Allowed

Mohd. Muddaar Ansari Afsar Ansari v. the State of Mah and Ors.

Bombay HC10 Aug 2011APPLN/2825/2011

Case brief

AI extract

What is this about?

High Court Bombay Aurangabad Bench held that Section 482 CrPC powers extend to quashing non-compoundable offences when parties settle amicably. Complainant withdrew prosecution amidst Family dispute resolution; FIR quashed to prevent abuse of process and ensure justice.

What did the court decide?

First Information Report Crime No. I-03/2011 and MA No. 836 of 2011 quashed; costs payable to Legal Services Sub-Committee.

Mohd. Muddaar Ansari Afsar Ansari Vs the State of Mah and Ors. — Quashing and FIR | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD

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CRIMINAL APPLICATION NO. 2825 OF 2011

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1 Mohd. Muddasar Ansari s/o Afsar Ansari, age 28 years, occ. Service,

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r/o Silk Mill Colony, Aurangabad ...Applicant

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(Original Complainant)

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VERSUS

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1 The State of Maharashtra,

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2 Shaikh Ashraf s/o Shaik Salim, age 24 years, occ. Business, r/o Gadiya Vihar, Aurangabad,

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3 Mohd. Gais s/o Mohd. Gayasuddin, age 25 years,occ. Business, r/o Osmanpura, Aurangabad,

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4 Shaikh Zakir @ Tipu s/o Shaikh Babar, age 25 years, occ. Business,

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r/o Osmanpura, Aurangabad ...Respondents

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Smt. Madhubala Gangwal, advocate for applicant Shri D.R.Korde, A.P.P. for respondent no.1 Shri S.G.Ladda, advocate for respondent nos. 2 to 4

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CORAM : SHRIHARI P.DAVARE, J.

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DATED : 10th August, 2011

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O R A L J U D G M E N T :

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1 Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties taken up for final hearing. Heard respective learned counsel for the parties.

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2 The applicant i.e. original complainant has filed the present application under Section 482 of the Code of Criminal Procedure praying that the First Information Report of Crime No. I-03/2011, registered with Osmanpura Police Station, Aurangabad and further proceedings of M.A. No. 836 of 2011 pending before the learned 6th Judicial Magistrate, First Class, Aurangabad, for the offence punishable under Sections 394 and 397 of the Indian Penal Code be quashed and set aside.

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3 It is the contention of the applicant that he lodged the First Information Report with the Osmanpura police station, Aurangabad against respondent nos. 2 to 4 and also against one unknown person under C.R. No. I-03/2011, on 5.1.2011, for the offence punishable under Sections 394 and 397 of the

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Indian Penal Code.

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4 It is alleged in the said First Information Report that on 5.1.2011 at 6.30 p.m., when the applicant (original complainant) went to Aasurkhana, Osmanpura to meet his sister, respondent no.2 i.e. original accused no.1 asked the applicant why he was staring at him and gave a blow of sharp edged weapon in his hand on the left thigh and right thigh of the applicant and thereby caused injury to him, and thereafter, respondent nos. 2 to 4 removed an amount of Rs.6,000/- from the right pant pocket of the applicant forcibly in collusion with each other. The applicant lodged the First Information Report with the Osmanpura police station, Aurangabad on 5.1.2011 and offence was registered under C.R. No. I-03/2011 against respondent nos. 2 to 4 under Sections 394 and 397 of the Indian Penal Code on the same day as afore said.

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5 The investigation was carried out by the investigating agency and the charge sheet was also filed and the matter is pending before the learned 6th Judicial Magistrate, First Class, Aurangabad under M.A. No. 836 of 2011.

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6 On the aforesaid background, the applicant contends that the misunderstanding and differences between him and respondent nos. 2 to 4 are set at rest by way of amicable settlement and both the parties now are on visiting terms to each other and they have decided to lead peaceful life in future, as well as they are also relatives of each other. Accordingly, the applicant contends that in view of the afore said position, both the parties have decided to give an end to all the quarrels and disputes between them, and hence, the applicant has approached this court for compounding of the offence/quashing of the First Information Report and consequent further proceedings arising therefrom, and also for abandoning the further proceedings taken up on the basis of the First Information Report, invoking the inherent powers under Section 482 of the Code of Criminal Procedure of this court.

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7 The applicant further submits that neither of the parties will continue, bring or prosecute any action in future against anybody for whatsoever reasons or count, so that the harmony amongst them would persist for long life. In support

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of the application, the applicant has filed his own affidavit also. It is further submitted by the applicant and respondent no.2 that there is no collusion between them to file present application, except to maintain the good and harmonious relations amongst them in future.

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8 Respondent nos. 2, 3 and 4 have filed their respective affidavits in replies and they have stated that the misunderstanding and differences between the applicant and respondent nos. 2 to 4 have been set at rest by way of amicable settlement and both the parties are on visiting terms and they have decided to lead peaceful life in future and they also are relatives of each other. It is also stated in the affidavit that both the parties have decided to give an end to all the quarrels and disputes, and hence, approached this court for compounding of the offence/quashing the First Information Report and further proceedings, invoking inherent powers of this court. It is also made clear that neither of the parties will continue, bring or prosecute any action in future against anybody for whatsoever reasons or count, so that the harmony amongst them would persist life long. Accordingly, it is decided

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by the parties to resolve the dispute amicably out of the court without any pressure or any monetary consideration and there is no coercion or any misrepresentation in settling the matter and only consideration is mental peace by avoiding further litigation.

