Bombay High Court
Ayasha Hussainali Khan @ Ayesha ... vs The State Of Maharashtra And Ors on 6 August, 2021
Bench: S.S. Shinde, N. J. Jamadar
Digitally signed
LAXMIKANT by LAXMIKANT
GOPAL
GOPAL CHANDAN
CHANDAN Date: 2021.08.06
17:34:34 +0530 (12) jt.cri.wp-5918.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.5918 OF 2019
Ayasha Hussainali Khan @ ]
Ayesha Mohammad Isiam Khan ]
Age 39 years, occ : Unemployed ]
Residing at Room No.696 ]
Plot No.7, Bharat Nagar, ]
Bandra (East), ]
Mumbai - 400 051 ]..... Petitioner.
Versus
1] State of Maharashtra ]
(Through Oshiwara Police St. ]
]
2] Mr. Mehmood Rehan Khan ]
Age 64 years, occ Retired ]
]
3] Hasmati Bi Mehmood Khan ]
Age 60 years, occ : Housewife ]
]
4] Mrs. Shahida Mehmood Khan ]
Age 37 years, occ : Teacher ]
]
5] Mrs. Rashida Faheem Ansari ]
Nee Rashida Mehmood Khan ]
Age 34 years, Occ : housewife ]
]
6] Hasan Ali Mehood Ali Khan ]
Age 44 years, occ : Service ]
]
7] Sajid Mehmood Pathan Khan ]
Age 34 years, Occ : Service ]
]
All residing at R/at : Room No.201, ]
A/Wing, Basera Apt, ]
Opp Sagar Tower, S. V. Road, ]
Jogeshwari (W), Mumbai - 400102 ]..... Respondents.
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Ms. Amani Khan a/w Ms. Shipra Tanna for the Petitioner.
Mr. V B Konde-Deshmukh, APP for the Respondent No.1/State.
Ms. Yogita Joshi for Respondent Nos.2 to 7.
Petitioner is present through Video Conferencing.
CORAM : S. S. SHINDE,
N. J. JAMADAR, JJ
DATE : 06th August 2021
ORAL JUDGMENT : (PER S. S. SHINDE, J)
1 Rule. Rule made returnable forthwith and heard with the consent
of the learned counsel for the parties.
2 This Petition is filed by the Petitioner, who is the original
informant, for the following substantive relief :-
(a) This Hon'ble Court be pleased to issue an appropriate
writ order, direction or any other appropriate order
thereby quashing and setting aside case number
2816/PW/09 pending before the 65th Metropolitan
Magistrate at Andheri Mumbai, u/s 498(A) and 34 of
IPC arising out of FIR168/2009 dated 23.05.2007 &
holding the same liable to be quashed and set aside in
the interest of justice, equity and good conscience."
3 The Petitioner is present for interaction through video
conferencing. She is identified by her advocate. We have interacted with the
Petitioner through video conferencing and ascertained whether it is her
voluntary act to file this Petition and pray for quashing the proceedings
pending before the 65th, Metropolitan Magistrate, Andheri, Mumbai. The
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Petitioner stated that it is her voluntary act without any coercion to approach
this Court by way of this Petition and pray therein for quashing the impugned
FIR and the aforesaid proceedings pending before the 65 th, Metropolitan
Magistrate, Andheri, Mumbai.
4 The Petitioner has filed the affidavit in support of this Petition.
Paragraph Nos. 2 to 6 of the affidavit of Petitioner read as under :-
"2 I say that I am the First Informant in the FIR 168/2009
dated 23.05.2009 registered in Oshiwara Police Station
and later on Charge-sheet was filed. The respondent
no.2 to respondent no.6 are all accused in the case
number 2816/PW/09 pending before the 65th
Metropolitan Magistrate at Andheri. I say that
respondent no.5 Hasan Ali Mehmood Ali Khan is my
former Husband and rest are my in-laws.
