Mohsin Mukhtar Shaikh And Anr vs The State Of Maharashtra And Anr
2021 Latest Caselaw 11220 Bom

                                            17-1-CRIWP644-2020.DOC
                                                                      Santosh

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION
                      WRIT PETITION NO. 644 OF 2020

1. Mohsin Mukhtar Shaikh
   Age : 23 years, Address Nawad Bhai
   Galli, Jhula Maidan, Bandra Plot,
   Jogeshwari (East), Mumbai 400 060.
2. Sajid alias Shadab Mohammed Gaus
   Shaikh
   Address - Room No.A/811, Nawab
   Chawl, Colaba Plot, Madarsa Rabbani
   Chawl, Jhula Maidan, Jogeshwari (E),
   Mumbai - 400 060.                                      ...Petitioners
                     Versus
1. The State of Maharashtra
   Through the Public Prosecutor's Office,
   Hon'ble Bombay High Court, Mumbai
2. Mrs. Salma Tayyabali Shaikh
   Age : 32 years, Occupation : Housewife
   Address : Room No.786/2/2, Yusuf Ali
   Chawl, Paanwali Galli, Bandra Plot,
   Jogeshwari (West), Mumbai - 400 060                ...Respondents

Mr. Sameer Sharif, a/w Mr. Suhail Shariff, for the Petitioners.
Ms. Smita Sonawane a/w Ms. Reena Barot, 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.

17-1-CRIWP644-2020.DOC

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.2294/PW/

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

Railway Mobile Court, Andheri, arising out of FIR No.193 of

2016, dated 1st June, 2016, registered at Meghwadi Police

Station, Mumbai, for the offences punishable under Sections

354 and 323 read with 34 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 petitioners and respondent no.2 are the

residents of a slum situated at CTS No.147, Jogeshwari (East),

Mumbai. On 1st June, 2016 a survey was being carried out

under Slum Rehabilitation Scheme. Respondent no.2 resisted

the survey, which was being carried out by the society and

developer and the supporters of the survey forcibly. An

altercation ensued between the rival groups. Respondent no.2

alleged that petitioners nos.1 and 2 charged upon her.

Petitioner no.1 Mohsin caught hold her hand and twisted it.

Petitioner no.2 Sajid pulled her duppata and thereby outraged

her modesty. Respondent no.2 thus lodged report leading to

17-1-CRIWP644-2020.DOC

registration of CR No.193 of 2016 for the offences punishable

under Sections 354 and 323 read with Section 34 of the Penal

Code.

4. The petitioners have approached the Court with the

assertions that the dispute between the petitioners and

respondent no.2 has been amicably resolved. Thus, prosecution

deserves to be quashed and set aside.

5. Mr. Sameer Sharif, the learned Counsel for the petitioners

and Ms. Smita Sonawane, the learned Counsel for respondent

no.2 make a joint statement that the applicants and respondent

no.2 have settled the dispute. Respondent no.2 has filed an

affidavit incorporating her no objection for quashing the said

prosecution.

6. Mrs. Salma Tayyabali Shaikh - respondent no.2, the first

informant, appeared before the Court. She informed the Court

that she has voluntarily settled the dispute with the petitioners.

There is no coercion or duress. She has filed the Affidavit out of

her own volition. She admitted the contents of the affidavit and

execution thereof. She was identified by Ms. Reena Barot, the

learned Counsel for respondent no.2.

7. Paragraphs 2 to 5 of the Affidavit read as under:

"2. I state that the petitioners are my neighbours and known to me from last many years. I say that the said F.I.R.

17-1-CRIWP644-2020.DOC was lodged in the spur of the moment and out of sheer misunderstanding. I say that thereafter, a compromise has been duly affected between me and the petitioners 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.193 of 2016 and charge sheet bearing C.C.No.2294/PW/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 petitioners 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."

8. In the backdrop of the aforesaid submissions, statements

and affirmations in the affidavit, we have perused the material

on record. From the perusal of the first information report, it

becomes abundantly clear that the genesis of the dispute is in

the survey which was being carried out under Slum

Rehabilitation Scheme. One group opposed the survey. The

other insisted for survey. The incident occurred as the husband

of respondent no.2 allegedly resisted the attempts to carry out

the survey, despite opposition of the residents. In the melee,

respondent no.2 was allegedly assaulted and criminal force was

used against her with intent to outrage her modesty. Even if we

take the allegations in the FIR at their face value, we are afraid

to hold that the mental element of intention or knowledge to

17-1-CRIWP644-2020.DOC

outrage the modesty is prima facie made out. To add to this,

respondent no.2 has categorically affirmed that the allegations

were made due to sheer misunderstanding.

9. In the aforesaid view of the matter, the continuation of the

prosecution may turn out to be a futile exercise. Consequent to

settlement, it is very unlikerly that respondent no.2 would

support the prosecution and it would end in conviction. In

contrast, continuation of the prosecution would put the parties

to grave prejudice. 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

1 2012 (10) SCC 303.

17-1-CRIWP644-2020.DOC 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. In the light of the aforesaid exposition of law, reverting to

the facts of the case, it becomes evident that the dispute

between the petitioners and respondent no.2, who are the

residents of the same locality, has been amicably resolved. The

parties have decided to bury the hatchet. Continuation of the

prosecution, in these circumstances, may prove to be counter

productive. Thus, to secure the ends of justice and prevent the

abuse of the process of the Court, it would be expedient to

quash the prosecution being CC No.2294/PW/2016.

12. Hence the following order:

: ORDER :

       (i)     The petition stands allowed.

       (ii)    The proceedings in Case CC No.2294/PW/2016,

pending on the file of the learned Metropolitan

Magistrate, Railway Mobile Court at Andheri,

Mumbai, arising out of FIR No.193/2016 dated 1st

June, 2016, lodged with the Meghwadi Police

Station, stands quashed and set aside.

Rule made absolute in aforesaid terms.

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