Allowed

Shasheen Shaikh Imran and Ors. v. the State of Mah and Ors.

Bombay HC29 Jul 2010APPLN/1051/2010

Case brief

AI extract

What is this about?

This court quashed an FIR under Section 307 IPC filed by a second wife against her erstwhile husband's family in Aurangabad. Relying on Sections 482 and 320 CrPC and various precedents, the court held that inherent powers allow quashing even non-compoundable offences when a genuine settlement restores family harmony.

What did the court decide?

FIR CR No. 158/2009 is quashed and set aside; rule made absolute disposing both criminal applications.

Shasheen Shaikh Imran and Ors. Vs the State of Mah and Ors. — Cheque Dishonour | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.1051 OF 2010

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WITH

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CRIMINAL APPLICATION NO.2180 OF 2010

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XXX - - - XXX

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CRIMINAL APPLICATION NO.1051 OF 2010

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Dr.Shaheen w/o Shaikh Imran Age-35 years, Occ-Service

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Dr.Imran s/o Shaikh Ramzan Age-40 years, Occ-Service

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Adeba w/o Shaikh Ramzan Age-66 years, Occ-Pensioner

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All R/o Delhi Gate, Aurangabad APPLICANTS

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VERSUS

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The State of Maharashtra Through police station, MIDC, CIDCO, Aurangabad

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Commissioner of Police, Aurangabad,

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Naseem Mamdani Divorcee w/o Shaikh Ramzan Age-36 years, Occ-Business R/o Flat No.2, Royal Plaza Shri Krishna Hospital, N-2, CIDCO, Aurangabad RESPONDENTS

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Mr. G.R.Syed, Advocate for the applicants Mr. P.P.More, APP for respondents State Mr. S.S.Mundhe, Advocate for respondent No.3

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WITH

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CRIMINAL APPLICATION NO.2180 OF 2010

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Shaikh Ramzan s/o Abdul Aziz Age-73 years, Occ-Pensioner R/o Delhi Gate, Aurangabad

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APPLICANT

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VERSUS

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The State of Maharashtra Through police station, MIDC, CIDCO, Aurangabad

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Commissioner of Police, Aurangabad,

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Naseem Mamdani Divorcee w/o Shaikh Ramzan Age-36 years, Occ-Business R/o Flat No.2, Royal Plaza Shri Hrishna Hospital, N-2, CIDCO, Aurangabad RESPONDENTS

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Mr. G.R.Syed, Advocate for the applicants Mr. P.P.More, APP for respondents State Mr. S.S.Mundhe, Advocate for respondent No.3

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[CORAM : A.V.POTDAR, J.]

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DATE: 29^th July 2010

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ORAL JUDGMENT :

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By both these criminal applications, the applicantsaccused No.1 to 4, have prayed for quashing of the FIR at CR No. 158/2009 registered on the complaint of respondent No.3. As both these applications arise out of one crime, they are being disposed of by this common judgment.

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Rule.

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Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission itself.

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Brief facts of the case may be stated thus -

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a) Respondent No.3 is the second wife and applicant Abeda is the first wife of applicant Ramzan Shaikh. Applicants Shaheen and Imran are daughter in law and son of applicants Ramzan and Abeda.

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b) Respondent No.3, has filed a complaint in MIDC CIDCO police station on 06.12.2009 for an offence punishable u/s 307 r/w 34 of the Indian Penal Code against all the accused. Pursuant to the said complaint, the applicants were arrested and subsequently are released on bail.

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By these applications u/s 482 of the Criminal

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Procedure Code, the applicants have approached this Court for quashing of the FIR. It appears that during the pendency of these applications, charge sheet has been filed before JMFC, Aurangabad on 29.05.2010 and numbered as RCC No.52/2010.

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It appears that thereafter the parties have settled their dispute amicably and respondent No.3 started cohabiting with the applicants. It also appears that accordingly respondent No.3 has filed affidavit on 13^th July 2010. Respondent No.3 is duly identified by her advocate. In the affidavit in para 2, it is categorically stated that “The answering respondent submits that, she is legally wedded wife Shaikh Ramzan, some matrimonial disputes between the applicant and answering respondent were arisen, so also present crime is outcome of these matrimonial disputes.” In para 3 of the said affidavit it is further stated that “The answering respondent submits that, since these matrimonial disputes between the parties are now come to an end and answering respondent has resumed her cohabitation with her husband, therefore, in these facts and circumstances, answering respondent does not want to prosecute the matter and in the interest of justice and to maintain the harmony in the family answering respondent humbly prays before this Hon’ble Court to quash and set aside the First Information Report bearing No.I-158/2009 registered with Police Station, MIDC CIDCO, Aurangabad”.

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Purport of the affidavit filed by respondent No.3,

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original complainant, is that the parties have settled their dispute amicably and have started cohabiting with each other.

