Bombay High Court
Shaikh Faraz Shaikh Zahoor And ... vs The State Of Maharashtra And Anr on 30 March, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
(1)
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
978 CRIMINAL WRIT PETITION NO.1402 OF 2017
1. Shaikh Faraz Shaikh Zahoor
2. Shaikh Farzana Shaikh Zahoor
3. Shaikh Zahoor Abdul Sattar
4. Farha Tabraj Siddiqui. Petitioners
Versus
1. The State of Maharashtra
2. Sayyeda Azarabegum Shaikh Faraz Respondents
...
Mr. Joslyn Menezes, Advocate for the petitioners.
Mr. S.S. Dande, A.P.P. for respondent No. 1.
Mr. S.N. Lale Yelwatkar, Advocate for respondent No.2.
...
CORAM : V.K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
DATE : 30-03-2022.
P.C. :
1. Heard fnally with consent at the admission stage.
2. The petitioners / original accused are seeking
quashing of F.I.R. bearing Crime No. 265/2017 registered with
City Chowk Police Station, Aurangabad for the offences
punishable under Sections 498-A, 323, 504, 506 of the
Indian Penal Code and under Section 3 of the Protection of
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Women from Domestic Violence Act and also charge-sheet
bearing R.C.C. No. 538 of 2020 pending before the Judicial
Magistrate, First Class, Aurangabad, on the ground that the
parties have arrived at amicable settlement.
3. Learned Counsel for the petitioners and learned
Counsel for respondent No. 2 submit that initially respondent
No.2 had fled consent affdavit through one Advocate in this
writ petition, however, the said Advocate remained absent
continuously and therefore, by order dated 9 th March 2020 we
have appointed present Counsel to represent respondent No.2
at the expenses of the State. Accordingly, respondent No.2
has fled additional affdavit through the appointed Counsel.
Learned Counsel for the petitioners and respondent No. 2
submit that due to intervention of the relatives the parties
have arrived at amicable settlement and a compromise
purshis to that effect was also submitted before the learned
Judicial Magistrate, First Class. In terms of the said
compromise purshis learned Magistrate disposed of the
proceedings initiated under the provisions of Protection of
Women from Domestic Violence Act bearing PWDVA
No.126/2017. Learned Counsel appearing for the parties
submit that the parties have executed Khulanama and
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translated copy of the said Khulanama is annexed to the
additional affdavit of respondent No. 2. Learned Counsel
appearing for the parties submit that petitioner No.1 -
husband has agreed to pay an amount of Rs. 2,00,000/-
(Rupees Two Lakhs) to respondent No. 2 towards her
permanent alimony and out of the said amount, an amount of
Rs. 1,30,000/- has already paid when the pending matter
before the Magistrate was withdrawn and remaining amount
of Rs. 70,000/- has been paid before fling of this affdavit.
Learned Counsel for respondent No. 2, on instructions,
submits that respondent No.2 has received entire amount of
Rs. 2,00,000/-. Learned Counsel for respondent No. 2
submits that in view of compromise between the parties and
in view of Khulanama executed, respondent No.2 is no more
interested in prosecuting the criminal case.
4. We have also heard learned A.P.P. for the
respondent - State.
5. We are satisfed that the parties have arrived at
amicable settlement voluntarily. As per the contents of
Khulanama, certain amount has been agreed to be paid to
respondent No. 2 towards permanent alimony and also
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maintenance for Iddat period. It appears that respondent
No.2 has received the entire amount.
6. 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 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, has framed the guidelines for
quashing of the criminal proceeding on the ground of
settlement. Para 21 of the said case of Kulwinder Singh is
reproduced by the Supreme Court in para 48 of the judgment
in Gian Singh. Clause 21(a) which is relevant for the present
discussion reads as under :
"21. ..... (a) Cases arising from matrimonial
discord, even if other offences are introduced for
aggravation of the case."
7. In para No.61 of the case Gian Singh (supra), the
Hon'ble Supreme Court 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 quashing a
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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. : (1) 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 FIR may be exercised
where the offender and the 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 fttingly
quashed even though the victim or victim's family
and the offender have settled the dispute. Such
offences are not private in nature and have a
serious impact on society. Similarly, any
compromise between the victim and the 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
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overwhelmingly and predominatingly civil favour
stand on a different footing for the purposes of
quashing, 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 quash 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. 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 the wrongdoer and whether to
secure the ends of justice, it is appropriate that
the criminal case is put to an end and if the
answer to the above question(s) is in the
affrmative, the High Court shall be well within its
jurisdiction to quash the criminal proceeding."
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8. In view of the above and in terms of the ratio laid
down by the Supreme Court in the above-cited case, we
proceed to pass the following order.
ORDER
(i) Criminal Writ Petition is hereby allowed in
terms of prayer clauses [B] and [B-1].
(ii) Criminal Writ Petition is accordingly disposed
of.
(iii) In view of the disposal of Criminal Writ
Petition, Criminal Application No. 6837 of
2017 is also disposed of.
(iv) We quantify the fees of the appointed
Counsel at Rs. 3,000/- (Rupees Three
Thousand) to be paid by the High Court Legal
Services Sub-Committee, Aurangabad.
(SANDIPKUMAR C. MORE, J.) (V.K. JADHAV, J.)
VD_Dhirde
