP waives service on behalf of the second respondent. The learned Counsel for the first respondent waives service. Forthwith taken up for hearing.

2.

The petitioner and the first respondent are personally present before the Court. The prayer made in this petition under Article 226 of the Constitution of India is for quashing the First Information Report lodged at the instance of the first respondent for the offences punishable under Section 452, 323, 504 read with Section 34 of the

Indian Penal Code. The prayer for quashing is sought on the ground of settlement. The first respondent has filed an affidavit dated 17th January, 2017 recording his no objection for quashing the proceeding of the criminal case on the ground of settlement. 3.

A perusal of the statement of the first respondent on the basis of which first information report was registered shows that the petitioners are his real brothers. The victims of the alleged offence apart from the first respondent are his wife Kanis Fatima and his daughters Farhad and Daraksha. A perusal of the statement of the first respondent, on the basis of which first information report was registered shows that the dispute between the first respondent and his brothers who are the petitioners, was as regards a share in a hotel which was owned by the father of the petitioners and the first respondent. It appears from the statement that the dispute about the share leads to the alleged incident.

4.

The first respondent, in his affidavit stated that the dispute between him and the petitioners as well as other family members has been resolved and he has been given a share in the ancestral properties to his satisfaction. The three other victims of the offence

have also filed affidavits accepting that the first respondent has been given his share. Two out of three offences alleged are compoundable. As we are satisfied that the incident occurred due to a dispute over the share of the first respondent in the immovable property, and as there is a settlement of the said dispute, the continuation of criminal proceeding will not serve any purpose. Chances of conviction are very bleak. The offences alleged are not against the society at large or of serious nature. Therefore, this is a fit case to exercise the powers of this Court of quashing the offence. Accordingly, we pass the following order:

a) Rule is made absolute in terms of prayer clause (a) which reads thus:

"The Honourable Court be pleased to quash and set aside the FIR vide C.R.No. 43/2016 registered with Dongri Police Station, for offences under Section 452, 323, 504 r/w. 34 of I.P.C." b) All concerned to act on the authenticated copy of this order. (ANUJA PRABHUDESSAI, J.) (A.S.OKA, J.)