Salauddin Shahbuddin Khan And Ors vs The State Of Maharashtra And Anr
2016 Latest Caselaw 1637 Bom

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    sas
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                           CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL WRIT PETITION NO.1340 OF 2016




                                                    
          1.     Salaudddin Shahbuddin Khan
                 Age: 43 years, Occ: Business,




                                                   
                 Residing at Room No.503, 5th
                 floor, Mina Co-operative
                 Housing Society, L.B.S. Marg,
                 Kurla (E), Mumbai - 400 070.




                                            
          2.     Alimuddin Shahbuddin Khan
                 Age: 47 years, Occ: Business,
                                    
                 Residing at Room No.703, 7th
                 floor, Mina Co-operative
                 Housing Society, L.B.S. Marg,
                 Kurla (E), Mumbai - 400 070.
                                   
          3.     Kalimuddin Shahbuddin Khan
                 Age: 45 years, Occ: Business,
                 Residing at Room No.503, 5th
                 floor, Mina Co-operative
        


                 Housing Society, L.B.S. Marg,
                 Kurla (E), Mumbai - 400 070.                     ..Petitioners.
     



                          V/s.

          1.     State of Maharashtra





                 (Kurla police station)

          2.     Mohammed Adil Mohammed
                 Haddis Malik, Age: 45 years,
                 Occ: Business, Residing at
                 Room No. th Floor,





                 Mina Co-operative Housing
                 Society, L.B.S. Marg, Kurla (E),
                 Mumbai - 400 070.                                ..Respondents.

          Mr.Hakim Salim for the petitioners.

          Mrs.S.D. Shinde, APP for the respondent-State.

          Mr.Waseem A. Siddique for respondent No.2.

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           CORAM :            NARESH H.PATIL AND A.M.BADAR, JJ.

           RESERVED ON                   :        11TH APRIL, 2016




                                                         
           PRONOUNCED ON :                        20TH APRIL, 2016




                                                        
    JUDGMENT (PER A.M.BADAR, J.)

1. By this petition under Article 226 of the

Constitution of India read with section 482 of the Code of

Criminal Procedure, 1973, petitioners / accused in Sessions

Case No.767 of 2013 for the offence punishable under

sections 307, 326, 506 (II) read with 34 of the Indian Penal

Code, 1860 and under sections 4 and 25 of the Arms Act are

praying for quashing and setting aside the proceedings in the

said Sessions Case pending on the file of learned Additional

Sessions Judge, Greater Bombay, Mumbai.

2. Background facts leading to the registration of this

Sessions Case are thus:-

Respondent No.2 Mohammed Adil is the informant /

alleged victim at whose instance, F.I.R. bearing C.R.

No.113/2013 for the offences punishable under sections 307,

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326, 506(II) read with er of the Indian Penal Code and under

sections 4 and 25 of the Arms Act came to be registered with

Kurla police station, Mumbai against present petitioners and

investigation of the said offence has resulted in filing of

charge-sheet against all petitioners in the Court of the learned

Metropolitan Magistrate, 51st Court, Kurla, Mumbai.

Accordingly criminal case No.1224/PW/2013 came to be

registered and ultimately on 30th July, 2013, the learned

Metropolitan Magistrate was pleased to commit the case to

the Court of Sessions as offences alleged against present

petitioners are exclusively triable by the Court of Sessions.

Accordingly, the Sessions Case No.767/2013 came to be

registered against present petitioners.

3. Learned Sessions Judge thereafter framed and

explained the charge on 15th October, 2013 and petitioners

pleaded not guilty. That is how trial for the offences

punishable under section 307, 323, 506 (2) read with 34 of the

Indian Penal Code, 1860 and under sections 4 and 25 of the

Arms Act commenced against petitioners. It is seen from the

record that by 15th June, 2015, evidence of in all six witnesses,

including that of the informant / respondent No.2 Mohammed

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Adil, Medical Officer Dr.Sheetal Gaikwad, panch witness and

eye witnesses came to be recorded by the learned Sessions

Judge. The Sessions Case, as stated by the parties, is now

fixed for recording evidence of the Investigating Officer. At the

concluding stage of the Sessions trial, present petition is filed

by petitioners / accused with averment that original informant

and petitioners have already resolved their dispute and,

therefore, the proceedings of the Sessions trial needs to be

quashed.

