Bilal Shaikkh Adam Hazu vs The State Of Maharashtra And Anr
2021 Latest Caselaw 5803 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPLICATION NO.233 OF 2021

Bilal Shaikkh Adam Hazu                                                 ]
Age : 32 years, Occ : Accountant                               ]
R/o Room No.527, Andhra                                        ]
Association, S.M.D. Road,                                      ]
Opp : Antop Hill Post Office, Wadala                           ]
(East), Mumbai - 400 037                                       ]..... Applicant.

       versus

1]     The State of Maharashtra                                ]
       (At the instance of Colaba Police                       ]
       Station, Mumbai)                                        ]
                                                               ]
2]     Sabnam Salauddin Shaikh                                 ]
       Age : 31 years, Occ : Pvt. Service                      ]
       R/at Kamal Mansion, Room                                ]
       No.53, 3rd Building, Near Radio                         ]
       Club, Colaba, Mumbai - 400 005                          ]..... Respondents.

Mr. Ritesh Ratnam for the Applicant.
Mr. V B Konde Deshmukh, APP for the Respondent/State.
Mr. Ateet Shirodkar a/w Mr. Rajeev Agarwal for Respondent No.2.

                                CORAM :     S. S. SHINDE,
                                            MANISH PITALE, JJ
                                Reserved on :      24th March 2021
                                Pronounced on : 31st March 2021.


JUDGMENT ( PER S S SHINDE, J.)

1 Rule. Rule made returnable forthwith and heard with the consent

of the learned counsel appearing for the parties.

2 The Applicant has filed this Criminal Application for the following

substantial relief :-

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      "(a)    This Hon'ble Court be pleased to quash and set aside the

C.R. No.161 of 2020 dated 27.11.2020 registered at Colaba Police Station, District Mumbai for offences punishable under sections 354, 354(D), 506(2), 509, 500 of the Indian Penal Code, 1860 and under Sectin 67 of the Information Technology Act.

3 The Applicant herein has been arraigned as an accused in the sasid

CR No.161 of 2020 dated 27/11/2020 registered at Colaba Police Station,

Mumbai for the offences punishable under sections 354, 354(D), 506(2), 509

and 500 of the Indian Penal Code and under Section 67 of the Information

Technology Act at the instance of Respondent No.2 herein. It is submitted that

the 2nd Respondent got acquainted with the Applicant five years prior to the

alleged incident while she was studying in the Elphinstone College. They used

to meet each other regularly and developed an intimacy and love between

them. Thereafter Applicant proposed the 2 nd Respondent for marriage and, the

2nd Respondent gave her consent for the same. Thereafter the Applicant took

the 2nd Respondent to one Hotel-Room at Panvel, and since the 2 nd Respondent

was in love with the Applicant, she has no reason to doubt about the intention

of the Applicant and she allowed him to take some intimate photos of both

from his mobile. When she enquired about the intention behind snapping such

photos by the Applicant, she was told that he will delete the said photographs

from the mobile. As the 2nd Respondent has faith in the Applicant, she did not

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enquire much about the same. It is alleged that when the 2 nd Respondent

started asking the Applicant about the marriage and further started insisting to

meet his family members, the Applicant avoided the same on one pretext or

the other, pursuant to which the quarrels started taking place between them. It

is alleged that thereafter the Applicant started threatening the 2 nd Respondent

to him, however, the 2nd Respondent did not meet him and, further she stopped

receiving calls of the Applicant. It is alleged that the Applicant started

defaming the 2nd Respondent before her friends over phone by giving false and

defamatory information in respect of the 2 nd Respondent. The 2nd Respondent

informed about the said harassment at the hands of the Applicant to her elder

sister and brother in law. Thereafter her elder sister advised her not to meet

the Applicant at all. It is further alleged that on 26/11/2020, the Applicant

had kept the aforesaid intimate photographs of the 2 nd Respondent and the

Applicant on his mobile status. In view of this, as stated herein above, the 2 nd

Respondent has lodged the impugned FIR at Colaba Police Station against the

Applicant.

4 After filing the impugned FIR, the Applicant came to be arrested

on 30/11/2020 and was released on bail on 04/12/2020.

5 It is submitted by the learned counsel appearing for the parties

that due to intervention of the family members and well wishers, the parties

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have settled their dispute amicably. The learned counsel appearing for the

Applicant submits that, without entering upon the merits of the case, this Court

may allow this Criminal Application on the basis of the settlement arrived at

between the Applicant and the 2nd Respondent.

6 The learned counsel appearing for the 2nd Respondent submits that

it is the voluntary act of the 2nd Respondent to arrive at settlement and give her

consent for quashing the impugned FIR. He further submits that in support of

the said settlement, the 2nd Respondent has also filed her affidavit in the

Criminal Application.

7 The 2nd Respondent was present before this Court on 24/03/2021

when the matter was heard. She was identified by her advocate. When we

interacted with her, she stated that she has filed her affidavit on her own will,

without any coercion or pressure. It is stated therein that she has no objection

to the prayer of the Applicant being granted. In paragraphs 3 to 8 of the

affidavit of consent, the 2nd Respondent has stated thus :-

"3 That I say that, the Applicant and Respondent No.2 were having a love affair and due to temperamental difference they have parted ways and the instant FIR came to be filed due to emotional outbursts and out of rage and anger.

