State Mr v. A. Bagdiya

Legal Reasoning

{1} criapln1263-24.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1263 OF 2024Prashant Rameshchandra Darak APPLICANTVERSUSThe State of Maharashtra and Another RESPONDENTS.......Mr. Swapnil S. Rathi, Advocate for the ApplicantMr. S. J. Salgare, APP for respondent - State Mr. V. A. Bagdiya, Advocate for Respondent No.2....… [CORAM : NITIN B. SURYAWANSHI, & MANJUSHA DESHPANDE, J. J.] DATE : 7 th MAY, 2025 ORDER :1.By this application, filed under section 482 of the Code ofCriminal Procedure, Applicant seeks quashing of FIR in Crime No.99 of 2016 registered with Kalamnuri Police Station, DistrictHingoli for the offence punishable under section 376 (2) (n), 312,417 and 512 of the Indian Penal Code and proceedings ofSessions Case No. 30 of 2018 pending before learned AdditionalSessions Judge, Hingoli. The Applicant seeks quashing of theprosecution on merits as well as on account of settlement withthe victim / Respondent No.2.2.The victim, aged 23 years, lodged FIR on 8th June, 2016alleging that she is orphan residing with her aunt and younger {2} criapln1263-24.docbrother. In February, 2015, she had been to the shop of theApplicant along with her aunt Dhrupadabai to buy cloths. At thattime, Applicant handed her a chit containing his three mobilenumbers to her. She tore the said chit. On the same day, in theevening, her aunt disclosed to her that the Applicant obtainedher mobile number from her. Thereafter time and again theApplicant used to call her on mobile, but she did not respond.One phone call was attended by her and the Applicant expressedhis willingness to keep relations with her and promised that hewill marry her. In the month of April, 2015, the Applicant hadbeen to her house, when she was alone and he forciblyestablished physical relations with her. At that time, when shewas going to police station for lodging report, the Applicantassured her that he will marry her. Thereafter, on every night,the Applicant used to come to her room and on false promise ofmarriage, used to have physical pleasure with her. In the monthof February, 2016, she, along with the Applicant went to Shirdiand there also the Applicant continued to have physical relationswith her. Due to the physical relations, she become pregnant andthe Applicant gave her some tablets for termination ofpregnancy. When she insisted for marriage, he disclosed that heis already married and cannot perform marriage with her.Therefore, she lodged the FIR against the Applicant. {3} criapln1263-24.doc3.Learned Advocate for the Applicant submits that, from theallegations made in the FIR and the material collected during theinvestigation, it is clear that relations between the applicant andthe second Respondent, were consensual, therefore, no case foroffence punishable under section 376 (2) (n) of the Indian PenalCode is made out. He submits that, there is no material on recordto sustain charge under sections 312, 417 and 512 of the IndianPenal Code against the Applicant. There is amicable settlementbetween the Applicant and the Second Respondent and she doesnot wish to continue with the prosecution and she has given noobjection for quashing of the prosecution against the applicant.Therefore, by relying on following citations, he submits that thisis a fit case to quash the FIR and proceedings. 1. “Kapil Gupta V/s State of NCT o f Delhi and Another” AIR Online2022 SC 1300.2.Criminal Application No. 1107 of 2024 (“Ashwin SahadeoChinchulkar V/s State of Maharashtra and Another”) at Nagpur3.Criminal Application (APL) No. 232 of 2021 (Praful DhanrajTembekar V/s The State of Maharashtra and Another”) at Nagpur4.“Shivam Suraj Kapoor V/s State of Maharashtra and Another”AIR Online 2023 Bom 8135.Criminal Writ Petition No. 2641 of 2022 (Tarun Pratapmal LoharV/ State of Maharashtra and Another”) At Principal Seat {4} criapln1263-24.doc6.Criminal Application No. 743 of 2021 (“Mukesh Baban Rawtale @Pawara V/s State of Maharashtra”) at Aurangabad7.“Amit Kumar Singh V/s State of Maharashtra and Another” 2015(1) Mh.L.J. (Cri) 3444. Learned APP has vehemently opposed the applicationsubmitting that the offence of rape being serious offence andoffence against society, in the light of decision of the Apex Courtin “Daxaben V/s State of Gujrath and Others”, 2022LiveLaw (SC) 642 prosecution against the Applicant is not liableto be quashed. He further submits that facts in “Kapil Gupta”(supra), are different. In the present case, charge is alreadyframed and prosecution has examined one witness. Therefore,considering the stage of the Trial, the FIR and the prosecution isnot liable to be quashed. In the alternate, he submits that, incase this Court is inclined to allow the application, then heavycost be imposed on the Applicant and the second Respondent. 