Dr. Pravin Manohar Panchal vs The State Of Maharashtra And Anr
2021 Latest Caselaw 734 Bom

           Digitally
           signed by
           Vishwanath
                                                        1/9                        22-APL-370-2020 (J).doc
Vishwanath S. Sherla
S. Sherla  Date:
           2021.01.22
           18:57:46
           +0530
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPLICATION NO. 370 OF 2020

            ABC                                                        ...Applicant

                     Versus

            1.       The State of Maharashtra
                     Through Chichvad Police Station,
                     Pune.

            2.       XYZ                                               ...Respondents
                                                         ...
            Appearances-

            Mr. Ajit M. Savagave, Advocate for Applicant.
            Mr. M.G. Bagkar, Advocate for Respondent No. 2.
            Smt. A.S. Pai, APP for State.
                                                ...

                                               CORAM : S. S. SHINDE &
                                                       MANISH PITALE, JJ.

DATE : JANUARY 13, 2021.

JUDGMENT [PER S.S. SHINDE, J.]:

1. At the outset it is required to be noted that since the allegations

against the applicant are in respect of the alleged sexual assault and 2 nd

respondent is victim, the identity of the Applicant and Respondent No. 2

needs to be concealed, therefore, the Applicant is referred to as "ABC" and

Respondent No. 2 as "XYZ". The Registry is directed to maintain the record

accordingly.

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2. This criminal application is filed taking recourse to Section 482

of Code of Criminal Procedure, challenging the first information report dated

24th February, 2020 registered vide C.R. No. 0052 of 2020 with Chinchvad

Police Station, Pune, for the offences punishable under sections 376, 313,

323 and 504 of the Indian Penal Code, 1860 (for short 'IPC').

3. Background facts for filing the present application are stated as

under:-

It is the case of the applicant that, he is doctor by profession and

there are no criminal antecedents. At the instance of Respondent No. 2 the

FIR came to be registered on 24th February 2020, vide C.R. No. 0052 of 2020

with Chinchvad Police Station, Pune, for the offences punishable under

sections 376, 313, 323 and 504 of IPC. It is stated in the said FIR that since

year 2011, Respondent No. 2 is residing at Pune and working as Residential

Medical Officer in Seven Orange Hospital. Her friend namely Bhagyashree

Shelke was taking treatment at Lokmanya Hospital, Chinchvad and at that

time she acquainted with the accused. Thereafter, friendship developed

between them and they were regularly on talking term. It is further alleged in

the FIR that the Applicant under the pretext of marriage had sexual

intercourse with her. On some occasions said intercourse was without her

consent and against her will. The Respondent No. 2 was pregnant in the year

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2019 and the applicant was instrumental to have forceful abortion. It is

alleged that the applicant supplied pill and abortion had taken place at the

instance of the applicant.

4. It is the case of the applicant that he has never committed

alleged offences as alleged in the FIR. As per the contents of the FIR, it is

apparent that it was the 'consensual sex' and therefore, ingredients of Section

375 of IPC would not get attracted and consequently alleged offence is not

disclosed. It is further the case of the applicant that it is not the case of the

informant that offence of miscarriage is committed without her consent and

therefore, on that count ingredients of Section 313 of IPC would not get

attracted against the applicant. It is stated that after lodging the FIR, the

informant approached the Respondent No. 1, and respondent No. 1 on

affidavit stated that due to quarrel and anger she lodged the report and now

she withdrew her allegations against the applicant. Respondent No. 2 now

decided not to proceed further to prosecute the allegations made in the

impugned FIR and therefore, further continuation of investigation of the

allegations in the FIR would be exercise in futility.

5. Learned counsel appearing for the Applicant invites our attention

to the allegations in the FIR and also to the averments in the affidavit filed by

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Respondent No. 2 and submits that since the applicant and Respondent No. 2

have amicably settled the dispute, this Court may allow the present

application. In support of aforesaid submissions, he pressed into service

exposition of law in the case of Pramod Suryabhan Pawar Versus State of

Maharashtra and Another1 and Dhruvaram Murlidhar Sonar (Dr.) Versus

State of Maharashtra and Others2. He further submits that even on merits an

alleged offences are not disclosed and therefore, impugned FIR deserves to

be quashed.

6. On the other hand, learned APP invites our attention to the

allegations in the FIR and submits that there are serious allegations made

against the applicant in the FIR. The applicant has not only committed

offence punishable under Section 376 but even under Section 313 of the

IPC. It is submitted that outcome of the impugned FIR has great impact upon

the society, therefore, keeping in view the exposition of law by the Hon'ble

Supreme Court in the case of Gian Singh Vs. State of Punjab 3, Parbatbhai

Aaahir @ Parbatbhai Bhimsinhbhai Karmur And Ors Versus State of Gujarat

And Anr4 and State of M.P. Vs.Laxmi Narayan and Ors5, the prayer for

quashing FIR may not be entertained.

