Allowed

Dr. Rohit Madhav Sane and Ors. v. the State of Maharashtra and Anr.

Bombay HC1 Oct 2021WP/2331/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash an FIR alleging trespass and criminal breach of trust arising from a land dispute. The parties had amicably resolved the civil dispute via a compromise decree and executed a deed of right of way, rendering the criminal prosecution unnecessary.

What did the court decide?

The petition stands allowed; the impugned FIR No. 98 of 2019 is quashed and set aside with the clarification that the order does not confer or divest property title.

Dr. Rohit Madhav Sane and Ors. Vs the State of… — Civil Procedure and Limitation | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO.2331 OF 2019

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Dr. Rohit Madhav Sane and Others

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…Petitioners

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vs.

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The State of Maharashtra and Another ...Respondents

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Mr. Jagdish Reddy (Aradwad), for the Petitioner. Mr. Siddhant Joshi i/b. Mr. Aloukik Pai, for Respondent No. 2. Mr. J.P. Yagnik, APP for the Respondent-State. Mr. Kamal Chandiram Dantwani, Respondent No. 2 present.

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CORAM : S.S. SHINDE & N.J. JAMADAR, JJ. DATE : OCTOBER 01, 2021

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ORAL JUDGMENT : (Per N.J.Jamadar, J.)

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Rule. Rule made returnable forthwith and, with the consent of

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the counsels for the parties, heard fnally.

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This petition under section 226 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1979 (the Code) is instituted to quash and set aside the frst information report No. 98 of 2019 registered with Khalapur police station, Raigad for the offence punishable under section 447 read with 34 of Indian Penal Code, 1860, at the instance of respondent No. 2- frst informant.

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The indictment against the petitioners is that the frst

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Vishal Parekar, P.A.

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informant is the holder of the land bearing survey No. 89, Hissa No. 2 ,4, 8 and 10. The petitioner No. 1 is the holder of adjoining land. The petitioner No. 1 runs an hospital thereat. Though there is no document to evidence the existence of a way through the land of the frst informant, the petitioners allegedly trespassed on the land of the frst informant and used a portion of the said land as an access to the said hospital. Even the measurement by the Cadestral Surveyor revealed that the petitioner had committed encroachment over the land of the frst informant. With these allegations, the frst informant lodged report leading to C.R. No. 98 of 2019, Khalapur police station.

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Mr. Jagdish Reddy, learned counsel for the petitioner and Mr. Siddhant Joshi, learned counsel for respondent No. 2, make a joint statement that, in the intervening period, the petitioners and respondent No. 2 have amicably resolved the dispute in Regular Civil Suit No. 68 of 2019 which was instituted by the petitioners’ trust against respondent No. 2. A compromise decree has been passed in accordance with the consent terms (Exhibit 59), in the said suit. The Deed of Grant of Right of Way has also been executed. Respondent NO. 2 thus does not desire to prosecute the petitioners any further. Respondent No. 2 has fled an affdavit incorporating the consent for quashment.

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Vishal Parekar, P.A.

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Respondent No. 2 appeared before the Court. He was identifed by the learned counsel for respondent No. 2. Respondent No. 2 submitted that the entire dispute with the petitioners has been amicably resolved. Consent terms have been duly executed and the Civil Suit has been disposed of in accordance with the consent terms, on 23^rd August, 2021. Respondent No. 2 further submitted that he has fled the affdavit voluntarily and there is no coercion or duress. Respondent No. 2 admitted the contents of the affdavit and execution thereof. The copies of the order passed in R.C.S. No.68 of 2019 and consent terms, have been annexed to the affdavit.

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6. Paragraph Nos. 3 to 5 of the affdavit sworn by respondent

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No.2 read as under:

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3] I say that even the present petitioners have fled Regular Civil Suit No. 68 of 2019 in the Court of learned Civil Judge (J.D.), Khalapur seeking injunction against the answering respondent from obstructing the petitioners from using the property of the answering respondent for access to their property. I say that even other number of proceeding have been fled by the petitioners and the answering respondent against each other and I say that now the petitioners and the answering respondent has mutually decided to settle all the disputes inter se in between them and accordingly the consent terms between the petitioners and the answering respondent (ori. Plaintiffs and defendant in RCS No. 68 of 2019) have been fled in the Court of learned Civil Judge (J.D.), Khalapur and as per the said consent terms the petitioners have agreed and undertaken to purchase the portion of the property of the answering respondent bearing survey No. 89/4, admeasuring about 0 H 27.8 Ares (as per 7 x 12 extract) for consideration of Rs. 2,42,50,000/- and right of way in favour of petitioners and by way of an approach road being portion of land admeasuring about 12 meter width passing through the land bearing survey No. 89/2 belonging

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Vishal Parekar, P.A.

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to the respondent No. 2 and stretching from West to East fnally connecting the old Mumbai Pune Highway (NH-4) to the land bearing Sr.No. 89/4, for consideration of Rs. 25,00,000/- and even the petitioners have agreed to pay the said entire amount of consideration on or before 30/09/2021 and even the petitioners have paid part payment of Rs. 90 lakhs. I say that even the answering respondent has agreed and undertaken to execute Deed of Conveyance to that effect and even agreed and undertaken to execute the Deed of Grant of Right of Way in favour of the petitioners and even to that effect the consent terms between the petitioners and the answering respondent have been fled in the Court of learned Civil Judge (J.D.), Khalapur and even on the basis of the said consent terms dated 23/08/2021 the R.C.S. No. 68 of 2019 has been disposed of. Hereto, annexed and marked as Exh. A is the certifed copy of the decree dated 23/08/2021. Hereto annexed and marked as Ex. B is the copy of the said consent terms dated 23/08/2021 execute in between the petitioners and the answering respondent.

