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Ajaysing Krushnapalsing Chauhan … vs The State Of Maharashtra And Anr on 8 July, 2021

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CRIWP39-2021.DOC
Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 39 OF 2021

1. Mr. Ajaysing Krushnapalsingh Chauhan
Age : 35 years, Occu. : Service
2. Mrs. Savita alias Savitridevi
Krushnapalsing Chauhan
Age : 58 years, Occu. : Housewife
3. Mr. Krushnapalsing Narendrasingh
Chauhan
Age : 61 years, Occu. : Retired
1 to 3 R/o. Krushnakunj Colony no.2,
Ganesh Nagar, Bopkhel, Pune. …Petitioners

Versus
1. The State of Maharashtra
At the instance of Dighi Police Station,
Pune
2. Mr. Pooja Ajaysing Chauhan
Age : 34 years, Occu. : Service
R/o. A-1, Broadway Avenue, Santipark,
Mira Road, Thane. …Respondents

Mr. Saurabh D. Butala, for the Petitioners.
Mrs. S. D. Shinde, APP for the State/Respondent no.1.
Ms. Sandhya A. Mailagir, for Respondent no.2.

CORAM: S. S. SHINDE
N. J. JAMADAR, JJ.

RESERVED ON: 24th JUNE, 2021.

PRONOUNCED ON: 8th JULY, 2021.

JUDGMENT:- PER : N. J. JAMADAR, J.

1. Rule. Rule made returnable forthwith and, with the

consent of the Counsels for the parties, heard fnally.

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2. This petition under Article 226 of the Constitution of India

and Section 482 of the Code of Criminal Procedure, 1973, is

fled seeking to quash and set aside Sessions Case No.831 of

2016, arising out CR No.190 of 2015, registered with Dighi Police

Station, Pune, pending on the fle of the learned Sessions

Judge, Pune, for the offences punishable under Sections 313,

323, 406, 498(A), 504, 506 read with 34 of the Indian Penal

Code, 1860 (“the Penal Code”), in view of the settlement arrived

at between the parties.

3. The brief facts leading to this petition can be stated as

under:

(a) The marriage of petitioner no.1 Ajaysing was

solemnized with respondent no.2 Mrs. Pooja on 24 th April, 2012.

Petitioner nos.2 and 3 are the in-laws of respondent no.2. The

marriage was afficted with discord. On 27 th November, 2015.

Respondent no.2 – the frst informant lodged a report with Mira

Road Police Station alleging inter alia, that the petitioners

subjected her to cruelty in order to coerce her to meet an

unlawful demand of Rs.45,00,000/- and petitioner no.3

Krushnapalsing, her father-in-law, kicked her in the abdomen,

resulting in miscarriage. Respondent no.2 also instituted

proceedings under Protection of Women From Domestic Violence

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Act, being OMA No.321 of 2015, before the Judicial Magistrate,

First Class, Thane. A petition for divorce on the ground of

cruelty was also instituted in the Court of Civil Judge, Senior

Division, Thane.

(b) The parties were counselled. The petitioner and

respondent no.2 thus decided to amicably resolve all the

disputes. The petitioner and respondent no.2 agreed that the

marriage be dissolved by a decree of divorce by mutual consent

and pending proceedings, including the Sessions Case No.831 of

2016, be disposed of on the basis of the settlement. Hence, the

present petition.

4. A copy of the Consent Terms fled before the learned

Judicial Magistrate, First Class, Thane, in OMA No.321 of 2015,

is annexed to the petition. Paragraph nos.2 to 8 thereof read as

under:

“2. Both the parties are withdrawing allegation made by
them against each other in every proceeding.

3. The Respondent no.1 is ready to pay Rs.23,00,000/-
(Rupees Twenty Three Lakhs only) to the applicant in two
installment.

4. The Respondent no.1 is giving cheque of
Rs.10,00,000/- (Rupees Ten Lakhs only0 Cheque No.000003
of Kotak Mahindra Bank, dt.14/2/2020 today to the
applicant.

5. The Respondent no.1 will fle petition for quashing of
FIR No.190/2015 registered with Dhigi Police Station before
the Hon’ble Bombay High Court. The applicant will fle her
consent affdavit before the Hon’ble High Court for quashing.

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6. The Respondent no.1 will give Demand Drat of pending
amount of Rs.13,00,000/- (Rupees Thirteen Lakhs only) on
the day of quashing before the Hon’ble High Court to the
applicant.

7. that the applicant will withdraw the D. V. Case
No.321/2015 pending before the Hon’ble J.M.F.C., Court after
the quashing order.

8. The applicant respondent no.1 will convert the
Divorce Petition No.1004/2018 in mutual Divorce Petition
u/s.13(b) fo the H.M. Act.”