1    2019 DGLS (SC) 1086
2    2018 DGLS (SC) 1351
3    (2012) 10 SCC 303
4    (2017) 9 SCC 641
5    (2019) 5 SCC 688

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7. We have given careful consideration to the rival contentions.

With the able assistance of learned counsel appearing for the parties, we have

carefully perused the allegations in the FIR. It is contended by the applicant

that alleged sexual intercourse was 'consensual sex', cannot be accepted as

undisputed position. The allegations in the FIR prima facie would show that

on certain occasions said alleged sexual assault was without consent and

against will of Respondent No. 2. In the impugned FIR apart from allegations

which would attract ingredients of Section 375 of IPC there are serious

allegations made against the applicant that the applicant gave pills to

Respondent No. 2 for abortion. The relevant portion of the allegations made

against the applicant in the FIR is as under:-

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'kkfjjhd laca/kkph ekx.kh dsyh] rlsp R;kl eh d/kh udkj fnY;kl rks

eyk ekjgk.k ns[khy dfjr vls- tqu 2019 e/;s izfo.klkscr 'kkfjjhd

laca/kkeqGs eh xjksnj gksrs- rsOgk izfo.k ;kus eyk vc'kZu gks.;kP;k

xksG;k [kk;yk fnY;k gksR;k R;keqGs gkWLVsyoj vkY;kuarj ekÖ;k tkLr

iksVkr nq[kk;yk ykxys- rsOgk eh izfo.kyk Qksu dsyk vlrk rks ekÖ;k

gksLVsyP;k [kkyh vkyk o eh R;kP;k xkMhr clys- vkEgh cjkp osG

Fkkacyks rjhns[khy ek>s iksVkr nq[k.ks Fkkacys ukgh- R;keqGs izfo.k eyk

LikbZu jksM eks'kh ;sFks R;kpk fe= fuys'k vf/kdkjh ;kP;k fDyfudyk

?ksoqu xsyk- R;kfBdk.kh dkekojhy ulZ gksR;k] rlsp fe=kP;k oMhykauh

vkEgkyk ikfgys o izfo.kyk gh dks.k vkgs] vls fopkjys rsOgk R;kus

Bhagyawant Punde 6/9 22-APL-370-2020 (J).doc

ekÖ;k ekekph eqyxh vkgs] fryk =kl gksr vlY;kus bdMs ?ksoqu vkyks

vkgs vls lkafxrys gksrks- R;kuarj ek>s vWc'kZu >kkys-

Therefore, it is abundantly clear that alleged offences are

disclosed punishable under Section 376 and 313 of IPC. There cannot be

slightest doubt that the outcome of the impugned FIR would have impact

upon public. Therefore, keeping in view the exposition of law by the

Supreme Court in the case of Gian Singh (supra), the prayer of the applicant

and Respondent No. 2 to quash the impugned FIR on the basis of alleged

amicable settlement cannot be acceded to.

8. The Hon'ble Supreme Court in the case of Gian Singh (supra)

held thus:-

57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. 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. In what cases power to quash the criminal proceeding or complaint or F.I.R may be

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exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victims family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of

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conviction is remote and bleak and continuation of criminal case would put 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. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding. [Underlines added]

9. The law laid down in the case of Gian Singh (supra) has been

further reiterated in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai

Karmur (supra) and State of M.P. Vs.Laxmi Narayan and Ors (supra). This

Court had occasion to deal with the similar set of allegations in the FIR in the

case of Chirag Sundarlal Gupta Versus The State of Maharashtra & Anr 6,

wherein it was alleged that the Petitioner therein by promising the

employment to Respondent No. 2 in the film industry and under the pretext

of marriage committed sexual assault on Respondent No. 2 and it was also

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alleged that there was forceful abortion at the gun point by the Petitioner

therein. This Court after considering the documents placed on record,

rejected the prayer of the Petitioner for quashing the FIR.

10. The facts of the present case stands on similar footings vis a vis

the said case i.e. Chirag Sundarlal Gupta Versus The State of Maharashtra &

Anr decided by this Court. In the present case, allegations in the FIR not only

disclose the offence punishable under Section Section 376 of IPC, but also

punishable under Section 313 of IPC. Therefore, the FIR cannot be quashed

on the basis of amicable settlement or on merits. Hence, the application

stands rejected.

11. The observations made herein above are prima facie in nature

and confined to the adjuration of the present application only. The rejection

of this application shall not be construed as an impediment to avail of an

appropriate remedy as available in law, in the event of filing charge sheet by

the investigating officer.

      ( MANISH PITALE, J.)                                   (S. S. SHINDE, J.)




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