3 I say that I am currently residing at the above-mentioned
address with my two children Mss Bushra Hsanali aged
14 years & Master Abdul Ahad 12 years. I retain custody
of both the children.
4 I say that I have received a Demand Draft dated
19.11.2019 of amount INR 5,12,786 belonging to Union
Bank Jogeshwari West, Mumbai drawn in my favor as a
one-time settlement amount in pursuant of the
settlement.
5 I say that I am already divorced and there are no other
pending proceedings except 01/DV/2010 for which I
have already given my no objection to withdraw the said
proceedings. The court was vacant on the last date and
therefore that case will be withdrawn on the up-coming
court date.
6 I say that I have no claims to make from the respondents
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of this Writ Petition and I wish to concentrate on my life
and well-being as well as the well-being of both my
children and therefore I have filed this Writ Petition by
my own free will in order to quash and set aside case
number 2816/PW/09 pending before the 65th
Metropolitan Magistrate at Andheri."
5 The learned counsel appearing for the Respondent Nos.2 to 7
submits that the Respondent Nos.2 to 7 have no objection for quashing the
impugned FIR and the aforesaid proceedings pending before the 65 th,
Metropolitan Magistrate, Andheri, Mumbai and allowing this Petition in terms
of prayer clause (a).
6 The parties have amicably settled the dispute and the Petitioner
stated that divorce has already taken place between her and Petitioner - Husen
Ali Khan, and therefore, she is not interested in continuing the aforesaid
proceedings i.e. Case No.2816/PW/09, pending before the the 65 th,
Metropolitan Magistrate, Andheri, Mumbai arising out of FIR No.168 of 2009
registered with Oshiwara Police Station.
7 Since the Petitioner, who is the first informant, is not interested in
prosecuting the Case No.2816/PW/09, pending before the the 65 th,
Metropolitan Magistrate, Andheri, Mumbai arising out of FIR No.168 of 2009
registered with Oshiwara Police Station, no fruitful purpose will be served by
continuing the further proceedings in Case No.2816/PW/09, pending before
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the 65th, Metropolitan Magistrate, Andheri, Mumbai arising out of FIR No.168
of 2009 registered with Oshiwara Police Station.
8 The Supreme Court in the case of Giansingh v. State of Punjab
and Another1 has held that, the criminal cases having overwhelmingly and
predominatingly civil flavour stand on a different footing for the purposes of
quashing, particularly the offences arising from commercial, financial,
mercantile, civil, partnership or such like transactions or the offence arising out
of matrimony relating to dowry, etc. or the family disputes where the wrong is
basically private or personal in nature and the parties have resolved their
entire dispute. In this category of cases, the High Court may quash the criminal
proceedings if in its view, because of the compromise between the offender and
the victim, the possibility of conviction is remote and bleak and continuation of
the criminal case would put the accused to great oppression and prejudice and
extreme injustice would be caused to him by not quashing the criminal case
despite full and complete settlement and compromise with the victim. It is
further held that, as inherent power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with the guideline engrafted in
such power viz.: (I) to secure the ends of justice, or (ii) to prevent abuse of the
process of any court.
9 Since, in view of the amicable settlement, the Petitioner is not
1 2012 (10) SCC 303
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going to support the prosecution case, continuation of the further proceedings
in Case No.2816/PW/09, pending before the the 65th, Metropolitan Magistrate,
Andheri, Mumbai arising out of FIR No.168 of 2009 registered with Oshiwara
Police Station would tantamount to the abuse of the process of the Court.
10 In the light of the discussion in the foregoing paragraphs, in order
to secure the ends of justice and to prevent the abuse of process of the Court,
the Writ Petition deserves to be allowed. Accordingly the Writ Petition is
allowed in terms of prayer clause (a). Rule made absolute in the above terms.
The Writ Petition stands disposed of.
[N. J. JAMADAR, J] [S. S. SHINDE , J]
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