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9 I have perused the contents of the application, as well as contents of the affidavits in replies filed by respondent nos. 2 to 4, and it is apparently clear that the parties have resolved the dispute amongst themselves by way of amicable settlement and the applicant (original complainant) intends to put an end to all the litigations between them. It is also apparently clear that the applicant (original complainant) does not wish to prosecute the First Information Report and further proceedings lodged by him with Osmanpura police station, Aurangabad, and hence, approached this court for compounding the offences punishable under Sections 394 and 397 of the Indian Penal Code or quashment of the First Information Report and further proceedings lodged by him, invoking the inherent powers of this court under Section 482 of the Code of Criminal Procedure.

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10 Admittedly, compounding of the offence punishable under Sections 394 and 397 of the Indian Penal Code is not permissible under Section 320 of the Code of Criminal Procedure. Hence, considering the position that the applicant (original complainant) and respondent nos. 2 to 4 (original accused) have resolved the dispute between them amicably out of the court and also considering the position that applicant does not wish to prosecute the First Information Report lodged by him with Osmanpura police station, Aurangabad further more, there is no propriety in continuing with the said First Information Report and further proceedings, since continuation thereof would be a futile exercise.

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11 Hence, the inherent powers of this court under Section 482 of the Code of Criminal Procedure are required to be invoked and proceedings lodged at the instance of the applicant herein, deserve to be quashed and set aside to meet the ends of justice.

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12 Learned Single Judge of this Court, in the case of Anjusingh Pramodsingh Rajput Vs. State of Maharashtra &

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another, reported at 2009 ALL MR (Cri) 763, relying on the judgment of Hon’ble Apex Court, in the case of B.S. Joshi and others Vs. State of Harayana and another, reported at 2003 ALL MR (Cri) 1162, has observed thus :

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" 21. Hon'ble Supreme Court in the case of B.S. Joshi and others Vs. State of Harayana and another, reported in 2003 ALL MR (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. S. 482 - Powers of Court - Matrimonial offences - It is the duty of the Court to encourage genuine settlements of matrimonial disputes. "

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In another case of Mansur A. Khan Vs. State of Maharashtra and others, reported in 2004 ALL MR (Cri) 1911, this Court held as

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under :-

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" Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act (1989), S.3(1)(x) - Criminal P.C., Ss. 482, 320 - Compounding of offences - Inherent powers of Court - Complaint under S. 3(1)(x) of Atrocities Act - Settlement between accused and complainant - Offence though noncompoundable, Court under S.482 of Criminal Procedure Code can permit the parties to compound the noncompoundable 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 ALL MR (Cri) 1743 this Court held that :-

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" Criminal P.C., Ss.482, 320 - Penal Code, Ss. 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 the said proceedings - Criminal Proceedings quashed. "

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This Court in the case of Mr. Jitendra S. Bhadoria and others Vs. State of Maharashtra and another reported in 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 Vs. The State of Maharashtra and another, reported in 2008(1) Bom.C.R. (Cri) 584 : [2008 ALL MR (Cri) 952 (F.B.)] 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

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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, pending 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 paragraph 7.10 of this judgment. This Court further observed that the powers to compound can be exercised at the trial stage or even at the appellate stage subject to satisfaction of the conditions 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

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large. This must be treated as a relevant consideration.

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In above referred judgment, in para No.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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13 The Hon’ble Apex Court, in the case of Dr. Arvind Barsaul, etc. Vs. State of Madhya Pradesh & another, reported at 2008 ALL SCR 2111, in para 10 of the judgment, has observed thus :

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" We have heard learned counsel for the parties at length. The parties have compromised and the complainant Smt. Sadhna Madnawat categorically submitted that she does not want to prosecute the appellants. Even otherwise also, in the peculiar facts and circumstances of the case and in the interest of justice, in our opinion, continuation of criminal proceedings would be an abuse of the process of law. We, in exercise of our power under Article 142 of the Constitution, deem it proper to

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quash the criminal proceedings pending against the appellants emanating from the FIR lodged under section 498-A, IPC. The appeal is accordingly disposed of. "

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14 In view of the pronouncement by the Full Bench of this Court, relying on the various Supreme Court's Judgment, I have no hesitation to proceed on footings that the inherent powers under section 482 of the Criminal Procedure Code include the powers to quash F.I.R., investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it.

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15 Having the comprehensive view of the matter and considering the above referred judicial pronouncements, since the parties have resolved the dispute amongst themselves amicably and since the applicant (original complainant) does not wish to prosecute the First Information Report lodged by him with Osmanpura police station, Aurangabad, and also intends to put an end to the said proceedings between the

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parties and to maintain peace and harmony amongst themselves, the First Information Report lodged by the applicant herein and the consequent proceedings deserve to be quashed and set aside invoking the inherent powers of this court under Section 482 of the Code of Criminal Procedure, in the interest of justice, and hence, present application deserves to be allowed.

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16 In the result, present application is allowed in terms of prayer clause ‘B’ and the First Information Report bearing Crime No. I-03/2011, registered with Osmanpura Police Station, Aurangabad and further proceedings of M.A. No. 836 of 2011 pending before the learned 6th Judicial Magistrate, First Class, Aurangabad, for the offence punishable under Sections 394 and 397 of the Indian Penal Code stand quashed and set aside, subject to payment of costs of Rs.2,000/- by the applicant and Rs.2,000/- by each of respondent nos. 2 to 4, to the High Court Legal Services Sub-Committee at Aurangabad, within two weeks.

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17 Rule is made absolute accordingly.

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