4. Heard learned counsel for the parties so also,

learned APP appearing for the respondent-State.

5. Mr.Hakim Salim, learned counsel appearing for the

petitioner vehemently argued that petitioners so also

respondent No.2 / informant are residing in the same Co-

operative Housing Society and they were having dispute over

the parking slot which resulted in the alleged incident. He

further argued that petitioners / accused and respondent No.2

/ informant have reconciled the differences and entered into

understanding dated 4th January, 2016. He further submits

that petitioners and informant have executed another

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memorandum of understanding dated 17th March, 2016

(Exhibit-C to the petition) and as such, proceedings against

the petitioners if continued, will amount to abuse of process of

the Court. It is further contended that the case cannot result

in conviction as there are discrepancies in evidence of

prosecution witnesses and alleged eye witness Israil Ahmed

Ali Malik who is relative of the informant has admitted that he

had not seen the petitioners / accused. Learned counsel for

the petitioners relied upon the judgment of the Hon'ble

Supreme Court in the matter of 1Yogendra Yadav and Ors.

V/s. State of Jharkhand and Anr. in order to buttress his

contention that when the parties have amicably settled their

dispute and when the victim has no objection, then even

though evidence is recorded in the Sessions Case, the

proceedings can be quashed.

6. Learned counsel appearing for respondent No.2 /

informant has reiterated the submissions advanced by learned

counsel for the petitioners and contended that due to

amicable settlement between the parties and as they are

residents of the same building, the proceedings in Sessions

Case No.767/2013 needs to be quashed.

1 (2014) 9 Supreme Court Cases 653

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7. Mrs.Shinde, learned APP appearing for the State

has vehemently opposed the petition by contending that the

Sessions Case is at the fag end of the trial and only evidence

of the Investigating Officer remained to be recorded. She

contended that offences alleged against the petitioner are

falling in the category of heinous and serious offence which is

a crime against the society and, therefore, the petition

deserves to be dismissed.

8. We have carefully considered the submissions

advanced by the parties. We have carefully gone through the

set of charge-sheet annexed to the petition, so also through

the evidence of prosecution witnesses recorded before

learned trial Court.

9. We have come across averments made by

petitioners / accused in para 6 of the petition which reads

thus:-

"The petitioner has not made any application to the Hon'ble Court or to the Supreme Court of India in respect of the subject matter of this petition. Earlier the petition

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was filed but the same was withdrawn. At present no other petition is pending in any other Court or in the

Supreme Court."

Perusal of this para goes to show that petitioners

have faintly averred that they had filed a petition in respect of

the same subject matter and same reliefs and it was

withdrawn. We have also come across a copy of the order

passed by this Court in the Criminal Writ Petition No.234 of

2016 filed on earlier occasion by the same petitioners. A copy

of the order passed by this Court in Writ Petition No.234 of

2016 on record at page 186 goes to show that the said

petition came to be withdrawn. As such, we have called for

the record and proceedings of Criminal Writ Petition No.234 of

2016. Perusal of the record and proceedings of said Criminal

Writ Petition No.234 of 2016 goes to show that present

petitioners have filed that petition against the State as well as

informant Mohammed Adil. We have carefully perused the

pleadings in that Criminal Writ Petition No.234 of 2016. In the

said earlier instituted writ petition, present petitioners had

placed reliance on the fact that they have resolved their

dispute with respondent No.2 / informant Mohammed Adil and

contended that respondent No.2 Mohammed Adil does not

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wish to prosecute the proceedings of the Sessions Case. This