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4] I say that as stated above, as per the consent terms executed in between the petitioners and the answering respondent, both the parties have agreed to withdraw all the proceeding/ complaints fled by them against each other in respect of the subject matter. Even a copy of schedule of cases fled by the parties hereto against each other is annexed to the consent terms.

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5] I say that, in these circumstances and in view of the admitted fact that the petitioners and the answering respondent have settled all the disputes inter se in between themselves amicably, the answering respondent has no objection for quashing and setting aside the FIR No. 98 registered with Khalapur police station on 08-04-2019 against the petitioners under section 447 read with 34 of IPC.

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In the backdrop of the aforesaid submissions, statements and assertions in the affdavit of respondent No. 2, we have carefully perused the material on record. It seems that the genesis of the dispute is in the claim over the alleged right of way to approach the hospital located in the land adjacent to the land of respondent No. 2. Evidently, the dispute is predominantly of civil nature. In fact, the

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Vishal Parekar, P.A.

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petitioners had instituted R.C.S. No. 68 of 2019 against the respondent No. 2. In the said suit, the parties have amicably resolved the dispute and it came to be decreed in accordance with the consent terms (Exhibit 59). It further appears that the respondent No. 2 has executed a Deed of Grant of Right of Way. It thus implies that the petitioners and respondent No. 2 have resolved the entire dispute.

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In the aforesaid view of the matter, continuation of the prosecution may not serve any fruitful purpose. It is very unlikely that respondent No. 2 would support the prosecution and it would end in conviction. On the contrary, the continuation of the prosecution may cause grave prejudice to the parties, especially when the parties have amicably resolved the entire dispute and the civil proceeding has also been terminated, with the consent of the parties.

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A profiable refere.ce i. ihis co.iexi ca. be made io ihe judgme.i of ihe Supreme Couri i. ihe case of Gia. Si.gh vs. Siaie of Pu.jab¹ , wherei. a Three Judge Be.ch of ihe Supreme Couri, exposiied ihe power of ihe High Couri io quash ihe FIR or

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1 (2012) 10 Supreme Couri Cases 303.

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Vishal Parekar, P.A.

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prosecuiio. i. exercise of iis i.here.i jurisdiciio., as u.der:

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“ 61 . ………...Bui ihe crimi.al cases havi.g overwhelmi.gly a.d predomi.a.ily civil favour sia.d o. a differe.i fooii.g for ihe purposes of quashi.g, pariicularly ihe offe.ces arisi.g from commercial, f.a.cial, merca.iile, civil, pari.ership or such like ira.saciio.s or ihe offe.ces arisi.g oui of mairimo.y relaii.g io dowry, eic. or ihe family dispuies where ihe wro.g is basically privaie or perso.al i. .aiure a.d ihe pariies have resolved iheir e.iire dispuie. I. ihis caiegory of cases, High Couri may quash crimi.al proceedi.gs if i. iis view, because of ihe compromise beiwee. ihe offe.der a.d ihe viciim, ihe possibiliiy of co.viciio. is remoie a.d bleak a.d co.ii.uaiio. of crimi.al case would pui accused io greai oppressio. a.d prejudice a.d exireme i.jusiice would be caused io him by .oi quashi.g ihe crimi.al case despiie full a.d compleie seiileme.i a.d compromise wiih ihe viciim. I. oiher words, ihe High Couri musi co.sider wheiher ii would be u.fair or co.irary io ihe i.ieresi of jusiice io co.ii.ue wiih ihe crimi.al proceedi.g or co.ii.uaiio. of ihe crimi.al proceedi.g would ia.iamou.i io abuse of process of law despiie seiileme.i a.d compromise beiwee. ihe viciim a.d wro.gdoer a.d wheiher io secure ihe e.ds of jusiice, ii is appropriaie ihai crimi.al case is pui io a. e.d a.d if ihe a.swer io ihe above quesiio.(s) is i. ihe affrmaiive, ihe High Couri shall be well wiihi. iis jurisdiciio. io quash ihe crimi.al proceedi.g.”

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(emphasis supplied)

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The aforesaid pronouncement applies with full force to the facts of the instant case. It is essentially a private dispute. It has predominantly a civil favour. There is no element of public interest.

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However, by way of abundant caution, we make it clear that the quashing of the proceeding may not be construed as imprimatur of this Court to the transactions between the petitioners and respondent No. 2. This order can not thus be construed as either

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Vishal Parekar, P.A.

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conferring the title on the petitioners or divesting the title of respondent No. 2 or any other person, either proprietary or possessory. The limited remit of this petition is quashing of the frst information report No. 98 of 2019 and the consequent proceeding on the basis of settlement arrived at between the parties.

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Subject to the aforesaid clarifcation, the petition deserves to be allowed. Hence, the following order.

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ORDER

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1] The petition stands allowed in terms of prayer clause (a) subject to the clarifcation in para No. 9. The prayer clause (a) reads as under:

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(a) This Court be pleased to issue writ of certiorari or any other appropriate writ, order of direction in the like nature under Article 226 of the Constitution of India read with 482 of Cr.P.C., thereby quashing and setting aside the impugned FIR No. 98 of 2019 registered with Khalapur police station, Tal. Khalapur, Dist. Raigad on 08/04/2019 for the offences alleged under section 447 read with 34 of I.P.C.

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2] Rule made absolute in the aforesaid terms.

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(N.J. JAMADAR, J.) (S.S. SHINDE, J.)

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Vishal Parekar, P.A.

Dr. Rohit Madhav Sane and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Dr. Rohit Madhav Sane and Ors. v. the State of Maharashtra and Anr.

Case brief

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What did the court decide?

What the court decided

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