5.We have heard learned Advocate for the Applicant, learnedAPP for the State and learned Advocate for the SecondRespondent – victim at length, perused the record.6.The victim – Respondent No.2 is present in the Court. Shestates that her relations with the Applicant were consensual andshe has lodged the FIR due to misunderstanding. She hascompromised the matter with the Applicant and by forgetting the {5} criapln1263-24.docpast, she wants to move ahead in life. She may not be made toundergo agony of trial. She confirms that the consent given byher for quashing of the proceedings is voluntary, without anycoercion and duress and she has no objection to quash theprosecution against the Applicant.7.Admittedly, at the time of lodging of the FIR, the victim was23 years old and the Applicant was 37 years old. Considering ageof the Applicant, it is not possible to believe that the Applicantassured to marry with her and, therefore, she kept physicalrelations with him. Material on record indicates that relationsbetween the Applicant and the victim were consensual. In theaffidavit filed by the victim, consensual relations are admitted.She has further stated in the affidavit that she lodged the FIRdue to dispute with the Applicant. Looking to her age and brightfuture, she does not wish that prosecution against the Applicantshould continue. These facts are also confirmed by the victim inthe court, which is clear from her statement that she hascompromised the matter with the Applicant and by forgettingpast, she wants to move ahead in life and she may not be madeto undergo agony of trial and that consent given by her forquashing of the proceedings is voluntary and without anycoercion or duress. {6} criapln1263-24.doc8.In the light of aforementioned peculiar facts, it is clear thatrelations between the Applicant and the victim were consensualand it appears that the FIR is lodged when relations went sour.She has categorically admitted that due to misunderstanding,she lodged the FIR. Since the victim has compromised the matterwith the Applicant and she does not wish to face rigors of Trial,we are of the view that if in these facts, prosecution is permittedto continue, it will necessarily result in acquittal of the Applicant.Conducting of trial would be an empty formality and would be afutile exercise and it would amount to waste of judicial time andenergy. Therefore, to secure ends of justice, we deem itappropriate to invoke our inherent powers to quash theproceedings against the Applicant.9.A gainful reference can be made to the judgment of theApex Court in Kapil Gupta (supra), wherein the Apex Court hasquashed proceedings under section 376 of the Indian Penal Codeagainst the Appellant therein, on the basis of compromise,observing that -“Complainant felt that if she is made to face trial, rather thangetting relief, she would face agony of undergoing trial.Considering that the Complainant was not supporting theprosecution case, even if criminal trial is permitted to go on,it wouldend in acquittal”. {7} criapln1263-24.doc10.We are conscious of the decision of the Apex Court in“Daxaben” (supra), wherein it is held that crimes like murder,rape, burglary, dacoity and even abetment to commit suicide areneither private nor civil in nature and in no circumstance, canprosecution be quashed on compromise, when the offence isserious and grave and falls within the ambit of crime againstsociety.11.In Kapil Gupta (supra), the Apex Court has observed inparagraphs No.13 and 17 as under :“13.It can thus be seen that this Court has clearly held thatthough the Court should be slow in quashing the proceedingswherein heinous and serious offences are involved, the High Court isnot foreclosed from examining as to whether there exists material forincorporation of such an offence or as to whether there is sufficientevidence which if proved would lead to proving the charge for theoffence charged with. The Court has also to take into considerationas to whether the settlement between the parties is going to resultinto harmony between them which may improve their mutualrelationship.17. In that view of the matter, we find that though in a heinous orserious crime like rape, the Court should not normally exercise thepowers of quashing the proceedings, in the peculiar facts andcircumstances of the present case and in order to give succour toRespondent No. 2 so that she is saved from further agony of facingtwo criminal trials, one as a victim and one as an accused, we findthat this is a fit case wherein the extraordinary powers of this Courtbe exercised to quash the criminal proceedings. {8} criapln1263-24.docApplying aforesaid ratio to the facts of the present case, wefind that in view of compromise, affidavit of the victim and herstatement made in the open court, continuation of theprosecution will be a futile exercise and the case is likely to resultin acquittal. By continuation of the prosecution, the victim wouldbe required to undergo rigors of trial and it would beembarrassing for her to depose in the Court. In view of thesepeculiar facts and by relying on the aforesaid observations inKapil Gupta (supra), we are inclined to allow this application. 