averment can be found in para 3 of the earlier instituted

Criminal Writ Petition No.234 of 2016. In the said petition,

petitioners have raised similar grounds as are raised in the

instant petition. Grounds (a), (c), (d), (e) and (f) in earlier

instituted petition by present petitioners as well as in the

instant petition are almost ad-verbatim same. So far as ground

(b) is concerned, similar contention is raised in both petitions

by petitioners by stating that they and respondent No.2 /

informant have reconciled their differences and executed

memorandum thereof in writing. In the earlier instituted

Criminal Writ Petition No.234 of 2016, petitioners have placed

reliance on memorandum of understanding dated 4 th January,

2016 and had placed on record said original memorandum of

understanding on record page 183 in that writ petition. This

can be found in ground (b). In the present petition, apart from

relying on the said memorandum of understanding dated 4 th

January, 2016, petitioners are also relying on the subsequent

memorandum of understanding dated 17th March, 2016

(Exhibit-C). Averments in both the memorandums of

understanding i.e. dated 4th January, 2016 and 17th March,

2016 are virtually same. It is thus clear that present petition

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as well as earlier writ petition instituted by present petitioners

are based on same facts and claiming same reliefs. Even

annexures to both the petitions are virtually the same. When

the earlier petition was filed by present petitioners, evidence

of six witnesses was already recorded by the learned Sessions

Judge. As such, the stage of instituting the earlier petition and

the present one is same. In the earlier instituted petition

bearing No. 234 of 2016, similar prayer was made by

petitioners praying quashing of the proceedings in Sessions

Case No.767/2013 arising out of Crime No.113/2013 with Kurla

police station, Mumbai. The same is the prayer in instant

petition. In this backdrop, it needs to be mentioned here that

earlier instituted petition bearing Criminal Writ Petition No.234

of 2016 was withdrawn by the petitioners on 4 th February,

2016 unconditionally. The order dated 4 th February, 2016

passed by this Court in earlier instituted suit i.e. Criminal Writ

Petition No.234 of 2016 reads thus :-

" Mr.Salim, learned Counsel for the Petitioners seeks leave to withdraw the Petition. Leave granted. Petition dismissed, as withdrawn. "

10. We are at pains to note that in a casual manner,

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petitioners have faintly averred in para 6 of the instant

petition that earlier petition was filed but the same was

withdrawn. Petitioners have thus suppressed the material

facts regarding institution of petition based on same facts and

for claiming same reliefs from this Court. Petitioners are

invoking equitable jurisdiction of this Court by suppressing

material facts. It is well settled that for claiming equitable

reliefs, petitioners must approach the Court with clean hands.

Hide and seek practice adopted by petitioners herein by

making faint averment and that too in one sentence at the fag

end of the pleadings needs to be deprecated. As petitioners

had already filed criminal writ petition claiming similar reliefs

on the same facts and the said petition has been withdrawn

on 4th February, 2016, instant petition deserves to be

dismissed. Even otherwise, as earlier petition has been

withdrawn, this subsequent writ petition between the same

parties on the same subject matter is not maintainable.

11. Apart from this, we are not inclined to quash the

proceedings in Sessions Case No.767/2013 on merits also. It

is seen from the F.I.R. Dated 24th April, 2013 lodged by

respondent No.2 Mohammed Adil to the effect that he was

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having shop block adjacent to shop block of present

petitioners. F.I.R. reveals that present petitioners used to

create obstacles in front of shop block and earlier, petitioners

had assaulted respondent No.2 / informant Mohammed Adil.

Petitioners, as seen from the F.I.R., are facing trial of other

criminal case initiated at the instance of respondent No.2

Mohammed Adil in the Court of Metropolitan Magistrate, Kurla,

Mumbai. F.I.R. Further shows that present petitioners used to

threaten informant Mohammed Adil (Respondent No.2) for

withdrawing the said criminal case and ultimately on 24 th

April, 2013 they had attempted to commit his murder by

assaulting him by means of sword, iron rod and cricket bat.

