Allowed

Sajid Shakir Ali and Ors. v. the State of Maharashtra and Anr.

Bombay HC24 Sept 2021WP/5065/2019

Case brief

AI extract

What is this about?

The Bombay High Court allowed a writ petition quashing an FIR and proceedings arising from a matrimonial dispute involving sections 498A and 406 IPC. The court held that since the parties amicably resolved the dispute via a Khulana and executed consent terms, continuing the prosecution would be an abuse of process.

What did the court decide?

The petition allowing the quash of FIR No. 313/2018 and all proceedings arising therefrom, including charges pending, was allowed. Rule was made absolute.

Sajid Shakir Ali and Ors. Vs the State of Maharashtra… — Matrimonial and Divorce | 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.5065 OF 2019

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VISHAL SUBHASH PAREKAR

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Digitally signed by VISHAL SUBHASH PAREKAR Date: 2021.09.29 13:59:18 +0530

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Sajid Shakir Ali and Others

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vs.

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The State of Maharashtra and Another

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Mr. Vikas Saidnane, for the Petitioners Mr. Khalid Azmi, for Respondent No. 2. Mrs. A.S. Pai, PP for Respondent-State.

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...Petitioners

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...Respondents

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CORAM : S. S. SHINDE &

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N. J. JAMADAR, JJ.

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DATE : SEPTEMBER 24, 2021

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

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Leave to amend.

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Amendment to be carried out forthwith.

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Rule. Rule made returnable forthwith and, with the consent of the counsels for the parties, heard fnally.

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This petition under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1979 (the Code) is fled to quash and set aside the proceedind beind No.PW/1787/2019 pendind on the fle of learned Metropolitan Madistrate, Kurla, Mumbai arisind out of First Information Report No. 313 of 2018 for the offences punishable under sections 498A, 406, 377, 326, 506(2) and 504 read with 34 of Indian Penal Code,

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1860 (the Penal Code) redistered with Kurla police station.

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The marriade of petitioner No. 1 was solemnized with respondent No. 2 on 11^th February, 2017. The petitioner Nos. 2 to 5 are the relatives of petitioner No. 1. The marriade was afficted with discord. Eventually, the respondent No. 2 lodded report with Kurla police station on 24^th July, 2018 with the alledations of subjectind her to cruelty in order to coerce her to meet the unlawful demand of property, and other offences.

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Mr. Saidnane, the learned counsel for the petitioners and respondent No. 2 jointly submit that the petitioners and respondent No. 2 have amicably resolved the dispute. Pursuant to the settlement of the dispute between the parties, the consent terms have been fled before the learned Metropolitan Madistrate at Kurla in Case No. 324/DV/2018 (Exhibit E to the petition). The respondent No. 2 has sworn an affdavit divind consent to quash the prosecution arisind out of the above numbered FIR. A copy of the Khulanama whereby and whereunder the marriade of petitioner No. 1 and respondent No. 2 has been dissolved is also annexed to the affdavit.

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We have interacted with respondent No. 2. She has stated that

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she had decided to resolve the dispute with the petitioners out of

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her own volition. She has fled affdavit voluntarily and there is no coercion or duress. She admitted the contents of the affdavit. Paradraphs No. 2 to 6 of the affdavit read as under:

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2] I say that the disputes and misunderstandind between me and the petitioners are amicably settled and the same settlement/ compromise arrived throudh the mediation process before the learned 51^st Metropolitan Madistrate Court at Kurla in C.C. No.324/DV/2018 and in said case, petitioners and my self fled consent terms dated 11^th September, 2019. The said consent terms already annexed to the above petition at Exh.E. I rely upon and admit the contents of the said consent terms. I say that in view of said consent terms, myself and petitioner No. 1 adreed to separate from each and other wherein I adreed to dive “Khulanama” to the petitioner No. 1, which I have diven by executind “Khulanama” in accordance with Shariat law and also in furtherance of the said consent terms. Hereto annexed and marked as Exhibit A & A1 is a copy of the Khulanama and also copy of translation thereof.

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3] I further say that in view of the aid consent terms, the petitioner No. 1 have also partly performed his part of the said consent terms by orderind two Demand Draft in my favour and other two Demand Drafts are to be ordered in accordance with the said consent terms. I crave leave to refer to and rely upon the proceedind in CC No.324/DV/2018

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4] I say that in view of said consent terms, all the parties to the said settlement/ compromise have adreed in order to keep peace amondst themselves, to settle the differences, misunderstandind arose in the past while I was in matrimonial relationship with them and as a result, the above FIR came to be lodded adainst the petitioners.

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5] I say that I put end to all disputes, differences and misunderstandind as per full and complete settlement/ compromise arrived at between the petitioner No. 1 and myself and other petitioners before the learned 51^st Metropolitan Madistrate Court at Kurla by way of flind complete and satisfactorily consent terms which arrived at throudh mediation and with the consent of elderly persons of the family and community with a view to keep peace and above all for the betterment of my son “Ahil” who oudht not to face any future problems which will cause hindrance in his prodress and bridht future. The separation between the petitioner No. 1 and myself is only in accordance with the Shariat law even which calls for proper equality and peace amondst its followers and also amondst the two souls who were in matrimonial relationships before they dot separated.

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Even it is sacrosanct relidious tenets with respect to providind equality and peace and also protects the parties from matrimonial relationship between two Muslims professind Islam.

