Allowed

Sayyed Tareque Ali v. the State of Mah

Bombay HC10 Aug 2011APPLN/2854/2011

Case brief

AI extract

What is this about?

High Court of Judicature at Bombay quashed criminal proceedings including FIR under Section 307 IPC. Court invoked inherent powers under Section 482 CrPC, allowing quashing despite non-compoundable nature, as parties settled and sought to end litigation.

What did the court decide?

First Information Report, investigation, and consequent proceedings under Section 307 IPC were quashed and set aside.

Sayyed Tareque Ali Vs the State of Mah — Civil Procedure and Limitation | 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. 2854 OF 2011

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1 Sayyed Tareque Ali, age 22 years, occ. Student, r/o Rashidpura, Majnu Hill, Aurangabad ...Applicant

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VERSUS

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1 The State of Maharashtra,

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2 Sayyad Maidi Salami, age 23 years, occ.business, r/o Paithan Gate, Aurangabad ...Respondents

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Shri N.S.Ghanekar, advocate for applicant Shri D.R.Korde, A.P.P. for respondent no.1 Shri S.S.Kingaonkar, advocate for respondent no.2

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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 Shri S.S.Kingaonkar, advocate has filed Vakalatnama for respondent no.2 and also affidavit in reply on behalf of respondent no.2 and same are taken on record.

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2 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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3 Respondent no.2 is present in person before the court and he admitted the contents of the affidavit in reply filed by him and categorically stated that he does not wish to prosecute the matter any further.

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4 The applicant has filed the present application under Section 482 of the Code of Criminal Procedure praying that the proceedings bearing Regular Criminal Case No. 768 of 2011, registered on the basis of the First Information Report i.e. C.R. No. 272 of 2010 with the City Chowk police station, Aurangabad for the offence punishable under Section 307 of the Indian

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Penal Code, be quashed and set aside.

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5 The applicant contends that the crime has been registered on the basis of information given by respondent no.2 i.e. original complainant, namely Sayyad Maidi Salami, wherein it is alleged that the applicant herein assaulted him with knife and caused injuries to his chest ribs, back, chick on account of previous quarrel and also on account of allegedly sending indecent SMSs. It is also alleged that the applicant also assaulted respondent no.2 with an intention to commit his murder, and accordingly, crime was registered against the applicant under C.R. No. 272 of 2010 at the instance of respondent no.2 on 30.10.2010. Accordingly, the applicant was arrested under the said C.R. on the same day.

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6 It is the contention of the applicant that the nature of injuries is simple and superficial and respondent no.2 injured was discharged, and in fact, was not required to be hospitalized. All the injuries mentioned in the injury certificate are simple injuries and they are possible by hard and blunt object. It is also the contention of the applicant that the injuries

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clearly show that allegations against the applicant are false and the First Information Report is based upon the false allegations. The applicant also contends that he had earlier preferred Criminal Application No. 1400 of 2011 for quashment of the said First Information Report, but since the investigation was in progress, he withdrew the said application and after completion of investigation, preferred the present application with the prayer of quashment of the First Information Report and further proceedings as mentioned herein above.

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7 The applicant and respondent no.2 are taking education and they are not having any previous enmity and they intend and desire to maintain brotherly relations and want to put an end to all the litigations in between them, and they do not want to proceed against each other, since the litigations are hampering their education. The applicant contends that he has completed B.C.S. course from Maulana Azad College presently. It is further contended that the applicant is having good qualification and educational record and he has passed all previous examinations with good percentage, as well as he has completed MS CIT and also completed a computer course

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from H.I.I.T. He has also completed C-programming from MITCON. It is further submitted that there is no previous criminal record, even not a single N.C. was registered against him earlier and he is having good social status, and therefore, the applicant has preferred the present application for quashing the First Information Report and further proceedings.

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8 Respondent no.2 filed affidavit in reply and submitted that applicant and respondent no.2 had cordial relations with each other and the First Information Report came to be lodged by respondent no.2 out of misunderstanding between him and the applicant. It is also submitted that the relations between respondent no.2 and the applicant are brotherly relations and they want to maintain said relations and respondent no.2 wants to put an end to all the pending litigations. Respondent no.2 further submits that at the time of incident and prior to that and after the incident, he is having no enmity with the applicant and he has no objection to quash the First Information Report lodged against the applicant, since respondent no.2 does not want to proceed against the applicant and desires to compound the offence. Respondent no.2 further submits that he and the

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applicant are both students and both are pursuing their studies, and therefore, he does not want to proceed with the matter.

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9 It appears from the contents of the present application as well as the contents of the affidavit in reply filed by respondent no.2 i.e. original complainant that the applicant and respondent no.2 both are students, who are pursuing their respective education and the First Information Report in the present matter came to be lodged out of misunderstanding between them and both i.e. the applicant and respondent no.2 have no enmity between them and they desire to put an end to the litigations pending between them, and accordingly, respondent no.2 i.e. original complainant does not wish to prosecute the First Information Report and further proceedings lodged by him and he has no objection to quash the First Information Report lodged against the applicant by him.

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10 Admittedly, the offence registered in the present matter is under Section 307 of the Indian Penal Code and same is not permissible to be compounded under Section 320 of the Code of Criminal Procedure, and therefore, the applicant has

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preferred the present application under Section 482 of the Code of Criminal Procedure and both the applicant and respondent no. 2 urge that the inherent powers of this court under Section 482 of the Code of Criminal Procedure be invoked to meet the ends of justice.

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11 Learned Single Judge of this Court, in the case of Anjusingh Pramodsingh Rajput Vs. State of Maharashtra & another, reported at 2009 ALL MR (Cri) 763, relying on the judgment of Hon. 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 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,

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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

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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, 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

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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 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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12 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

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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 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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13 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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14 Having the comprehensive view of the matter, it appears that the applicant and respondent no.2 have settled the matter between them out of the court and respondent no.2 i.e. original complainant does not wish to prosecute the First Information Report lodged by him and the consequent further

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proceedings arising therefrom. Hence, it is apparently clear that the continuation of prosecution on the basis of the First Information Report lodged by respondent no.2 would be futile exercise. Hence, considering the desire of the applicant and respondent no.2 that they intend to put an end to the litigations between them, it is necessary to invoke inherent powers of this court under Section 482 of the Code of Criminal Procedure to quash and set aside the First Information Report and the consequent proceedings i.e. the chargesheet filed therein and the further proceedings, in the interest of justice.

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15 In the result, present application is allowed in terms of prayer clause ‘B’ thereof and the proceedings in Regular Criminal Case No. 768 of 2011, registered on the basis of the First Information Report under C. R. No. 272 of 2010 with City Chowk police station, Aurangabad, for the offence punishable under Section 307 of the Indian Penal Code stands quashed and set aside, subject to payment of costs of Rs.1,000/- by the applicant and Rs.1,000/- by respondent no.2 to the High Court Legal Services Sub-Committee at Aurangabad, within four weeks.

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16 Rule is made absolute accordingly.

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17 Office to inform the order to the concerned court.

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(SHRIHARI P. DAVARE, J.)

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dbm/crap2854.11

Sayyed Tareque Ali v. the State of Mah

Case brief

What is this about?

What did the court decide?

Sayyed Tareque Ali v. the State of Mah

Case brief

What is this about?

What did the court decide?

What the court decided

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