Allowed

Kunal Manilal Gada Andors v. the State of Maharashtra and Anr.

Bombay HC10 Mar 2021WP/1261/2021

Case brief

AI extract

What is this about?

The Bombay High Court quashed an FIR and related proceedings filed under Sections 498A and others IPC, along with the chargesheet and pending police case, following an amicable settlement between the husband and wife. The court held that continuation would amount to abuse of process given the remote chance of conviction after the victim's voluntary withdrawal.

What did the court decide?

Quashing of FIR No.10 of 2019, prosecution thereof, chargesheet dated 17/07/2019, and Police Case P.W. No.511 of 2019 pending before the Metropolitan Magistrate, Mulund.

Kunal Manilal Gada Andors Vs the State of Maharashtra and… — Domestic Violence | Bombay HC (2021)

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Digitally signed Laxmikant by Laxmikant G. Chandan G. Date: Chandan 2021.03.11 10:44:29 +0530

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(35) cri.wp-1261.21.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1261 OF 2021

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1]Kunal Manilal Gada ]
Age : 34 years, Occu : Business;]
Indian Inhabitant,]
]
2]Vasant Manilal Gada]
Age : 67 years, Occ : Business, ]
Indian Inhabitant]
]
Respondents No.1 and 2 r/a:]
Room No.2602, Mahavir Phoenix ]
L. B S Road, Opposite Jain Temple]
Bhandup West, Mumbai – 400078]
]
3]Priti Kiran Chhadva ]
Age : 40 years, Occ : Business ]
Indian Inhabitant]
]
4]Kiran Vasant Chhadva ]
Age : 41 years, Occ : Business ]
Indian Inhabitant]
]
Respondents No.3 and 4 r/a:]
Room No.103, Krushna Enclave,]
First Floor, J B Nagar, Andhri (E)]
Mumbai – 400 059]
]
5]Priya Vijay Furia ]
Age : 35 years, occ : Business ]
Indian Inhabitant]
]
6]Vijay Nemchand Furia ]
Age : 37 years, occ : Business]
Indian Inhabitant]
]
Respondents 5 and 6 r/a :]

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Room No.203, Padmavati Nagar, Dumping Road, Mulund (W)

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]
]….. Petitioners.

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Versus

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1]State of Maharashtra,]
Through Bhandup Police Station]
C/o Public Prosecutor]
High Court (A.S.)]
]
2]Mrs. Ankita Kunal Gada]
(Nee. Ms. Ankita Mahendra Dharod)]
Age : 31 years, occ : Housewife,]
Indian Inhabitant]
R/a : 603, Parshva Villa, V. P. Road, ]
Mulund West, Mumbai – 400 080]….. Respondents.

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Mr. Akshay R Pai i/by Bina Rajendra Pai for the Petitioners
Mr. V B Konde Deshmukh, APP for the Respondent No.1/State.
Mr. Prem J Gada for Respondent No.2.
Respondent No.2 present In Court.

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CORAM :S. S. SHINDE,
MANISH PITALE, JJ
DATE :10th MARCH 2021

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JUDGMENT : (PER S S SHINDE, J)

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1Rule. Rule made returnable forthwith and heard with the consent

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of learned counsel appearing for the parties.

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2The learned counsel appearing for the Petitioners and the learned

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counsel appearing for Respondent No. 2 jointly submit that the parties have
amicably settled the dispute and to that effect consent terms have been filed

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before the Family Court, Bandra, Mumbai. It is also submitted that Petitioner
No.1 is the husband and the Respondent No.2 is the wife, and they got married
on 24th January 2017. It is also submitted that the disputes between the
Petitioners and Respondent No.2 have been resolved amicably. Petitioner No.2
is the mother of Petitioner No.1, and Petitioner Nos.3 and 5 are the sisters of
Petitioner No.1. Petitioner Nos. 4 and 6 are the husbands of Petitioner Nos.3
and 5 respectively.

