Bombay High Court
Prakash Arun Tupe And Anr vs The State Of Maharashtra And ... on 3 March, 2021
Bench: V.K. Jadhav, M. G. Sewlikar
1 CRI WP 1654.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
922 CRIMINAL WRIT PETITION NO.1654 OF 2020
PRAKASH ARUN TUPE AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS.
...
Advocate for Petitioners : Dr. Tawshikar Swapnil D.
APP for Respondents : Mr. S J Salgare
Advocate for Respondents 2,3 : Mr. Girish Rane
...
CORAM : V.K. JADHAV & M. G. SEWLIKAR, JJ.
Dated: March 03, 2021
...
PER COURT :-
1. Heard fnalll with the consent of parties, at
admission stage.
2. This is about quashing of the proceedings.
Respondent no.2 had fxed marriage of his daughter
respondent No.3 with a bol from his communitl.
Petitioner No.1 and respondent no.3 herein fallen in love
with each other, and, in consequence thereof,
respondent no.3 left the house and joined companl of
the petitioner no.1. Both of them went to the State of
Madhla Pradesh and performed marriage there.
Meanwhile, respondent no.2 has lodged the complaint in
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the concerned police station alleging therein that his
daughter respondent no.3 is minor and that she was
taken awal from his lawful custodl bl the petitioners.
On the basis of his complaint, crime no.72 of 2018 came
to be registered in the concerned police station. After
completion of the investigation, concerned police station
has submitted the charge-sheet before the Court and
now the case bearing Special case (POCSO) no.91 of
2020 came to be registered for the offences punishable
under sections 363, 366, 366-A, 342 read with section
34 and section 11 (4) and 12 of the Protection of
Children from Sexual Offences Act, 2012.
3. Learned counsel for the petitioners submits that,
meanwhile, petitioner no.1 and respondent no.3 have
also approached the Famill Court bl fling two separate
petitions. Petitioner no.1 has fled petition for restitution
of conjugal rights, whereas, respondent no.3 has fled
petition for nullitl of marriage. However, both of them
thereafter approached to the Famill Court bl fling a
joint petition for a decree of mutual divorce. Learned
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3 CRI WP 1654.2020.odt
counsel submits that initialll there was a controversl
about the actual date of birth. Date of birth of
respondent no.3 on record was indicating that she is
major, whereas respondent no.2-father was claiming
some different date of birth, which was indicating that
respondent no.3 was minor at the time of alleged
incident. However, said controversl thereafter resolved
and parties have accepted the date of birth of
respondent no.3 as per the record.
3. Learned counsel appearing for respondent no.3
submits that in view of passing of divorce decree bl
mutual consent bl the Famill Court in Petition No.A-
347 of 2019, parties have now decided to settle the
dispute amicabll and respondent no.3 has no objection
to grant relief as claimed in the praler clause 'B' of the
present criminal writ petition. Learned counsel for
respondent no.2 and respondent no.3 have fled
affdavits to that effect on record. Learned counsel Mr.
Rane appearing for respondent nos. 2 and 3 submits
that respondent nos.2 and 3 are present in the court.
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4 CRI WP 1654.2020.odt
4. In a case of Parbatbhai Aahir alias Parbatbhai
Bhimsinhbhai Karmur and ors Vs. State of Gujarat
and another reported in AIR 2017 Supreme Court 4843,
the Supreme Court in paragraph no.15 of the Judgment
has laid down broad principles which emerge from the
precedents on the subject and summarized in the
following propositions :-
"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 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;
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5 CRI WP 1654.2020.odt
(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 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 (ix) above. 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."
5. In clause no.(v) the proposition is summarized that
the decision as to whether a complaint or FIR should be
quashed on the ground that the offender and victim
have settled the dispute, revolves ultimatell on the facts
and circumstances of each case and no exhaustive
elaboration of principles can be formulated. In clause
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no.(ix) the Supreme Court has also considered that in
such a case, High Court mal quash criminal
proceedings if in view of the compromise between the
disputants, the possibilitl of a conviction is remote and
the continuation of a criminal proceeding would cause
oppression and prejudice. The Supreme Court in clause
no.(x) has carved out an exception to the principles set
out in the preposition (viii) and (ix) above pertaining to
the economic offence and economic well being of the
State. However, present case does not fall in the said
categorl.
6. In the instant case, it appears that petitioner no.1
and respondent no.3 fallen in love with each other and,
thel jointll left their respective houses and performed
marriage. It further appears that even respondent no.2-
father has also accepted the date of birth of respondent
no.3-(daughter) as per the offcial record, and, in view of
the same, respondent no.3 being a major girl, could
have taken decision about her marriage on her own.
Apart from this, the reasons best known to the parties,
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petitioner no.1 and respondent no.3 now obtained a
decree of divorce mutualll. In view of the same, the
possibilitl of a conviction in the criminal case pending
before the Court is remote and continuation of the
proceeding would be the abuse of the court process.
Hence, we proceed to pass the following order.
ORDER
i. Writ Petition is herebl allowed in terms of
praler clause 'B'.
ii. Writ Petition accordingll disposed off.
( M. G. SEWLIKAR, J. ) ( V.K. JADHAV, J. )
...
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