5. Respondent no.2 Mrs. Pooja has also fled an affdavit-in-

reply. Respondent no.2 has made the following assertions

therein.

“6. I say that, in due course, we i.e. the Applicants
myself decided to jointly resolve the issue and entered into
compromise. Accordingly, on 14/02/2020 we both have
signed the consent term before the Ld. J.M.F.C. Court at
Thane in OMA No.321/2015 and Application was made by us
for conversion of Petition u/s.13(B) of Hindu Marriage Act on
the ground of Mutual Consent before the Civil Judge Senior
Division, Thane, in Petition No.1004/2018.

7. I say that, as per terms, the Applicant No.1 has agreed
to pay a sum of Rs.23,00,000/- (Rupees Twenty Three Lakhs
only) to me in two installments. The Applicant no.1 has given
cheque of Rs.10,00,000/- (Rs. Ten Lakhs only) bearing
Cheque number 000003 dated 14/2/2020 of Kotak Mahindra
Bank Ltd. to me on 14/02/2020. I say that I have received
the same and encash the same. I say that, today Applicant
No.1 given me Demand Draft No.053882 dated 16/10/2020
of Rs.13,00,000/- (Rs.Thirteen Lakhs only) of Kotak
Mahindra Bank.

8. I say that, it is agreed between the Applicant No.1 and
me that Applicants shall apply to this Hon’ble High Court for
quashing the Sessions Case No.831/2016 and I undertakes
before the Court that I shall not prosecute further in the
above said criminal proceeding and also I shall extend my co-
operation to quash the criminal proceeding before this
Hon’ble Court.”

6. By an order dated 10th December, 2020, this Court had

recorded that pursuant to the resolution of matrimonial

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dispute respondent no.2 voluntarily desired to put an end to all

the proceedings. The consent of respondent no.2 to quash the

prosecution, being Sessions Case No.831 of 2016, was

specifcally recorded. Since one of the offences arrayed against

the petitioners is punishable under Section 313 of the Penal

Code, the Court was of the view that the parties were required

to be heard on the justifbaility of the prayer for quashment of

the prosecution, especially for the offence punishable under

Section 313 of the Penal Code.

7. In the meanwhile, respondent no.2 has fled an additional

affdavit in the context of the charge for the offence punishable

under Section 313 of the Penal Code. Paragraph nos.3 to 5 of

the additional affdavit read as under:

“3. I say that, in earlier affdavit I have given my no
objection to grant all reliefs in faour of the Applicant
mentioned in the aforesaid petition.

4. I say that the incident which was took place on
2/10/2015 and the Applicant No.3 who is my father-in-law
had kicked on my stomach and thereafter on 12/10/2015 my
child was aborted in the hospital. The Applicant no.3 has
kicked on my stomach but not with the intention to abort
the child. Since the matter is amicably settled between both
the parties, misunderstanding also cleared by the Applicants
and Respondent no.2 that the Applicant no.2 did not had
any intention to hurt the Respondent no.2.

5. I say that, in the present affdavit I am giving specifc
consent to quash and set aside chargesheet in FIR bearing
C.R.No.I-190/2015 against my husband and in laws u/s.313,
323, 498(A), 406 and 34 of
I.P.C. with Dighi Police Station,
Pune.”

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8. In the aforesaid backdrop, we have heard Mr. Butala, the

learned Counsel for the petitioner, Mrs. Shinde, the learned APP

for the State/respondent no.1 and Ms. Mailagir, the learned

Counsel for respondent no.2.

9. Mr. Butala, took the Court through the FIR, medical

record, the consent terms and the affdavit of respondent no.2.

It was urged that the parties have voluntarily decided to put an

end to all the disputes. Petitioner no.1 and respondent no.2 have

agreed to dissolve the marital bond. The petitioners have also

parted with a sumptuous amount of Rs.23,00,000/- (Rs.

Twenty-three lakhs only) by way of provision for respondent

no.2. In the circumstances, according to Mr. Butala, the

continuation of the prosecution would be an exercise in futility.

Notwithstanding the fact that the petitioners have been

arraigned for the offence punishable Section 313 of the Penal

Code, in the peculiar circumstances of the case, where the

marital dispute is resolved once and for all, there would be no

impediment to quash the Sessions Case No.831 of 2016, urged

Mr. Butala.

10. It is trite that where the parties have settled the dispute,

especially in cases which have a predominantly civil favour,

arise out of commercial transaction or matrimonial and family

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disputes, and all the disputes have been resolved, the Court

would be justifed in quashing and setting aside the frst

information report and consequent prosecution, so as to secure

the ends of justice and prevent the abuse of the process of the

Court. In such a situation, the continuation of the prosecution,

the possibility of which ending in a conviction is extremely

remote and bleak is considered oppressive and prejudicial to the

parties. The fact that continuation of such a prosecution would

be a futile exercise also weighs with the Court. The Courts thus

lean in favour of the quashment of the FIR/prosecution so as to

prevent the abuse of the process of the Court and secure the

ends of justice. The fact that the offence is non-compoundable

and of serious nature, entailing punishment for a term, does not

operate as a hindrance in exercising inherent jurisdiction.