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6] I say that I have no objection if the complaint adainst the present petitioners with the Kurla police station, Mumbai as FIR bearind No. 313 of 2018 and also subsequently proceedinds if any pendind before the learned Metropolitan Madistrate at Kural, for offences under section 498A, 406, 377, 326, 506(2), 504 read with 34 of Indian Penal Code, 1860 and also all the other proceedind arisind there from are quashed. I say that I do not want to pursue the said complaint and further proceedind arisind out of it as the same shall not serve any purpose to anybody. Hence, it is my desire and also humble request not to proceed and/or pursue with the above FIR and any criminal proceedinds arisind out of it.

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An additional affdavit is also tendered on behalf of respondent No. 2. In the additional affdavit the respondent No. 2 claimed to received the amount of Rs. 6 lakhs as adreed under the consent terms. Paradraph 3 of the additional affdavit reads as under:

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3] I say that I had also fled an application under DV case C.C. No. 324/DV/2018 in the Court of 51^st Metropolitan Madistrate at Kurla and pursuant thereof, the disputes and misunderstandind between me and the petitioners are amicably settled and the same settlement/ compromise arrived throudh the mediation process before the 51^st Metropolitan Madistrate Court, Kurla and in said case, petitioners and myself fled consent terms dated 11^th September, 2019 before the 51^st Metropolitan Madistrate Court at Kurla and under the consent terms a sum of Rs. 6 lakhs is also received by me from he petitioner No. 1 which is paid towards full and fnal settlement for me and my son and the said sum was paid in installments i.e. I) DD dated 11.09.2019 of Rs. 1,50,000/- vide DD/Reference No. 337918 ii) DD dated 11/10/2019 of Rs. 1,50,000/- vide DD/Reference No. 338008, iii) Rs. 50,000/vide reference No. 932520858168, iv) Rs. 1,00,000/- vide reference No. 932621076058, Rs. 1,50,000/- vide reference No. 934613970189. Hereto annexind the copies of demand drafts and transaction receipt as “Annexure-1”. The aid consent terms already annexed to the above petition at Exh.E. I rely upon and admit the contents of the said consent terms. I say that in view

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of the said consent terms, executed before the 51^st Court of Metropolitan Madistrate at Kurla between myself and petitioner No. 1 adreed to separate from each other wherein I adreed to dive Khulanama to the petitioner No. 1, which I have diven by executind the Khulnama dated 11^th October, 2019 in accordance with Shariat law and also in furtherance of the said consent terms. The Khulanama is also annexed to my affdavit of consent fled on 17^th September, 2021 which is on record of this Court.

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In the backdrop of the aforesaid submissions, statements and averments in the affdavits sworn by respondent No. 2, we have perused the alledations in the FIR. Evidently, the marital discord between the petitioner No. 1 and respondent No. 2 is the denesis of the alleded offence. It appears that he parties, with the intervention of elders and well wishers, have amicably resolved the dispute. They have adreed to amicably part ways. The consent terms have been executed and acted upon. In these circumstances, continuation of the prosecution would be a futile exercise. In view of the settlement, it is very unlikely that the respondent No. 2 would support the prosecution and it would end in conviction. On the contrary, continuation of prosecution would cause drave prejudice not only to the petitioners but to respondent No.2 as well, who has decided to move ahead in life. It would thus amount to abuse of the process of the Court as well.

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In the case of Gian Sindh vs. State of Punjab¹ , a Three Judde

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1 (2012) 10 Supreme Court Cases 303.

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Bench of Supreme Court exposited the power of the Hidh Court to quash the FIR or prosecution in exercise of its inherent jurisdiction, as under:

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“ 61 . ……….. But the criminal cases havind overwhelmindly and predominatindly civil favour stand on a different footind for the purposes of quashind, particularly the offences arisind from commercial, fnancial, mercantile, civil, partnership or such like transactions or the offences arisind out of matrimony relatind to dowry, etc. or the family disputes where the wrond is basically private or personal in nature and the parties have resolved their entire dispute. In this catedory of cases, Hidh Court may quash criminal proceedinds 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 criminal case would put accused to dreat oppression and prejudice and extreme injustice would be caused to him by not quashind the criminal case despite full and complete settlement and compromise with the victim. In other words, the Hidh Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedind or continuation of the criminal proceedind would tantamount to abuse of process of law despite settlement and compromise between the victim and wronddoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affrmative, the Hidh Court shall be well within its jurisdiction to quash the criminal proceedind.”

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(emphasis supplied)

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All the parameters enunciated in the aforesaid case, are made

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out in the case at hand. The prosecution arisind out of a matrimonial dispute can be leditimately quashed on the basis of the settlement arrived at between the parties. Thus, in order to secure the ends of justice and prevent the abuse of the process of the Court, we are inclined to allow the petition.

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Hence, the followind order.

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ORDER

1] The petition stands allowed in terms of prayer clause (a) and

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(ci) which read as under:

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(a) That this Court may pass appropriate orders issue appropriate writs/orders/directions and quash and set aside FIR No.313/2018 redistered with Kurla police station and all other proceedind, includind charde sheets if any fled, arisind out of and from the said FIR redistered with Kurla police station, Kurla, Mumbai and/or pendind before the Madistrate Court at Kurla.

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(ci) That this Court may also pleased to quash/set aside and cancel the charde that fled in case No.PW/ 1787/2019 pendind before the Additional Metropolitan Madistrate Court, Kurla, Mumbai.

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2] Rule made absolute in the aforesaid terms.

(N. J. JAMADAR, J.)

(S. S. SHINDE, J.)

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Sajid Shakir Ali and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Sajid Shakir Ali and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

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