Allowed

Amol Bhimroa Chavan and Anr. v. the State of Maharashtra and Anr.

Bombay HC1 Apr 2019APL/93/2019

Case brief

AI extract

What is this about?

A criminal application filed for quashing an FIR involving attempted rape and non-cogent allegations of rape. The court noted a settlement with the complainant, held that the alleged rape act was consensual, and granted quashing of the FIR subject to payment of court costs to a cancer hospital.

What did the court decide?

The criminal application is allowed. The FIR is quashed. The applicant shall pay Rs.10,000 to TatA Memorial Hospital within four weeks to make the quashment effective.

Amol Bhimroa Chavan and Anr. Vs the State of Maharashtra and… — Quashing and FIR | Bombay HC (2019)

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26-apl-93-2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.93 OF 2019

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Amol Bhimroa Chavan & Anr. ..Applicants V/s. The State of Maharashtra & Anr. .. Respondents

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Mr.Zaid Qureshi for the Applicants.

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Ms.S.D. Shinde, APP for the Respondent-State.

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Ms.Swapna P. Kode for Respondent No.2.

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CORAM : RANJIT MORE & SMT.BHARATI H. DANGRE, JJ.

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DATE : 01^st APRIL 2019

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P.C.

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Heard the learned Counsel appearing for the applicants,

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the learned Counsel appearing for the Respondent No. 2 and the learned APP for the respondent-State.

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Petition is filed for quashing FIR bearing CR. No.136 of 2018 registered with Khadakwasla Police Station, Pune at the instance of Respondent No.2 for the offence punishable under sections 376, 354, 417, 506 and 323 of the Indian Penal Code, 1860.

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N.S. Kamble page 1 of 6

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The learned Counsel appearing for the respective parties submitted that during the pendency of investigation in the subject FIR the parties amicably settled their differences by way of mutual settlement and pursuant to the understanding arrived at between them, present application is filed for quashing the above FIR, by consent of Respondent No. 2.

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Respondent No.2–original complainant has filed an affidavit dated 30^th March 2019. In paragraph 2, she has stated that out of her own free will, voluntarily and without any fear, force, compulsion or coercion she desire to resolve the issue and in the interests of the all the parties the dispute is amicably and peacefully resolved by way of one time, full and final settlement. In paragraph No.3, she has stated that she has received an amount of Rs.6,00,000/- by way of settlement of the dispute in question.

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In paragraph No.4 she has given no objection to quash

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the subject FIR. Respondent No.2 is personally present before the Court. On specific query made by us, she submitted that she has made the said affidavit on her own free will, without there being any pressure or undue influence. She has further confirmed that she has no objection for quashing FIR in question initiated by her

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N.S. Kamble page 2 of 6

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26-apl-93-2019

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against the Petitioner for the offence punishable under sections 376, 354, 417, 506 and 323 of the Indian Penal Code, 1860.

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It is true that the offence under section 376 of IPC is of serious nature and is an offence against the society. Consequently, such an offence cannot be quashed by consent. Nonetheless, it would be advantageous to refer to Paragraph 28 of Narinder Singh vs. State of Punjab [2014 AIR SCW 2065] , wherein the Apex Court has held as

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“28. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/Charge-sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, of the opinion that while taking a call as to whether compromise in such

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page 3 of 6

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cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.”

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The decision of the Apex Court, thus, makes it clear that the Court cannot decline to quash the FIR merely because the FIR incorporates a particular provision which is a serious offence or an offence against the society. The Court has to endeavour to find out whether the FIR indeed discloses ingredients of such offence and that the Court can accept the settlement and quash the FIR / Charge-sheet if the Court is of the opinion that such an offence is

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unnecessarily incorporated in the charge-sheet.

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So far as the instant case is concerned, we have gone through the FIR. Reading of the FIR makes it abundantly clear that the Petitioner No.1 and Respondent No.2 are adult and they are shared a relationship resulting into physical relationship which was consensual. Thus offence under section 375 is not made out. Consequently, no fruitful purpose will be served by continuing with the prosecution.

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In these circumstances, and especially, in view of the8 law laid down by the Apex Court in the case of Madan Mohan Abbot vs. State of Punjab, [(2008) 4 SCC 582] , we find that no purpose would be served by keeping the subject FIR alive except ultimately burdening the Criminal Courts which are already overburdened.

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In the light of the principles laid down by the Apex Court in the aforesaid decision as well as in the case of Narinder Singh vs. State of Punjab [2014 AIR SCW 2065] we are of the considered view that there is no impediment in quashing the subject FIR. In that view of the matter, writ petition is made absolute in

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terms of prayer clause (a). As the police machinery and the Court machinery was used by the parties to settle their private disputes as a corollary of differences of opinion, we find it would be appropriate to saddle the Petitioner with the cost of Rs.10,000/-, which shall be paid to the “Tata Memorial Hospital”, Mumbai an institution that takes care of the advanced and terminally ill cancer patients. For the quashment to take effect, the Petitioner shall pay the said cost and produce the receipt thereof on the file of this Court within the period of four weeks from today. Failing to pay cost and produce receipt within stipulated time, petition shall stand dismissed automatically without further reference to the Court and order quashing the proceedings/FIR shall be treated as non-est.

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(SMT.BHARATI H. DANGRE, J.) (RANJIT MORE, J.)

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N.S. Kamble page 6 of 6

Amol Bhimroa Chavan and Anr. v. the State of Maharashtra and Anr.

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Amol Bhimroa Chavan and Anr. v. the State of Maharashtra and Anr.

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