11. A proftable reference in this context can be made to the

judgment of the Supreme Court in the case of Gian Singh vs.

State of Punjab1, wherein a Three Judge Bench of the Supreme

Court, considered the relative scope of the provisions contained

in Section 482 and Section 320 of the Code and exposited the

power of the High Court to quash the FIR or prosecution in

exercise of its inherent jurisdiction, as under:

1 (2012) 10 Supreme Court Cases 303.
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“61. The position that emerges from the above discussion
can be summarised thus: the power of the High Court in
quashing a criminal proceeding or FIR or complaint in
exercise of its inherent jurisdiction is distinct and different
from the power given to a criminal court for compounding
the offences under
Section 320 of the Code. 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. In what cases power to
quash the criminal proceeding or complaint or FIR may be
exercised where the offender and victim have settled their
dispute would depend on the facts and circumstances of
each case and no category can be prescribed. However,
before exercise of such power, the High Court must have due
regard to the nature and gravity of the crime. Heinous and
serious offences of mental depravity or offences like murder,
rape, dacoity, etc. cannot be fttingly quashed even though
the victim or victim’s family and the offender have settled the
dispute. Such offences are not private in nature and have a
serious impact on society. Similarly, any compromise
between the victim and offender in relation to the offences
under special statutes like
Prevention of Corruption Act or
the offences committed by public servants while working in
that capacity etc; cannot provide for any basis for quashing
criminal proceedings involving such offences. But the
criminal cases having overwhelmingly and predominatingly
civil favour stand on a different footing for the purposes of
quashing, particularly the offences arising from commercial,
fnancial, 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, High Court may quash 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 criminal case would put 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. In other words, the High Court must consider
whether it would be unfair or contrary to the interest of
justice to continue with the criminal proceeding or
continuation of the criminal proceeding would tantamount
to abuse of process of law despite settlement and
compromise between the victim and wrongdoer 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 High Court shall be well
within its jurisdiction to quash the criminal proceeding.”

(emphasis supplied)

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12. A Two Judge Bench of the Supreme Court in the case of

Narinder Singh and others vs. State of Punjab and another2

considered the question in the context of the prayer for

quashment of the prosecution for the offence punishable under

Section 307 of the Penal Code. It was observed, inter alia, that

the mere invocation of the penal provision contained in Section

307 of the Penal Code can not, by itself, be a ground to reject

the petition under Section 482 of the Code and refuse to accept

the settlement between the parties. The Court should examine

the material on record so as to ascertain the possibility of

proving the charge, at the trial, or whether the charge under

Section 307 of the Penal Code was unjustifably arrayed against

the accused. The principles were summed up in paragraph 29

of the said judgment as under:

“29. In view of the aforesaid discussion, we sum up and lay
down the following principles by which the High Court would
be guided in giving adequate treatment to the settlement
between the parties and exercising its power under
Section
482 of the Code while accepting the settlement and quashing
the proceedings or refusing to accept the settlement with
direction to continue with the criminal proceedings:
29.1. Power conferred under
Section 482 of the Code is to be
distinguished from the power which lies in the Court to
compound the offences under
Section 320 of the Code. No
doubt, under
Section 482 of the Code, the High Court has
inherent power to quash the criminal proceedings even in
those cases which are not compoundable, where the parties
have settled the matter between themselves. However, this
power is to be exercised sparingly and with caution.

2 2014 (6) SCC 466.
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29.2. When the parties have reached the settlement and on
that basis petition for quashing the criminal proceedings is
fled, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.
While exercising the power the High Court is to form an
opinion on either of the aforesaid two objectives.
29.3. Such a power is not be exercised in those
prosecutions which involve heinous and serious offences of
mental depravity or offences like murder, rape, dacoity, etc.
Such offences are not private in nature and have a serious
impact on society. Similarly, for offences alleged to have been
committed under special statute like the
Prevention of
Corruption Act or the offences committed by Public Servants
while working in that capacity are not to be quashed merely
on the basis of compromise between the victim and the
offender.

29.4. On the other hand, those criminal cases having
overwhelmingly and predominantly civil character,
particularly those arising out of commercial transactions or
arising out of matrimonial relationship or family disputes
should be quashed when the parties have resolved their
entire disputes among themselves.

29.5. While exercising its powers, the High Court is to
examine as to whether the possibility of conviction is remote
and bleak and continuation of criminal cases would put the
accused to great oppression and prejudice and extreme
injustice would be caused to him by not quashing the
criminal cases.