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Offence registered u/s 307 of the Indian Penal Code, is not compoundable within the meaning and scope of section 320 of the Criminal Procedure Code. This Court, in the matter of “Arjunsingh Pramodsingh Rajput V/s State of Maharashtra” reported in 2009 (5) LJSOFT 45 : 2009 ALL MR (CRI) 763 : 2009 MCR 859 : 2010 (2) Bom.C.R. (CRI) 229 has observed that though the offence u/s 307 of the Indian Penal Code is non compoundable as per the provisions of section 320 of the Criminal Procedure Code, yet powers u/s 482 of the Criminal Procedure Code are neither limited nor curtailed by any other provisions of the Code, including section 320. The Court could exercise this power in offences of any kind, whether compoundable or non compoundable, to be entertained under section 482 of the Criminal Procedure Code. It is further observed that though initially the complaint was lodged by the applicant-wife against husband for offence u/s 307 of IPC yet now, the wife and husband have jointly submitted that with their free will and consent memorandum of settlement and understanding filed by them before the Court would give rise to quash FIR u/s 482 of the Criminal Procedure Code. The detailed observations found in paragraphs No.21 and 22, which reads thus,

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“21. Hon’ble Supreme Court in the case of B.S.Joshi

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and others Vs. State of Haryana and another, reported in 2003 (4) LJSOFT (SC) 9 = 2003 ALL M.R. (Cri) 1162 held as under

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“Criminal P.C. Ss.482, 320 – Inherent powers-Quashing of proceedings, F.I.R. Or complaint – Section 320 would not be a bar to exercise of power of quashing – Whether to exercise or not such a power would depend upon facts and circumstances of each case.”

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Criminal P.C. 482 – Powers of Court – Matrimonial offences – It is the duty of the Court to encourage genuine settlement of matrimonial disputes.”

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In another case of Mansur A. Khan V/s State of Maharashtra and others, reported in 2004 (7) LJSOFT 75 : 2004 ALL MR (Cri.) 1911 this Court held as under :-

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Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, 3 (1) (x) – Criminal P.C. Ss. 482, 320 – Compounding of offences – Inherent powers of Court – Compliant under S. 3 (1) (x) of Atrocities Act – Settlement between accused and complainant – offence though non compoundable, Court under S.482 of Criminal Procedure Code can permit the parties to compound the non-compoundable offence, when it is satisfied that settlement is bonafide and free from pressure and force.”

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In another case of Swati w/o Pradeep Goswami Vs. State of Maharashtra and others, reported in 2006 (7) LJSOFT 177 = 2006 ALL MR (Cri) 1743, this Court held that :-

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“Criminal P.C. Ss.482, 302 – Penal Code S.498-A, 420, 494, 495 and section 506 (B) – Amicable settlement of disputes between the parties – No purpose would be served in continuing the proceedings initiated by the wife when she herself is not interested in prosecuting

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the said proceedings – Criminal Proceedings quashed.”

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This Court in case of Mr.Jitendra S.Bhadoria and others Vs. State of Maharashtra and another reported in 2008 (5) LJSOFT 100 = 2008 ALL MR (Cri) 898 held as under :

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“Criminal P.C. Ss. 320, 482 – Quashing of Proceedings – Compounding of offence u/s 320 – Cruelty to wife – Section 320 of Criminal P.C. does not limit or affect the power of the High Court u/s 482 of Cr.P.C. - Section 320 would not be a bar to exercise a power of quashing. Penal Code (1860), Section 498-A 2003 ALL MR (Cri.) 1162 (S.C.) - relied on”

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The Full Bench of this Court in the case of Abasaheb Yadav Honmane V.s The State of Maharashtra and another, reported in 2008 (5) LJSOFT 46 = 2008 (1) Bom.C.R. (Cri) 584 held that the powers under section 482 of the Code are not limited or affected by the provisions of section 320 of the Code. It is further held that the inherent powers under section 482 of the Code include powers to quash F.I.R., investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any Court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. The powers under section 482 are neither limited nor curtailed by any other provisions of the Code including section 320 of the Code. The Court could exercise this power in offences of any kind, whether compoundable or non-compoundable. However, such inherent powers are to be exercised sparingly and with caution and in conformity with the precepts indicated in paragraphs 7.10 of this judgment. This Court further observed that the powers to compound can be exercised at the trial

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stage or even at the appellate stage subject to satisfaction of the condition postulated by the legislature under section 320 of the Code.

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The Full Bench in above referred judgment in para 6.13 has observed that the powers of compounding is strictly regulated by statutory powers while the inherent powers of the Court are guided by judicial pronouncements within the scope of section 482 of the Code. Another very important facet of criminal jurisprudence which as developed in the present time is with regard to the impact of compounding and / or quashing criminal proceedings in relation to an offence, its impact on the victim, witnesses and the society at large. This must be treated as a relevant consideration.

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In above referred judgment, in para 5.14 the Full Bench has observed that when the Court has to consider whether the criminal proceedings should be allowed to continue or the same should be quashed, two aspects are to be satisfied (i) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (ii) whether it is expedient and in the interest of justice to permit a prosecution to continue.”

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Similar view is taken by this Court in the matter of “Nisha Sanjay Goswami V/s State of Maharashtra” reported in 2004 (8) LJSOFT 45 .

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It is contended across the bar that by virtue of the ruling, which are cited supra, wherein it is held that though section 307 of the Indian Penal Code is not compoundable within the ambit of section 320 of Criminal Procedure Code, yet

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considering the extraordinary powers vested in this Court u/s 482 of the Criminal Procedure Code and as the parties have arrived at a settlement that too in a matrimonial dispute, the parties are required to be permitted to compound the offence.

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Consequently, as now the dispute between the parties has been settled amicably, which is evident from the affidavit filed by original complainant, the parties are allowed to compound the offence. In the premise, the FIR in CR No.158/2009 registered with MIDC, CIDCO Police Station, Aurangabad is hereby quashed and set aside.

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Rule is thus made absolute as indicated above. Both the applications stand disposed of.

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[A.V.POTDAR, J.]

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drp/B10/criapln1051-10

Shasheen Shaikh Imran and Ors. v. the State of Mah and Ors.

Case brief

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Shasheen Shaikh Imran and Ors. v. the State of Mah and Ors.

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