Tayyabali Usufali Shaikh vs The State Of Maharashtra And Anr
2021 Latest Caselaw 11218 Bom

                                               17-CRIWP643-2020.DOC
                                                                      Santosh

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION


                      WRIT PETITION NO. 643 OF 2020

   Tayyabali Yusufali Shaikh
   Age : 42 years, Address Room
   No.786/2/2/, Near Yasmin Studio,
   Bandra Plot, Jogeshwari (East),
   Mumbai 400 060.                                         ...Petitioner
                     Versus
1. The State of Maharashtra
   Through the Public Prosecutor's Office,
   Hon'ble Bombay High Court, Mumbai
2. Mrs. Shahnaz Hussain Sayyed,
   Age : 48 years, Occupation : Service
   Address : Room No.05, Macchiwala
   Chawl, Pascal Colony, Jogeshwari
   (West), Mumbai - 400 060                           ...Respondents

Ms. Smita Sonawane a/w Ms. Reena Barot, for the Petitioner.
Mr. Sameer Sharif, a/w Mr. Suhail Shariff, for respondent
     no.2.
Mrs. S. D. Shinde, APP for the State/Respondent no.1.
Respondent no.2 present.

                                   CORAM: S. S. SHINDE &
                                           N. J. JAMADAR, JJ.

DATED: 18th AUGUST, 2021.

JUDGMENT:- PER : N. J. JAMADAR, J.

1. Rule. Rule made returnable forthwith and, with the

consent of the Counsels for the parties, heard finally.

2. This petition under Article 226 of the Constitution of India

and Section 482 of the Code of Criminal Procedure, 1973 ("the

Code") is preferred to quash and set aside CC No.3165/PW/

17-CRIWP643-2020.DOC

2016, pending on the file of the learned Metropolitan Magistrate,

Railway Mobile Court, Andheri, arising out of FIR No.194 of

2016, dated 2nd June, 2016, registered at Meghwadi Police

Station, Mumbai, for the offences punishable under Sections

354, 323 and 504 of the Indian Penal Code, 1860 ("the Penal

Code"), at the instance of respondent no.2 - first informant, on

the basis of the settlement of the dispute

3. The petition arises in the backdrop of the following facts:

(a) The petitioner and respondent no.2 are the residents

of slum situated at CTS No.147, Jogeshwari (East), Mumbai. On

1st June, 2016 a survey was being carried out under Slum

Rehabilitation Scheme. Some residents resisted survey. An

altercation ensued between the groups of persons who pressed

for and resisted the survey. The petitioner allegedly abused

respondent no.2, kicked her in the stomach and inappropriately

touched her chest. Respondent no.2 thus approached Meghwadi

Police Station and lodged a report leading to CR No.194 of 2016

for the offences punishable under Sections 354, 323 and 504 of

the Penal Code.

4. The petitioner has approached the Court with a case that,

in the intervening period, the dispute between the petitioner and

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respondent no.2 has been amicably resolved. The latter has no

objection to quash the prosecution.

5. Ms. Smita Sonawane, the learned Counsel for the

petitioner and Mr. Sameer Sharif, the learned Counsel for

respondent no.2 make a joint statement that the dispute

between the petitioner and respondent no.2 has been amicably

resolved and respondent no.2 has sworn an affidavit

incorporating her consent for quashing the prosecution.

6. Mrs. Shahnaz Hussain Sayyed - respondent no.2, the first

informant appeared before the Court. She categorically

submitted that she has decided to resolve the dispute with the

petitioner out of her own volition. There is no coercion or

duress. She has filed the affidavit voluntarily. Respondent no.2

further stated that she had made the allegation of outraging of

modesty against the petitioner due to misunderstanding. Now

the dispute between the petitioner and respondent no.2 has

been settled and, thus, she has no objection to quash the

prosecution. Respondent no.2 is identified by Mr. Sameer

Sharif, advocate for respondent no.2.

7. Paragraphs 2 to 6 of the Affidavit read as under:

"2. I state that the petitioner is my neighbour and known to me from last many years. I say that the said F.I.R. was lodged in the spur of the moment and out of sheer misunderstanding. I say that thereafter, a compromise has

17-CRIWP643-2020.DOC been duly affected between me and the petitioner and we have settled the differences and disputes amicably and for that purpose I am willing to abandon my allegations.

3. I say that I don't want to prosecute or depose against the Petitioner in any Court of law as matter has been amicably settled between us.

4. I say that I do not want to further pursue with the above-mentioned F.I.R. Vide C.R.No.194 of 2016 and charge sheet bearing C.C.No.3165 of 2016. I have no objection, if the above said FIR and charge sheet is cancelled/quashed/withdrawn.

5. I state that by masking this affidavit, I make it clear that, I have no dispute or ill-feeling with/against above- named petitioner and whatever differences/issues expressed in F.I.R. and charge sheet are no more in existence and the issue in the said complaint is clarified, settled and resolved cordially between us.

6. I say that I undertake to make the necessary statement for cancellatiion/quashing/withdrawal of the said F.I.R. and charge-sheet, before the Hon'ble Court as and when required to do so."

8. In the backdrop of the aforesaid submissions, statements

and affirmations in the affidavit, we have perused the material

on record. Evidently, the genesis of the dispute is in the process

initiated for development of slum under the Slum Rehabilitation

Scheme. The alleged altercation occurred at a public place,

where the members of the rival group came face to face. In the

circumstances, the necessary intent or knowledge to outrage the

modesty does not seem to have been, prima facie, made out.

Moreover, respondent no.2 has categorically affirmed that the

allegations were made out of sheer misunderstanding.

9. In the backdrop of the fact that the parties have settled

the dispute, continuation of the prosecution would be a futile

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exercise. It is very unlikely that respondent no.2 would support

the prosecution and it will end in conviction. On the contrary,

the continuation of the prosecution, where the parties have

amicably resolved the dispute, may cause grave prejudice to the

parties. It would also amount to abuse of the process of the

Court.

10. A profitable reference in this context can be made to the

judgment of the Supreme Court in the case of Gian Singh vs.

State of Punjab and another1, wherein the Supreme Court has

observed as under;

"61. ........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."

11. Reverting to the facts of the case, it becomes abundantly

clear that the dispute arose over the development of a slum

1 2012 (10) SCC 303.

17-CRIWP643-2020.DOC

rehabilitation scheme. The parties who held different views on

the said matter allegedly clashed. Eventually, the parties have

resolved the dispute. Continuation of the prosecution, in such

circumstances, would serve no purpose except putting

unnecessary burden on the criminal justice system. Therefore,

in order to secure the ends of justice and prevent the abuse of

the process of the Court, we are inclined to allow the petition.

12. Hence the following order:

: ORDER :

       (i)     The petition stands allowed.

       (ii)    The proceeding in CC No.3165/PW/2016, pending on

the file of the learned Metropolitan Magistrate,

Railway Mobile Court at Andheri, Mumbai, arising

out of FIR No.194/2016 dated 2nd June, 2016, lodged

with Meghwadi Police Station, stands quashed and

set aside.

Rule made absolute in aforesaid terms.

       [N. J. JAMADAR, J.]                      [S. S. SHINDE, J.]