12.Decision in Criminal Application No.1107 of 2024 (AshwinSahadeo Chinchulkar V/s State of Maharashtra) dated 12th March,2025 is rendered in similar facts by Division Bench at Nagpur, towhich one of us (N. B. Suryawanshi, J.) was a party, whereinproceedings against the Applicant therein for offence punishableunder sections 376 (2) (n), 506 of the Indian Penal Code andunder section 3 (1) (w) (i) (ii), 3 (1) (v) (5) and 3 (2) (va) of theAtrocities Act, were quashed by observing that;“In view of the compromise arrived at between the parties and theaffidavit, no useful purpose would be served by continuingprosecution against the applicant. Even if prosecution is permittedto continue, it would amount to waste of judicial time and energyand abuse of process of Court.” 13.This Court, in similar facts, has quashed prosecution under {9} criapln1263-24.docsection 376 of the Indian Penal Code, on the basis ofcompromise, in following cases:a.Criminal Application No. 232 of 2021, (Praful DhanrajTembekar V/s State of Maharashtra) (Nagpur Bench)b.“Shivam Suraj Kapoor V/s State of Maharashtra” AIR Online2023 Bom 813 (Nagpur Bench)c.Criminal Writ Petition No. 2641 of 2022 (Tarun PratapmalLohar V/s State of Maharashtra) (Principal Seat)d.Criminal Application No. 743 of 2021 (Mukesh BabanRawtale V/s State of Maharashtra) (Aurangabad Bench)14.Applicant’s case is squarely covered by these decisions.15.At this juncture, we deem it appropriate to considerargument of the learned APP that, since charge is framed andone witness is examined in Sessions trial. In view of theobservations made by the Apex Court in “Kapil Gupta” (supra)this is not the stage to quash the proceedings.16.It is true that in the present case, charge is framed and onewitness is examined, so far. Admittedly, in the charge sheet andsessions trial, the prosecution has cited 25 witnesses. In“Narender Singh V/s State of Punjab” (2014) 6 SCC 466, itis held:“Likewise those cases where the charge is framed but the evidence isyet to start or the evidence is still at infancy stage, the High Court {10} criapln1263-24.doccan show benevolence in exercising its powers favourably, but afterprima facie assessment of the circumstances / material mentionedabove.” Learned APP, in reply to our query, has stated that thewitness examined by the Prosecution is a Panch witness.17.Since only Pancha witness is examined in the present case,it is clear that evidence is still at infancy stage. Thus, it can besaid that the trial is at initial stage and hence this Court canshow benevolence in exercising its powers favourably.On assessment of the material of the present case, wehave already arrived at a conclusion that material on recordclearly indicates that relations between the applicant and thevictim were consensual and almost for more than one year theywere in physical relations, either at the house of the victim oroutside, which is confirmed by the victim in her affidavit as wellas in the statement made in the open court. Therefore, she isnot likely to support the prosecution case and hence the trial willnecessarily result into acquittal. Conducting of the trial,therefore, would be a futile exercise. Hence, we are exercisingextraordinary jurisdiction to quash the proceedings against theApplicant. 18.For the aforestated reasons, following order is passed {11} criapln1263-24.docORDERA.Criminal Application No. 1263 of 2024 is allowed. B.FIR in Crime No. 99 of 2016 registered with KalamnuriPolice Station, District - Hingoli for offencespunishable under sections 376 (1), 376 (2)(n), 312,417, 512 of the Indian Penal Code and proceedings ofSessions Case No. 30 of 2018 pending beforeAdditional Sessions Judge, Hingoli, are herebyquashed and set aside. C.Cost of Rs.1 lakh is imposed on the Applicant.Amount of cost should be deposited by the Applicantin Government Cancer Hospital, ChhatrapatiSambhaji Nagar (Aurangabad) within a period of fourweeks from the date of uploading of this order. D.The second Respondent shall deposit the amount ofRs.1 lakh received by her towards compensation afterlodging of the FIR in question, with the GovernmentCancer Hospital, Chhatrapati Sambhaji Nagar(Aurangabad) within four weeks from the date ofuploading of this order.E.List the matter for compliance on 9th June, 2025. [ MANJUSHA DESHPANDE ] [ NITIN B. SURYAWANSHI ] JUDGEJUDGE drp/criapln1263-24.doc