Shaikh Munna Shaikh Afsar And ... vs The State Of Maharashtra And ...
2022 Latest Caselaw 2173 Bom

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO. 137 OF 2021

 01 Shaikh Munna s/o Shaikh Afsar;

 02 Shaikh Tofi s/o Shaikh Afsar;

 03 Shaikh Asma w/o Shaikh Tofi;

 04 Shaikh Arif s/o Shaikh Afsar;

 05 Shaikh Seema w/o Shaikh Aref;

 06 Shaikh Afsar s/o Shaikh Imam;

 07 Shaikh Ruksana w/o Shaikh Afsar;

 08 Shaikh Siraj s/o Shaikh Niam;

 09 Shaikh Saynaj w/o Shaikh Siraj                           Applicants


          Versus


 01 The State of Maharashtra,
    through the Principal Secretary,
    Home Department, Mantralaya,
    Mumbai-32.

 02 The Police Inspector,
    Majalgaon City Police Station,
    Majalgaon, Ti. Majalgaon,
    District Beed.

 03 Smt. Shaikh Heena Shaikh Rashid                          Respondents

 Mr. S. M. Shaikh, advocate with Mr. P. S. Magar, advocate for the
 applicants
 Mrs. P. V. Diggikar, APP for Respondents No.1 & 2.
 Mr. Syed Zahed Ali, advocate with Mr. S. D. Kamble, advocate for
 Respondent No.3.




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                               CORAM : V.K.JADHAV AND
                                       SANDIPKUMAR C. MORE, JJ.

                               DATE    : 03rd March, 2022.

 PC :

 1                Heard fnally at admission stage by consent of learned

 Counsel for respective parties.



 2                The applicants-accused are seeking iuashing of First

Information Report No. 07/2021, registered with Majalgaon Police

Station, Ti. Majalgaon, District Beed, for the offences punishable

under Sections 498A, 323, 504 and 506 read with Section 34 of

the Indian Penal Code, as also Criminal proceedings bearing RCC

No. 417/2021, pending before the Judicial Magistrate, First Class,

on the ground that parties have arrived at an amicable settlement.

3 Learned Counsel for the applicants and learned

Counsel appearing for Respondent No.3 submits that the parties

have arrived at an amicable settlement and Respondent No.3 has

also fled affdavit in reply to that effect. The learned Counsel

submit that the parties have arrived at an amicable settlement due

to the intervention of the relatives and elderly persons of the

Society. Both the parties have agreed to get separated by executing

a Khulanama, which is executed on 22.11.2021. In terms of the

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said Khulanama, applicant no.1 and Respondent No.3 have got

separated from each other and relationship between them as

husband and wife came to an end. The learned Counsel further

submits that the applicant no.1 has paid an amount of

Rs.2,75,000/- to Respondent No.3 towards her future

maintenance. He has already given her " meher" in the form of

jewellery/ornaments and the same are in possession of

Respondent No.3.

4 Learned Counsel for Respondent No.3 submits that

Respondent No.3 is not prosecuting her complaint against the

applicants and she has no objection for iuashing of the First

Information Report and the proceedings.

5 We have also heard learned A. P. P. for Respondents

No.1 and 2.

6 We have gone through the allegations made in the

complaint. It appears that the complaint came to be lodged

against 9 accused persons including applicant no.1-husband for

having committed an offence punishable under Sections 498A,

323, 504 and 506 read with Section 34 of the Indian Penal Code.

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The parties have arrived at an amicable settlement. The copy of

the Khulanama is placed before us. It appears that the parties

have arrived at an amicable settlement due to the intervention of

relatives and elderly persons of the society. Further, a care has

also been taken to pay certain amount to Respondent No.3 towards

future maintenance.

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

others, reported in (2012) 10 SCC 303, the Hon'ble Supreme Court,

in para 48, has iuoted para 21 of the judgment of the fve-Judge

Bench of the Punjab and Haryana High Court delivered in

Kulwinder Singh v. State of Punjab (2007) 4 CTC 769 . The fve-

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 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 iuashing of the criminal proceeding on the ground of

settlement. Clause (a) of the said guidelines is relevant which is

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reproduced herein below :

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

8 The Hon'ble Supreme Court, in para No.61 of the

judgment in the case of Gian Singh vs. State of Punjab and others

(supra), has made the following observations:-

"61. The position that emerges from the above discussion can be summarised thus:

The power of the High Court in iuashing 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 iuash the criminal proceeding or complaint or F.I.R may be 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,

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dacoity, etc. cannot be fttingly iuashed even though the victim or victim's 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 iuashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of iuashing, particularly the offences arising from commercial, fnancial, 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 iuash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of 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 iuashing 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

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iuestion(s) is in affrmative, the High Court shall be well within its jurisdiction to iuash the criminal proceeding."

9 In the instant case, considering the fact that the

parties have arrived at an amicable settlement and Khulanama is

also executed between them by taking care of future maintenance

of Respondent No.3, we are satisfed that the parties have arrived

at an amicable settlement voluntarily.

10 In view of the above and in view of the ratio laid down

by the Hon'ble Supreme Court in the afore-cited case, we proceed

to pass the following order:

(i) Criminal Application is hereby allowed in terms of

prayer clause "B".

11 Criminal Application is accordingly disposed of.

  (SANDIPKUMAR C. MORE)                          (V.K.JADHAV)
      JUDGE                                         JUDGE

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