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3It is submitted that the impugned FIR being No.10 of 2019 came
to be registered by Respondent No.2 against the Petitioners with the Bhandup
Police Station, Mumbai for the offences punishable under Sections 498A, 406,
323, 504 and 34 of the Indian Penal Code. The Petitioners were summoned
and produced before the concerned Magistrate, who enlarged the Petitioners
on bail. Thereafter the police filed the Chargesheet dated 17/07/2019 before
the learned Metropolitan Magistrate, 53rd Court, Mulund, Mumbai bearing No.
PW/511 of 2019 against the Petitioners. Respondent No.2 filed an application
under Section 12 of the Domestic Violence Act, 2005 bearing No.85/DV/18
against the Petitioners before the learned Metropolitan Magistrate, 27th Court,
Mulund, Mumbai which has been withdrawn by the 2nd Respondent.
Thereafter the Petitioner No.1 filed a Petition bearing No. A-1781 of 2020 in
the Family Court, Bandra for dissolution of the marriage between him and
Respondent No.2. It is also submitted that the Petitioner No.1 and the 2nd

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Respondent have filed Consent Terms before the Family Court at Bandra
executed between them wherein all the disputes and issues arising between
them were amicably settled and all the allegations have been withdrawn.

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4It is submitted by the learned counsel for Respondent No. 2 that it
is the voluntary act of Respondent No. 2 to arrive at settlement and sign the
consent terms and give consent for quashing the impugned FIR/Chargesheet.

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5The 2nd Respondent is present in Court. The learned counsel
appearing for Respondent No.2 identified the Respondent No.2. When we
interacted with her, she stated that it is her voluntary act without coercion to
enter into the settlement and sign the consent terms. She further stated that
she has no objection for quashing the impugned FIR and Chargesheet.

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6In support of her aforesaid statements, Respondent No.2 has filed

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her affidavit before this Court. In paragraphs 3 to 7 of her affidavit,
Respondent No.2 has stated thus :-

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“3 I say that after filing of the Divorce Petition, I explored the settlement of all other disputes with the Petitioners which included alleged events and transpirations forming part of the subject matter of the said F.I.R. No.10 of 2019 and all proceedings filed pursuant thereto. It was resolved that both the parties should finalize the consent terms to such settlement talks and

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the entire dispute between us to be settled by finalizing
the consent terms. I have resolved to dissolve the
matrimonial relationship and agreed to withdraw all
allegations made against each other as well as the other
Petitioners in all the proceedings filed against each other
on the terms and conditions finalized by and between
them as per the Consent Terms dated 16/01/2021. The
Petitioner No.1 and I filed the Consent Terms dated
16/01/2021 in the Family Court, Bandra in M. J.
Petition No.A-1781 of 2020.

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4I say that in terms of the Consent Terms, the petitioner
No.1 has deposited Demand Draft worth Rs.13,50,000/-
to the mediator as agreed. The said Demand Draft will
be handed over to me once the Consent Terms are fully
complied with and the M.J. Petition before the Family
Court is finally disposed of. I also say that in
furtherance of the said Consent Terms, the Petitioner
No.2 and I have withdrawn our respective Applications
filed before the concerned Magistrate’s Court under the
provisions of the Domestic Violence Act, 2005. Thus the
only terms which remain to be complied with under the
said Consent Terms is to approach this Hon’ble Court
and have the said FIR quashed. It is in these
circumstances the above Petition as well as the present
Affidavit is being filed. The next date before the Family
Court is 01/04/2021 and the matter has been kept for
“Compliance of the Consent Terms”.

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5 I say that I have no intention to continue with the F.I.R.

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No.10 of 2019 dated 06/01/20219 and/or prosecute the
pending complaints. The Petitioner No.1 and myself are
well educated persons from respectable families and I
am not interested in carrying the matter/complaints any
further. I say that due to the nature of the allegations,
the said complaint cannot be compounded and/or
withdrawn as the offences under the said Act are non
compoundable.

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6 I say that one of the terms for the settlement at Clause No.8 of the said Consent Terms dated 16/01/2021 is to approach this Hon’ble Court with a request for withdrawal/quashing by consent of the said F.I.R.

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7 I therefore pray that I have no objection if the above Petition is allowed and I shall submit to the orders of this Hon’ble Court,.

