Mohammed Faraz Farmood Ali ... vs The Senior Inspector Of Police And ...
2017 Latest Caselaw 1025 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION
                      WRIT PETITION NO.4281 OF 2016



 Mohammed Faraz Farmood Ali Salmani.               ..     Petitioner
       Vs
 The Senior Inspector of Police and Another.       ..     Respondents
       -

Shri S.R.Garud i/b Jayakar and Partners for the Petitioner. Ms. M.H. Mhatre, APP for the Respondent No.1. Shri Aabad H.H. Ponda i/b Shri Karma Vivan for the Respondent No.2.

-

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

DATED : 24TH MARCH 2017

ORAL JUDGMENT ( PER A.S. OKA, J)

1. The submissions were heard yesterday. Rule. The learned

APP waives service for the first Respondent. The Advocate for the

second Respondent waives service. Forthwith taken up for final

disposal.

2. The prayer in this Petition under Article 226 of the

Constitution of India read with Section 482 of the Code of Criminal

Procedure, 1973 (for short "CrPC") is for quashing the First Information

Report (FIR) lodged alleging commission of offences under Sections

354(B), (D), 506(II), 504 of the Indian Penal Code as well as under

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Sections 8 and 12 of the Protection of Children from Sexual Offences

Act, 2012 (for short "POCSO Act"). The quashing is sought on merits as

well as on the ground of settlement.

3. The second Respondent is the victim of the offence. At the

relevant time, the second Respondent was a minor. His date of birth is

5th December 1998. Thus, she has become major on 6th December 2016.

Perusal of the statement of the second Respondent on the basis of which

FIR was registered shows that through the mode of Face Book, the

second Respondent was in touch with the present Petitioner since the

year 2012. In April/May 2014, when the second Respondent visited the

place of her father in Saudi Arabia, on the invitation given by the father

of the Petitioner, the family of the second Respondent and the second

Respondent visited the house of the father of the Petitioner in Saudi

Arabia. It appears that after coming back to India, the second

Respondent was in touch with the Petitioner. It appears that they were

meeting each other from August 2014 to December 2015. However, on

some issues, they used to fight with each other.

4. The allegation in the FIR is that on 29 th August 2016, when

she reached her College Lala Lajpatrai, the Petitioner came there in a

Car. While the second Respondent was alighting from a motor cab, the

Petitioner told her to sit in his Car. It is her case that she refused to sit

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in the Car but the Petitioner threatened her to create a scene in front of

the College and, therefore, she sat in the car. It is stated that the

Petitioner proceeded with her by the car from Mahalaxmi Station

towards Worli Sea Link. At that time, according to the first informant,

the offence complained of under Section 354 was committed by the

Petitioner. It is alleged that he threatened the second Respondent to kill

her. He also threatened to commit suicide. Ultimately, the Petitioner's

friend stopped the Car at K.K. Road where the second Respondent's

friends were standing. It is alleged that the Petitioner abused her

friends and threw her cell phone on the footpath on two occasions. The

FIR was registered on 1st September 2016.

5. It is apparent from the statement of the mother of the

second Respondent which is a part of the chargesheet that the mother

of the second Respondent along with the second Respondent proceeded

to the Tardeo Police Station on 29 th August 2016 when a complaint of

Non-cognizable case (NC) was registered in connection with the same

incident. We have perused the NC complaint registered by the second

Respondent against the Petitioner. In the NC complaint, the second

Respondent stated that the Petitioner is her cousin. They knew each

other. It is further stated that they were having love affair for a period

of two years. She further stated in the NC Complaint that at 7.30 a.m.,

the Petitioner came to her College and requested her to accompany to

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him. When the second Respondent refused, the Petitioner abused her

and assaulted her by hand. No other allegation is made in the NC

Complaint lodged by the second Respondent at 8.30 p.m. on 29 th March

2016. As stated earlier, the FIR about the same incident which took

place at 7.30 a.m. Lon 29th August 2016 was lodged by the second

Respondent. It appears from the FIR that in fact at 23.50 hrs on 1 st

March 2016, the statement of the second Respondent was recorded.

Thus, it appears to us that the allegations made in the FIR regarding

outraging her modesty by tearing her clothes is clearly an afterthought.

As stated earlier, the only allegation is made by the second Respondent

on 29th August 2016 in her NC complaint was that the Petitioner abused

her and assaulted her by hand.

6. There are consent terms signed by the Petitioner and the

second Respondent and their respective Advocates. The Petitioner has

undertaken that he will not harass the second Respondent and her

family members and he will stay away from them. There is an affidavit

filed by the Petitioner in terms of the undertakings. It is stated that the

second Respondent wants to move ahead in her life to complete her

education and to get married. There is an affidavit filed by the second

Respondent in terms of the settlement. There is a specific undertaking

of the Petitioner not to visit College or Institution where the second

Respondent is studying. He has further undertaken not to visit the

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second Respondent and not to communicate with the second

Respondent in any manner. He has also undertaken not to cause

harassment or disturbance to the second Respondent or her family

members.

7. As stated earlier, going by the complaint lodged by the

second Respondent herself on the date of incident, the only allegation

made by her against the Petitioner was of abusing her and assaulting

her by hand. Therefore, the allegation of commission of serious offence

of outraging her modesty in the FIR appears to be completely by way of

an afterthought.

8. Therefore, it is not possible to accept that the offences

under Sections 354(B), 354(D), 506(II) and 504 of the Indian Penal

Code and the offence alleged under Sections 8 and 12 of the POCSO Act

are made out.

9. In view of this position, considering the settlement between

the parties and the undertakings given by the Petitioner, this is a fit case

to exercise the powers under Section 482 of the CrPC.

10. Accordingly, we pass the following order:

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ORDER :

(a) We accept the undertakings of the Petitioner dated 8 th

February 2017;

(b) Rule is made absolute in terms of prayer clause (a)

which reads thus;

"(a) This Hon'ble Court be pleased to quash and set aside POSCO Special Case No.470 of 2016 pending before the Addl. Sessions Judge, Court Room No.18, Mumbai and the Chargesheet arising out of FIR being C.R.No.224/2016 registered by the Tardeo Police Station for offences U/s.-354(B)(D), 504(2), 506 of IPC and Sections 8 & 12 of the Protection of Children from Sexual Offences Act, 2012 against the Petitioner."

(c) All concerned to act upon an authenticated copy of

this order.

  (SMT.ANUJA PRABHUDESSAI, J)                                 ( A.S. OKA, J )