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      4      That I further say that due to intervention of the senior

family members of the Applicant and the Complainant and the well-wishers of the Applicant and the Complainant, the disputes between the Applicant and the answering Respondent No.2 has been settled amicably and they do ot harbor any ill-feeling towards each other.

5 That I say that the instant C.R. is out-come of the emotional outbursts of the deponent and the parties have amicably resolved all the disputes between them. That the Applicant and Respondent No.2 are of young age and unmarried and want to move ahead in life wihout interfering in the life of each other. That the pendency of the said FIR will create hindrances in the smooth sailing of their life.

6 That I say that in view of the aforesaid settlement, no prejudice would be caused to any one if the instant F.I.R. is quashed.

7 That I say that on the contrary serious prejudice would be caused to the Applicant and Respondent No.2 if the instant F.I.R is not quashed.

8 That in view of the aforesaid submission made by the answering respondent in the instant reply affidavit, this Hon'ble Court may kindly be pleased to quash the F.I.R.

bearing 161 of 2020 registered with Colaba Police Station dated 27.11.2020 u/s 354, 354(D), 506(2), 509, 500 of the Indian Penal Code, 1860 and u/s. 67 of

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Information and Technology Act."

8 Looking to the serious nature of allegations made against the

Applicant in the impugned FIR, this Court by order dated 17/03/2021

directed the Applicant to file his undertaking, and it is made clear that, unless

an undertaking is filed by the Applicant that the posts on whatsapp are deleted

and the photographs of Respondent No.2 are returned to her and henceforth,

the Applicant will not indulge into such activities, this Court will not entertain

his prayer for quashing the FIR.

9 Pursuant to the directions given by this Court vide order dated

17/03/2021, the Applicant has filed his Affidavit-Cum-Undertaking dated

20/03/2021. In paragraphs 2 to 6 of his undertaking, the Applicant has stated

thus :-

"2 That I say that in compliance of the order dated 17/03/2021 passed by this Hon'ble Court in captioned application, the Applicant is filed the instant affidavit- cum-undertaking.

3 That I say that after the registration of the instant F.I.R., the applicant was arrested and the mobile phone of the Applicant was seized by the Investigating Agency and all the alleged incriminating photographs have been deleted from the mobile phone by the Investigating Agency. That I further say that thereafter the learned Magistrate vide its order dated 04/03/2021 was pleased to direct the

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investigating agency to return the aforesaid mobile phone to the Applicant. Annexed hereto and marked as Exhibit "1" is a copy of the order dated 04.03.2021.

4 That I further say that now the Applicant is not in possession of any photographs of the respondent No.2/Complainant in any form i.e. digital or hard copy.

5 That I further say that in future the Applicant will not, in any manner, disturb or interfere with the life of the respondent No.2/complainant.

6 That I further say that in future the Applicant will never indulge in any illegal and unlawful activities."

10 The learned counsel appearing for both the parties submit that

both the parties have voluntarily agreed to settle the dispute and there is no

coercion, undue influence or force upon them for arriving at the settlement. It

is also submitted that both the parties have amicably resolved/settled the

dispute and decided to seek quashing of impugned FIR by this Criminal

Application. The 2nd Respondent has also filed the affidavit in support of the

said settlement. The learned counsel appearing for the Applicant submitted

that by filing undertaking, the Applicant has assured this Court that during the

course of investigating, the investigating agency has deleted all the alleged

incriminating photographs of the 2 nd Respondent from his mobile, and that the

Applicant will not in any manner, disturb or interfere with the life of 2 nd

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Respondent and wil not indulge in any illegal and unlawful activities.

11 The Supreme Court in the case of Giansingh v. State of Punjab

and Another1 has held that, 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 resolves 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.

12 In view of settlement arrived at between the parties, no fruitful

purpose will be served by continuing the further investigation in the FIR being 1 2012 (10) SCC 303

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C R No.161 of 2020 registered at Colaba Police Station, Mumbai by the 2 nd

Respondent against the Applicant for the offences punishable under Section

354, 354(D), 506(2), 509, 500 of IPC.

13 In the light of discussion in foregoing paragraphs, it is abundantly

clear that Respondent No.2 is not going to support the allegations made

against the Applicant in the impugned FIR. The further continuation of

investigation in the impugned FIR being CR No.161 of 2021 would tantamount

to abuse of the process of the Court. Since the 2 nd Respondent by way of filing

her affidavit has clearly stated that, she is not interested to pursue the

allegations made in the impugned FIR, the chances of conviction of the

Applicant would be bleak and remote.

14 For the reasons stated herein above, in order to secure the ends of

justice and to prevent further abuse of the process of the concerned court, the

Criminal Application deserves to be allowed and accordingly the same is

allowed in terms of prayer clause (a). Rule is made absolute to the above

extent and the Criminal Application stands disposed of accordingly.

[MANISH PITALE, J]                                        [S. S. SHINDE , J]




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