Bombay High Court
Shiva Chanappa Odala vs The State Of Maharashtra And Anr on 22 February, 2023
Bench: Nitin W. Sambre, S. G. Dige
(32)-WP-1366-22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
CRIMINAL APPELLATE JURISDICTION
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
2023.02.24
14:07:11
+0530
WRIT PETITION NO.1366 OF 2022
Shiva Chanappa Odala ..Petitioner
Versus
State of Maharashtra & Anr. ..Respondent
Mr. Vishwanath Patil, for the Petitioner.
Mr. A. R. Kapadnis, APP for the Respondent No.1/State.
Ms. Ilsa Shaikh, Appointed Advocate for Respondent No.2.
CORAM : NITIN W. SAMBRE &
S. G. DIGE, JJ.
DATE : 22nd FEBRUARY, 2023
P.C.
1. The victim since was not traced, same has led to the
filing of the complaint resulting into registration of Crime No.707 of
2021 on 26th November, 2021 for an offence punishable under
Section 363 of the IPC. During the course of investigation, the
prosecution has invoked Section 354 of the IPC and Sections 8 and
12 of the POCSO Act against the present petitioner.
2. This petition is moved by the accused person who is
aged about 19 years and a student seeking quashing by consent. The
victim's mother who is complainant has filed an affidavit on record
through the counsel appointed by this Court and stated that upon
inquiry from the victim she came to know that the victim has called
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the petitioner and has went out and stayed with him without being
intimation to the parents for such period as has been alleged in the
complaint. It is claimed by the complainant that in this background
complaint came to be lodged. It is also stated that alleged offence is
registered because of communication gap between the complainant
and her daughter. It is further claimed that the petitioner had no
intention to kidnap the victim from the lawful custody of the
complainant and as such, the ingredients of Section 363 of the IPC
may not be inferred. It is also stated that the allegation under
Section 354 of the IPC were made out of the frustration as the
victim girl could not be located. In the aforesaid background, the
quashing is sought by consent.
3. This Court has interacted with the complainant and she
has admitted to have executed such an affidavit out of her own free
will after having understood the contents therein in a vernacular
language. We have also requested APP Mr. A. R. Kapadnis to
interact with the complainant so as to verify the contents of the
affidavit.
4. Learned APP Mr. A. R. Kapadnis informs this Court after
interaction with the complainant that the complainant out of her
own free will is extending consent for quashing by consent.
5. Counsel for the petitioner has drawn support from the
Delhi High Court judgment in the matter of Satender Sharma Vs.
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State and Anr. decided on 2nd March, 2016 in Criminal Misc. Case
No.5188 of 2015. According to him, considering the fact that the
complaint was lodged out of the frustration developed by the
complainant having not found her daughter can be quashed, if the
complainant out of her own free will consents for such quashing.
The Delhi High Court has drawn support from the judgment of Apex
Court in the matter of Gian Singh Vs. State of Punjab reported in
(2012) 10 SCC 303 and Narinder Singh Vs. State of Punjab (2014)
6 SCC 466. It is worth to refer to the observations of the Apex
Court in the matter of Gian Singh (supra) and Narinder Singh
(supra), particularly, paragraph 61 and 29 respectively of the said
judgments which reads thus :-
"5. In Gian Singh v. State of Punjab (2012) 10 SCC 303 Apex
Court has recognized the need of amicable resolution of
disputes in cases like the instant one, by observing as under:-
"61. 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 proceedings or
continuation of criminal proceedings 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 criminal case is put to an end and if the answer to
the above question(s) is in the affirmative, the High
Court shall be well within its jurisdiction to quash the
criminal proceedings."
6. The aforesaid dictum stands reiterated by the Apex Court in
a recent judgment in Narinder Singh v. State of Punjab (2014)
6 SCC 466. The relevant observations of the Apex Court in
Narinder Singh (Supra) are as under:-
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"29. In view of the aforesaid discussion, we sum up and
lay down the following principles by which the High
Court would be guided in giving adequate treatment to
the settlement between the parties and exercising its
power under Section 482 of the Code while accepting
the settlement and quashing the proceedings or refusing
to accept the settlement with direction to continue with
the criminal proceedings:
29.1 Power conferred under Section 482 of the Code is
to be distinguished from the power which lies in the
Court to compound the offences under Section 320 of
the Code. No doubt, under Section 482 of the Code, the
High Court has inherent power to quash the criminal
proceedings even in those cases which are not
compoundable, where the parties have settled the
matter between themselves. However, this power is to be
exercised sparingly and with caution.
29.2. When the parties have reached the settlement and
on that basis petition for quashing the criminal
proceedings is filed, the guiding factor in such cases
would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any court. While
exercising the power the High Court is to form an
opinion on either of the aforesaid two objectives.
29.3. Such a power is not to be exercised in those
prosecutions which involve heinous and serious offences
of mental depravity or offences like murder, rape,
dacoity, etc. Such offences are not private in nature and
have a serious impact on society. Similarly, for the
offences alleged to have been committed under special
statute like the Prevention of Corruption Act or the
offences committed by public servants while working in
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that capacity are not to be quashed merely on the basis
of compromise between the victim and the offender.
29.4. On the other hand, those criminal cases having
overwhelmingly and predominantly civil character,
particularly those arising out of commercial transactions
or arising out of matrimonial relationship or family
disputes should be quashed when the parties have
resolved their entire disputes among themselves."
The aforesaid both the observations are relied on by the Delhi High
Court thereby permitting the prayer for quashing of complaint.
6. What can be noticed from the facts of the present case
is, petitioner, a student appears to have been in friendly terms with
the victim girl and it is out of friendship they appear to have stayed
together without there being intimation to the parents of the victim
girl which has prompted the mother of the victim girl i.e.
complainant to lodge a complaint. In the aforesaid background,
what can be noticed is, it will be contrary to the interest of justice to
continue the criminal proceedings against the petitioner, a student
as both the parties equally will be put to hardship, particularly, both
of them decided for quashing by consent on the ground of the
reasons cited in the consent extended in support of the quashing.
Apart from above, we do not see any other reason to ask the
petitioner to face prosecution. In the case in hand, as such
prosecution in view of the consent extended by the complainant is
not likely to achieve any conviction in the matter.
7. In that view of the matter and having regard to the law
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laid down by the Apex Court in the matter of Gian Singh (supra)
and Narinder Singh (supra), prayer for quashing by consent stands
allowed.
8. The petition as such stands allowed in terms of prayer
clause (a).
9. Since the counsel who has assisted the complainant in
deciding the present petition was appointed by this Court, we direct
the Legal Aid Services Authority to pay the expenses and profession
fees which in this case is quantified as per the rules.
[S. G. DIGE, J.] [NITIN W. SAMBRE, J.]
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