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7Since the Petitioner No.1 and the 2rd Respondent have amicably
settled the disputes and the said disputes arose out of matrimonial discord, and
in view of the fact that the parties have already filed consent terms in the
Family Court, Bandra, Mumbai, no fruitful purpose will be served by
continuing the further investigation in FIR No.10 of 2019 registered with
Bhandup Police Station, Mumbai for the offences punishable under Sections
498A, 406, 323, 504 and 34 of the Indian Penal Code, and the Chargesheet
dated 17/07/2019 and the proceedings bearing Case PW No.511 of 2019
pending before the Ld. Metropolitan Magistrate, 53rd Court, at Mulund,

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Mumbai.

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8The Supreme Court in the case ofGiansingh v. State of Punjab
and Another1 has held that, the criminal cases having overwhelmingly and
predominatingly civil flavour stand on a different footing for the purposes of
quashing, particularly the offences arising from commercial, financial,
mercantile, civil, partnership or such like transactions or the offence arising out
of matrimony relating to dowry, etc. or the family disputes where the wrong is
basically private or personal in nature and the parties have resolves their entire
dispute. In this category of cases, the High Court may quash the criminal
proceedings if in its view, because of the compromise between the offender and
the victim, the possibility of conviction is remote and bleak and continuation of
the criminal case would put the accused to great oppression and prejudice and
extreme injustice would be caused to him by not quashing the criminal case
despite full and complete settlement and compromise with the victim. It is
further held that, as inherent power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with the guideline engrafted in
such power viz.: (I) to secure the ends of justice, or (ii) to prevent abuse of the
process of any court.

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9In the light of discussion in foregoing paragraphs, it is abundantly
clear that the Respondent No. 2 is not going to support the allegations made in

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1 2012 (10) SCC 303

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the impugned FIR and further continuation of investigation in FIR No.10 of
2019 registered with Bhandup Police Station, Mumbai for the offences
punishable under Sections 498A, 406, 323, 504 and 34 of the Indian Penal
Code, and the Chargesheet dated 17/07/2019 and the proceedings bearing
Case PW No.511 of 2019 pending before the Ld. Metropolitan Magistrate, 53rd
Court, at Mulund, Mumbai, would tantamount to the abuse of the process of
the Law/Court. Since the Respondent No.2 is not going to support the
allegations made in the impugned FIR, the chances of the conviction of the
Petitioners would be remote and bleak. In that view of the matter, the writ
Petition deserves to be allowed. Accordingly, the Writ Petition is allowed in
terms of prayer clause (a), (b), (c) and (d) which reads thus :-

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(a) this Hon’ble Court be pleased issue an appropriate writ, order or direction for quashing and setting aside FIR No.10 of 2019 (at Exhibit - “A” hereto) registered and pending before the Police Station at Bhandup, Mumbai u/s. 498A, 406, 323, 504 & 34 of IPC, 1860.”

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(b) this Hon’ble Court be pleased issue an appropriate writ, order or direction for quashing and setting aside prosecution of FIR No.10 of 2019 (at Exhibit - “A” hereto) registered and pending before the Police Station at Bhandup, Mumbai u/s. 498A, 406, 323, 504 & 34 of IPC, 1860.”

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(c) this Hon’ble Court be pleased issue an appropriate writ,

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order or direction for quashing and setting aside the said
Chargesheet dated 17/07/2019 filed u/s. 173 of the
Code of Criminal procedure, 1973 before the Ld. 53rd
Metropolitan Magistrate’s Court, Mulund, Mumbai in
Polcie Case P.W. No.511 of 2019 (at Exhibit - “B” hereto)

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(d) this Hon’ble Court be pleased issue an appropriate writ, order or direction for quashing and setting aside Police Case P.W. No.511 of 2019 pending before the Ld. 53^rd Metropolitan Magistrate’s Court, Mulund, Mumbai against the Petitioners.

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10Rule is made absolute to the above extent and, the Writ Petition
stands disposed of accordingly.

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11The parties to abide strictly by the Consent Terms filed before the
Family Court, Bandra, Mumbai and shall cooperate with the Family Court,
Bandra, Mumbai for deciding the proceedings before it by attending the dates
fixed by the said Court.

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[MANISH PITALE, J]

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[S. S. SHINDE , J]

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Kunal Manilal Gada Andors v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Kunal Manilal Gada Andors v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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