Bombay High Court
Mansukh Leera Verat vs The State Of Maharashtra And Anr on 3 January, 2023
Bench: R.P. Mohite-Dere, P. K. Chavan
Digitally
signed by 15-3905-2021-WP==.doc
UDAY
UDAY SHIVAJI
SHIVAJI JAGTAP Uday S. Jagtap
Date:
JAGTAP 2023.01.07
16:47:01
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3905 OF 2021
Mansukh Leera Verat .. Petitioner
Vs.
1. The State of Maharashtra
2. XYZ
3. The Senior Police Inspector,
N.R.I. Coastal Police Station,
Navi Mumbai .. Respondents
.....
Mr. Mahesh Vaswani a/w Ms. Sheetal Patkar i/b Ms. Shreya Tiwari
for the petitioner
Mr. K.V. Saste, APP for the respondent - State
Ms. Dharini Nagda for the respondent no.2
.....
CORAM : REVATI MOHITE DERE &
PRITHVIRAJ K. CHAVAN, JJ.
DATED : 3rd JANUARY, 2023.
ORDER (Per Prithviraj K. Chavan, J.)
1. At the outset, learned Counsel for the petitioner seeks leave to
amend to mask the name of the prosecutrix, not only in the clause
title but wherever it appears in the petition and replace it with an
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alphabet.
2. Leave granted. Amendment to be carried out forthwith.
3. Heard learned Counsel for the parties.
4. Rule. Rule is made returnable forthwith, with the consent of
the parties and the petition is taken up for final disposal. Mr. Saste,
learned APP waives service on behalf of respondent nos. 1 and 3 and
Ms. Nagda, learned Counsel waives service on behalf of respondent
no.2.
5. By this petition, preferred under Section 482 of the Code of
Criminal Procedure, 1973, the petitioner seeks quashing of the FIR
bearing C.R. No. 0204 of 2021 registered with the N.R.I. Coastal
Police Station, Navi Mumbai under Sections 376, 376(2)(h), 376(2)
(n) of the Indian Penal Code (for short "I.P.C"). Quashing is sought
on the premise that the parties have amicably settled their dispute.
6. Facts of the case are summarized as follows :-
7. The petitioner is a partner in a construction company, having
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business under the name and style as Armus Galicia at Ulve, Navi
Mumbai. The petitioner is married and has two sons. The
respondent no.2 is a divorcee with a 5 years old son.
8. There was a vacancy of Sales Manager in the office of the
petitioner's company. The respondent no.2 had applied for the said
post. The respondent no.2 was interviewed by the petitioner and his
brother and was appointed for the said post.
9. The petitioner and the respondent no.2 came in close contact,
became intimate and ultimately entered into live-in-relationship
since December 2020. The proposal for the said relationship was
put-forth by the petitioner, to which the respondent no.2 readily
agreed. The petitioner thereafter, promised the respondent no.2 that
he would marry her despite he already being married with two sons.
They had physical relationship with one another on several occasions
during their live-in-relationship. Since the petitioner was not
behaving properly with the respondent no.2, she discontinued her
relations and, obviously, lost her job also.
10. However, the petitioner reestablished his contact with the
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respondent no.2 on 29.01.2021 and requested her to resume
relationship and that he would not abandon her. He again promised
that he would definitely marry her. The relationship again
continued between the petitioner and the respondent no.2, resulting
into her pregnancy.
11. It appears that since the petitioner did not want a child from
the respondent no.2, he took her to the clinic of one Dr. Priti
Chalani at Vardhman Clinic, Babaji Complex Building, Sector 46/A,
Seawood, Navi Mumbai on 09.08.2021. After conducting medical
examination, sonography etc. she was given some pills by the doctor.
On 19.08.2021, while she was admitted at Ashwini Hospital, she had
profused bleeding and was quite unwell. The respondent no.2,
therefore, called the petitioner but he did not pick up her phone. On
the contrary, respondent no.2 received a whatsapp message from the
petitioner's wife stating "mere husband ko mat call karna kabhi ".
Thereafter, the petitioner blocked her number.
12. The respondent no.2 was not willing to leave the company of
the petitioner. However, the petitioner's friend namely, Dhiraj
informed the respondent no.2 that the petitioner cannot accept her
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responsibility and he would not be in a position to stay with her.
Ultimately, the respondent no.2 approached the N.R.I. Coastal
Police Station, Navi Mumbai and lodged an FIR against the
petitioner for the alleged offences as above.
13. After registration of the FIR, investigation continued resulting
into filing a charge-sheet against the petitioner in the Court of
J.M.F.C.-1, Panvel, Dist. Raigad.
