Bombay High Court
Avinash Haribhau Shinde vs The State Of Maharashtra And Anr on 26 June, 2019
Bench: Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.5848 OF 2018
Avinashh Haribhau Shinde ..Petitioner
V/s.
The State of Maharashtra & Anr. .. Respondents
----
Mr.Satyavart Joshi for the Petitioner.
Mr.K.V. Saste, AGP for the Respondent-State.
Mr.Sagar S. Tambe for Respondent No.2.
----
CORAM : RANJIT MORE &
SMT.BHARATI H. DANGRE, JJ.
DATE : 26th JUNE 2019
P.C.
1. Heard learned counsel for the petitioner, learned APP
for the Respondent No.-1-State and learned counsel for respondent
No.2.
2. The petition is filed for quashing and setting aside the
proceedings of the Criminal Case bearing RCC No.403224/2013
pending in the Court of learned JMFC, Pune. The said case arises
out of the registration of FIR bearing C.R. No.14 of 2012 with Paud
Police Station, Pune Gramin at the instance of respondent No.2 for
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an offence punishable under Sections 376 and 420 of Indian Penal
Code and under Section 3(1) (12) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act.
3. The learned counsel appearing for the respective parties
submit that during the pendency of the trial of the subject Criminal
Case, the parties amicably settled differences by way of mutual
settlement and pursuant to the understanding arrived between
them, the present petition is filed for quashing the subject criminal
case by consent of the respondent No.2.
4. The respondent No.2-original complainant has filed
affidavit dated 23.04.2019. In paragraph No.3, she has stated that
the dispute between herself and petitioner is amicably resolved and
therefore further proceedings in connection with the subject CR and
Criminal Case needs to be quashed and in paragraph No.4 she has
stated that she has no grievance against the petitioner and gives
voluntary consent for quashment of the criminal proceeding of the
subject criminal case. In paragraph No.5, she has given no objection
for quashing and setting aside the subject criminal case.
5. Respondent No.2 is personally present before the Court.
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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 and proceedings in question initiated by
her against the Petitioner for the offence punishable under sections
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 Punjab1, 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
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
1 [2014 AIR SCW 2065]
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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.
7. So far as present instant case is concerned, we have
gone through the FIR. Reading of the FIR makes abundantly clear
that the petitioner and respondent No.2-original complainant were
adult at the time of the incident. The complainant belongs to the
caste 'Hindu Mahar' and caste of the petitioner belongs to the 'Hindu
Gondhali'. Both the petitioners and respondent No.2-original
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complainant were serving in Universal Biacon Pvt. Ltd. on contract
basis. The FIR further discloses that the petitioner and respondent
No.2 were in love relationship which resulted into physical
relationship. The FIR came to be filed as the petitioner refused to
marry the complainant.
8. That apart, a common statement is made at the bar that
the respondent No.2-complainant subsequent to the registration of
FIR, got married and she has two issues from the marriage. It was
also submitted that child born out of the relationship between
complainant and the petitioner is entrusted to an NGO. It was lastly
submitted that in these circumstances quashing of the FIR would be
in the interest of complainant herself. In light of the above facts and
circumstances and the submissions of the learned counsel for the
respective parties, we are of the opinion that offence under Section
376 is not made out from the FIR, since the relationship was
consensual. Hence we are inclined to quash the subject FIR and
proceedings as no purpose would be served by continuing the
investigation in the subject proceeding.
9. In these circumstances, and especially, in view of the
law laid down by the Apex Court in the case of Madan Mohan
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Abbot vs. State of Punjab2, we find that no purpose would be
served by keeping the subject FIR alive except ultimately burdening
the Criminal Courts which are already overburdened.
10. 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
Criminal Case bearing RCC No.403224/2013 pending in the Court
of learned JMFC, Pune. In that view of the matter, writ petition is
made absolute in terms of prayer clause (a).
(SMT.BHARATI H. DANGRE, J.) (RANJIT MORE, J.)
2 2008-2-SCC-582
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