Bombay High Court

Nitin Kanhuji Tirmale And Others vs The State Of Maharashtra And ... on 26 August, 2021

Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni

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                                    -1-

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

              919 CRIMINAL APPLICATION NO. 1812 OF 2021

                 NITIN KANHUJI TIRMALE AND OTHERS
                              VERSUS
              THE STATE OF MAHARASHTRA AND ANOTHER

                                 WITH
                  CRIMINAL APPLICATION NO. 1664 of 2020

               SHITAL W/O DEEPAK DOLAS AND ANOTHER
                                 VERSUS
             THE STATE OF MAHARASHTRA AND ANOTHER
                                    .....
            Advocate for Applicants : Ms. Ashwini A. Lomte h/f
                         Mr. Sudarshan J. Salunke
              APP for Respondent-State : Mr. Anand S. Shinde
            Advocate for Respondent No.2 : Mr. S. U. Choudhari
                                     .....

                               CORAM : V. K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

DATED : 26th AUGUST, 2021

PER COURT:-

1. Learned counsel for the applicants, on instructions, seeks

leave to withdraw Criminal Application No. 1664 of 2020. Leave

granted. Criminal Application No. 1664 of 2020 is disposed off as

withdrawn.

2. In Criminal Application No. 1812 of 2021, by consent heard

finally at admission stage.

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3. This application is filed for quashing of the criminal

proceedings bearing R.C.C. No. 301 of 2021 (The State of

Maharashtra v. Nitin and others), which is pending before the

Judicial Magistrate, First Class, Aurangabad, on the basis of the

settlement arrived at between the parties.

4. Learned counsel for the applicants submits that applicant

no.1 and respondent no.2 have arrived at an amicable settlement

and the terms of settlement are also worked out. Applicant no.1

has agreed to pay certain lump sum amount to respondent no.2

towards one time maintenance and the parties have agreed to

either withdraw or settle the criminal proceedings filed against

each other.

5. Learned counsel for respondent no.2-informant submits that

applicant no.1 has initiated a divorce proceeding in the Family

Court at Aurangabad. However, with the intervention of the

relatives, the elders and the Marriage Counselor of the Family

Court at Aurangabad, applicant no.1 and respondent no.2 have

agreed to convert the petition bearing No. A-150 of 2020 pending

before the Family Court into a petition for divorce by mutual

consent. Learned counsel for respondent no.2, on instructions from

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respondent no.2 who is present in person before the Court, submits

that the said petition has now been converted in a petition for

divorce by mutual consent. Learned counsel for respondent no.2

submits that applicant no.1 has deposited Rs.2,00,000/- out of the

agreed amount of Rs.4,00,000/- towards permanent alimony and

upon quashing of the criminal proceedings, agreed to deposit the

remaining amount before the Family Court before passing of the

decree of divorce. Respondent no.2, in her affidavit, has also stated

about the other terms of the settlement.

6. We have also heard learned APP for the respondent State.

7. In the case of Gian Singh vs. State of Punjab and others,

reported in (2012) 10 SCC 303, the Supreme Court in para 48 has

quoted para 21 of the judgment of the five-Judge Bench of the

Punjab and Haryana High Court delivered in Kulwinder Singh v.

State of Punjab (2007) 4 CTC 769. The five-Judge Bench of the

Punjab and Haryana High Court, in para 21 of the judgment, by

placing reliance on the judgments of the Supreme court in the

cases of Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551,

State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, State of

Karnataka v. L. Muniswamy (1977) 2 SCC 699, Simrikhia v. Dolley

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Mukherjee (1990) 2 SCC 437, B.S. Joshi v. State of Haryana

(2003) 4 SCC 675 and Ram Lal v. State of Jammu and Kashmir

(1999) 2 SCC 213, has framed the guidelines for quashing of the

criminal proceeding on the ground of settlement. Clause (a) of the

said guidelines is relevant which is reproduced herein below :

"a. Cases arising from matrimonial discord, even if other offences are introduced for aggravation of the case."

8. In case of Parbatbhai Aahir and Ors. Vs. State of Gujrat and

others reported in AIR 2017 SC 4843, in para no.15, the Hon'ble

Supreme Court has summarised the broad principles which emerge

from the precedents for quashing of the proceedings on the basis of

settlement. Para 15 of the said judgment is reproduced herein below:

"15. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :

(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While

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compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar

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transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and above;

(ix) Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

9. In the instant case, the parties have arrived at an amicable

settlement and agreed to end their marital ties permanently. Even

they have converted the marriage petition pending before the

Family Court bearing Petition No. A-150 of 2020 as a petition for

divorce by mutual consent. We have carefully gone through the

affidavit of respondent no.2. It appears that respondent no.2, who

is present in person before the Court, has voluntarily arrived at the

compromise. The terms of the settlement appear to be reasonable

and even applicant no.1 has agreed to pay certain lump sum

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amount to respondent no.2 as permanent alimony.

10. Thus, considering the entire aspect of the case and in terms