14. The parties have now decided to give a quietus to the entire
dispute and, therefore, the respondent no.2 has sworn an affidavit,
dated 26.10.2021 before the Additional Registrar of this Court. The
said affidavit is taken on record.
15. Learned Counsel for the respondent no.2 has tendered
photostat copy of her Aadhar Card. The respondent no.2 on being
asked states that she had lodged a report against the petitioner due to
misunderstanding and in a heat of the moment. According to the
respondent no.2, the allegations in the FIR are purely of personal
nature and that the respondent no.2 has absolutely no objection if
the FIR as well as the charge-sheet arising from the said criminal
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proceeding are quashed and set aside as they have amicably settled
the dispute.
16. The respondent no.2 maintains that she wants to end all the
acrimony, misunderstanding, bitterness, differences qua the
petitioner and to put an end to all the litigation qua the said FIR.
The respondent no.2 has been duly identified by her Counsel.
Learned APP has verified the original Aadhar Card of the
respondent no.2.
17. Learned Counsel for the petitioner has pressed into service a
judgment of the Hon'ble Supreme Court in the case of Madan
Mohan Abbot Vs. State of Punjab 1. It was a case under Section 379,
406, 409, 418, 506 r/w 34 of the IPC. The ratio decidendi of the
said judgment is that :-
When a question involved is of purely personal in nature,
the Court should ordinarily accept the terms of the
compromise even in criminal proceedings since keeping the
matter alive with no possibility of a result in favour of the
prosecution is a luxury which the courts, grossly
overburdened as they are, cannot afford and that the time
1 (2008) 4 SCC 582
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so saved can be utilised in deciding more effective and
meaningful litigation. This is a common sense approach to
the matter based on ground of realities and bereft of the
technicalities of the law.
18. In a recent judgment of the Supreme Court in the case of
Shambhu Kharwar Vs. State of Uttar Pradesh & Anr. 2, the Hon'ble
Supreme Court discussed the scope of Section 482 of the Code of
Criminal Procedure as well as the parameters governing the exercise
of the jurisdiction by this Court. It is well settled that the test is
whether or not the allegations in the FIR disclose the commission of
a congniziable offence. The Court is not required to enter into
merits of the allegations or trench upon the power of the
investigating agency to investigate into allegations involving the
commission of a cognizable offence. This is in consonance with the
parameters formulated by the Supreme Court in the case of State of
Haryana Vs. Bhajan Lal,3.
19. In case of Shambhu Kharwar (supra), the appellant and the
respondent no.2 were also in consensual relationship since 2013 to
December, 2017. Both were educated and adults. Respondent no.2
2 AIR 2022 (SC), 3901
3 1992 Supp. (1) SCC, 335
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during that period got married with someone else. The marriage
ended in a decree of divorce by mutual consent on 17 th September,
2017. The allegations made by the respondent no.2 indicated that
her relationship with the appellant continued prior to her marriage,
during the subsistence of the marriage and after the grant of divorce
by mutual consent. It is held that allegations in the complaint as
they stand in the First Information Report or in the Charge-sheet do
not attract the ingredients of Section 376 of the Indian Penal Code.
20. Having regard to the ratio laid down by the aforesaid judgment
vis-a-vis the facts and the case in hand, we are of the considered view
that ingredients of Section 376, 376(2)(h), 376(2)(n) of the I.P.C.
are not at all attracted, inasmuch as, the relations between these two
adults are clearly consensual.
21. It is apparent from the facts that the petitioner and respondent
no.2 were quite aware both of them have already married with
children and, therefore, there was no question of giving a promise to
marry by the petitioner to the respondent no.2. In light of the
affidavit sworn by the respondent no.2 requesting for quashing the
entire proceedings, which are out of her free will sans any coercion or
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undue influence, we deem it necessary to quash the same.
22. Consequently, the writ petition is allowed. The FIR bearing
C.R. No. 0204 of 2021 registered with the N.R.I. Coastal Police
Station, Navi Mumbai for the offences punishable under Sections
376, 376(2)(h), 376(2)(n) of the IPC is quashed and set aside.
23. The petitioner to deposit a sum of Rs. 50,000/- with the
Jeevan Sandhya Mangalya Sansthan, bearing Account No.
60134381699, IFCS No. MAHB0000189, as costs. The said costs
to be deposited within three weeks from today.
24. Rule is made absolute in the aforesaid terms. Petition is
disposed of accordingly.
25. Stand over to 30th January 2023, for recording compliance of
the said deposit of costs.
26. All concerned to act on the authenticated copy of this order.
[PRITHVIRAJ K. CHAVAN, J.] [REVATI MOHITE DERE, J. ]
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