We have also perused the injury certificate wherein apart from

other injuries, it is seen that respondent No.2 / informant has

suffered deep incised wound of length of 10 cm. It is seen that

weapons used in the offence are recovered at the instance of

accused persons by resorting to the provisions of section 27

of the Evidence Act. There are some eye witnesses to the

incident in question and their evidence is also recorded during

trial. As reported by the learned APP, the trial is at the fag

end waiting for recording of evidence of the Investigating

Officer. Offences alleged against present petitioners, as seen

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from the charges framed by the learned Sessions Judge, are

under section 307, 326, 506 (II) read with 34 of the Indian

Penal Code and under sections 4 and 25 of the Arms Act. The

assault is said to be by means of dangerous weapons like

sword, iron rod and cricket bat. In such a situation, though it

is averred that parties have settled the matter amicably, we

are not at all impressed and convinced that the same is for

maintaining peace and tranquility in the society. Similar deed

of settlement executed by the parties on earlier occasion is

not accepted by the Co-ordinate Bench of this Court. In the

matter of Yogendra Yadav (supra) relied upon by learned

counsel for petitioners, the Hon'ble Supreme Court has held

that High Court needs to exercise its discretion to quash

proceedings considering the facts and circumstances of each

case. It is clarified in the said judgment that offences involving

moral turpitude, grave offences like rape, murder, etc. cannot

be effaced by quashing the proceedings because that will

have harmful effect on the society. Such offences cannot

be said to be restricted to two individuals or two groups. It is

held therein that if such offences are quashed, it may send

wrong signal to society. It is further held that however, when

the High Court is convinced that the offences are entirely

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personal in nature and, therefore, do not affect public peace

or tranquility and where it feels that quashing of such

proceedings on account of compromise would bring about

peace and would secure ends of justice, it should not hesitate

to quash them. In the instant case, the victim was assaulted

in open place in presence of other persons and as such, it

cannot be said that public peace or tranquility was not

affected by the alleged act of petitioners / accused persons.

12.

At this juncture, relevant portion of the guidelines

Narinder

Singh v. State of Punjab can be quoted with advantage. In

para 29.6 the Hon'ble Apex Court has considered the

circumstances in which prosecution in offence punishable

under section 307 of the Indian Penal Code can be quashed.

The relevant portion of the said guidelines reads thus:-

"29.6. Offences under Section 307 IPC would fall in

the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR

2 (2014) 6 SCC 466

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or the charge is framed under this provision. It would be open to the High Court to examine as to whether

incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence,

which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained,

whether such injury is inflicted on the vital / delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can

generally be the guiding factor. On the basis of this

prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the

chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case

it would be permissible for the High Court to accept the plea compounding the offence based on complete

settlement between the parties."

13. In the case in hand, petitioners are accused of an

offence punishable under section 307 of the Indian Penal

Code, which falls in the category of heinous and serious

offence which is generally treated as a crime against the

society and not against an individual alleged. As the trial is at

the fag end, we wish to refrain ourselves from commenting

any further on the merits of the matter but we make it clear in

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no uncertain terms that present case is not a fit case to

interfere in our equitable as well as extra-ordinary jurisdiction

for quashing the proceedings of Sessions Case involving

serious and heinous offence. It is well settled that inherent

powers are to be exercised in rarest of rare cases and that too

for preventing abuse of process of the Court and for securing

the ends of justice. We are clear in our mind that these

objective cannot be achieved by quashing the Sessions Case

against present petitioners.

ig As such, petitioners are not

entitled to any reliefs in the instant petition. We propose to

impose costs upon the petitioners for filing the instant petition

despite the fact that their earlier instituted petition on same

facts and for the same reliefs has already been withdrawn by

them and for not making adequate pleading in that regard in

the instant petition.

13. In the result, the petition is dismissed with costs

quantified at Rs.10,000/-.

             (A.M. BADAR, J.)                 (NARESH H.PATIL, J.)