Bombay High Court
Azhar Zafrul Islam Siddique And Ors vs The State Of Maharashtra And Anr on 25 January, 2021
Equivalent citations: AIRONLINE 2021 BOM 273
Author: S.S.Shinde
Bench: S.S.Shinde, Manish Pitale
1/5 Judgment WP-161-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.161 OF 2021
1. Azhar Zafrul Islam Siddique )
Age 30 years, Occ : Unemployed, )
Residing at room No.6, )
2nd floor, Africawala Building, )
24, New Kazi street, Mumbai 400 003 )
)
2. Zafrul Islam Siddique, )
Age 62 years, Occ : Retired, )
Residing at room No.6, )
2nd floor, Africawala Building, )
24, New Kazi street, Mumbai 400 003 )
)
3. Nikhat Zafrul Islam Siddique )
Age 55 years, Occ : Housewife )
Residing at room No.6, )
2nd floor, Africawala Building, )
24, New Kazi street, Mumbai 400 003 )
)
4. Mumtaz Mushtaq Mirza, )
Age 33 years, Occ : Housewife )
Residing at Room No.6, )
2nd floor, Africawala Building, )
24, New Kazi street, Mumbai 400 003 ) .. Petitioners
VERSUS
1. State of Maharashtra )
At the instance of Pydhonie Police )
Station )
)
2. Nazia Abdul Haque Shaikh, )
Aged 27 years, Occ : Housewife, )
Residing at 69/73, New Kazi Street, )
Fazal Building, 2nd Floor, Room No.14, )
Mumbai 400 003 ) .. Respondents
M.M.Salgaonkar
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Mr.Khushnood Akhtar i/b Mr.Saeed Akhtar for the Petitioners.
Mr.Khalid Ansari i/b Mr.F.Y.Solkar for Respondent No.2.
Respondent No.2 present in Court.
Mrs.S.D.Shinde, APP for the Respondent/State.
CORAM : S.S.SHINDE &
MANISH PITALE, JJ.
DATED : 25th JANUARY, 2021
ORAL JUDGMENT (PER S.S.SHINDE, J.)
1. Rule. Rule made returnable forthwith, with the consent of the parties and heard finally.
2. Learned counsel appearing for the Petitioners and Respondent No.2, on instructions, submit that the parties have amicably settled the dispute. Learned counsel appearing for Respondent No.2, has tendered across the bar, the affidavit-in-reply. Same is taken on record.
3. Respondent No.2 is present before this Court. It is stated by her that it is her voluntary act to enter into such settlement and prayed for quashing the impugned FIR.
4. Since the Respondent No.2 has decided not to pursue the allegations in the FIR, further continuation of the investigation/proceedings arising out of Crime No.309 of 2020 for the offences punishable under Sections 498A-377, 354, 406, 504 read with Section 34 of the Indian Penal Code and Sections 3 and 5 of the Dowry Prohibition Act would be an exercise in futility and the abuse of the process of the Court.
M.M.Salgaonkar
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5. Paras 1 to 9 of the affidavit-in-reply filed by Respondent No.2 read as under:
"3. I say that I am the original Complainant in the FIR registered against the Petitioners at Pydhoni Police Station being C.R.No.309 of 2020 for offences punishable u/s 498 A, 377, 354, 406, 504, 34 I.P.C., section 3 r/w section 5 of Dowry Prohibition Act 1961.
4. I say that after registration of the said F.I.R., sincere efforts for reconciliation were made by elders of both families and friends, as a result we have settled out dispute amicably, and both have decided to part away from the said Matrimonial knot as living together as a husband and wife would be intolerable.
5. I say that it is mutually decided between me and Petitioner No.1 to dissolve the said marriage by Divorce by Mutual Consent (Mubaraat), and on 03.12.2020 Deed of Divorce by mutual consent i.e. (Mubaraat) between Complainant and Petitioner No.1 came to be executed on terms and condition more specifically set out in Deed of Divorce.
6. I say that I have accepted the Rs.2,00,000/- by way of Demand Draft bearing No.009974 dated 2-12-2020, drawn on the AXIS BANK, Peddar Road Branch, Mumbai. That the remaining amount of Rs.2,00,000/- will be given to me at the time of withdrawal of present FIR/case.
7. I say that I have agreed not to pursue the said FIR lodged by me at Pydhoni Police Station being C.R.No.309 of 2020 for offences punishable u/s 498A, 377, 354, 406, 504, 34 I.P.C., section 3 r/w section 5 of Dowry Prohibition Act, 1961.
8. I have also agreed not to take any further action against the Petitioners in pursuance to the said F.I.R. lodged against them and I am ready for quashing of the said F.I.R..
M.M.Salgaonkar
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9. I hereby give my full and absolute consent and No- Objection for quashing the said F.I.R. registered by me at Pydhoni Police Station being C.R.No.309 of 2020 for offences punishable u/s 498A, 377, 354, 406, 504, 34 I.P.C., section 3 r/w section 5 of Dowry Prohibition Act, 1961."
6. Upon perusal of the aforesaid averments in the affidavit-in- reply of Respondent No.2, it is abundantly clear that the parties have set at rest the controversy and Respondent No.2 has no objection for quashing the FIR.
7. The Supreme Court in the case of Giansingh v. State of Punjab & Anr.1 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 offences 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 resolved 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 has also held that 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.
1 2012 (10) SCC 303
M.M.Salgaonkar
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8. In light of the discussion in the aforesaid paragraphs and to prevent further abuse of the process of the Court, we are inclined to allow this petition. The impugned FIR i.e. Crime No.309 of 2020 is quashed and set aside.
8. Rule is made absolute in terms of prayer clause (a), which reads as under :
"(a) That the FIR bearing no.309 of 2020 dated 19 th Sept.
2020 u/s 498A, 377, 354, 406, 504, 34 of I.P.C. and section 3 r/w section 5 of Dowry Prohibition Act 1961 registered at Pydhonie Police Station be quashed and set aside in view of the deed of divorce by mutual consent dated 3 rd December, 2020."
9. The writ petition stands disposed of accordingly.
10. The parties shall strictly abide by the consent terms.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
M.M.Salgaonkar
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