29.6. Offences under Section 307 IPC would fall in the
category of heinous and serious offences and therefore are to
be generally treated as crime against the society and not
against the individual alone. However, the High Court would
not rest its decision merely because there is a mention of
Section 307 IPC in the FIR or the charge is framed under this
provision. It would be open to the High Court to examine as
to whether incorporation of
Section 307 IPC is there for the
sake of it or the prosecution has collected suffcient evidence,
which if proved, would lead to proving the charge under
Section 307 IPC. For this purpose, it would be open to the
High Court to go by the nature of injury sustained, whether
such injury is inficted on the vital/delicate parts of the body,
nature of weapons used etc. Medical report in respect of
injuries suffered by the victim can generally be the guiding
factor. On the basis of this prima facie analysis, the High
Court can examine as to whether there is a strong possibility
of conviction or the chances of conviction are remote and
bleak. In the former case it can refuse to accept the
settlement and quash the criminal proceedings whereas in
the latter case it would be permissible for the High Court to
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accept the plea compounding the offence based on complete
settlement between the parties. At this stage, the Court can
also be swayed by the fact that the settlement between the
parties is going to result in harmony between them which
may improve their future relationship.

29.7. While deciding whether to exercise its power under
Section 482 of the Code or not, timings of settlement play a
crucial role. Those cases where the settlement is arrived at
immediately after the alleged commission of offence and the
matter is still under investigation, the High Court may be
liberal in accepting the settlement to quash the criminal
proceedings/investigation. It is because of the reason that at
this stage the investigation is still on and even the charge
sheet has not been fled. Likewise, those cases where the
charge is framed but the evidence is yet to start or the
evidence is still at infancy stage, the High Court can show
benevolence in exercising its powers favourably, but after
prima facie assessment of the circumstances/material
mentioned above. On the other hand, where the prosecution
evidence is almost complete or after the conclusion of the
evidence the matter is at the stage of argument, normally the
High Court should refrain from exercising its power under
Section 482 of the Code, as in such cases the trial court
would be in a position to decide the case fnally on merits
and to come a conclusion as to whether the offence under
Section 307 IPC is committed or not. Similarly, in those cases
where the conviction is already recorded by the trial court
and the matter is at the appellate stage before the High
Court, mere compromise between the parties would not be a
ground to accept the same resulting in acquittal of the
offender who has already been convicted by the trial court.
Here charge is proved under
Section 307 IPC and conviction
is already recorded of a heinous crime and, therefore, there is
no question of sparing a convict found guilty of such a
crime.”

(emphasis supplied)

13. The question again came up for consideration before the

Supreme Court in the case of State of Madhya Pradesh vs.

Laxmi Narayan and others3. A Three Judge Bench of the

Supreme Court, adverted to the previous pronouncements

including the propositions in the case of Narinder Singh (supra)

3 (2019) 5 SCC 688.

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extracted above and clarifed the legal position in the following

terms:

“15.1. That the power conferred under Section 482 of
the Code to quash the criminal proceedings for the non-
compoundable offences under
Section 320 of the Code can
be exercised having overwhelmingly and predominantly the
civil character, particularly those arising out of commercial
transactions or arising out of matrimonial relationship or
family disputes and when the parties have resolved the
entire dispute amongst themselves;

15.2. Such power is not to be exercised in those
prosecutions which involved heinous and serious offences of
mental depravity or offences like murder, rape, dacoity, etc.
Such offences are not private in nature and have a serious
impact on society;

15.3. Similarly, such power is not to be exercised for
the offences under the special statutes like
Prevention of
Corruption Act or the offences committed by public servants
while working in that capacity are not to be quashed merely
on the basis of compromise between the victim and the
offender;

15.4. Offences under Section 307 IPC and the Arms
Act etc. would fall in the category of heinous and serious
offences and therefore are to be treated as crime against the
society and not against the individual alone, and therefore,
the criminal proceedings for the offence under
Section 307
IPC and/or the
Arms Act etc. which have a serious impact
on the society cannot be quashed in exercise of powers
under
Section 482 of the Code, on the ground that the
parties have resolved their entire dispute amongst
themselves. However, the High Court would not rest its
decision merely because there is a mention of
Section 307
IPC in the FIR or the charge is framed under this provision.
It would be open to the High Court to examine as to whether
incorporation of
Section 307 IPC is there for the sake of it or
the prosecution has collected suffcient evidence, which if
proved, would lead to framing the charge under
Section 307
IPC. For this purpose, it would be open to the High Court to
go by the nature of injury sustained, whether such injury is
inficted on the vital/delicate parts of the body, nature of
weapons used etc. However, such an exercise by the High
Court would be permissible only after the evidence is
collected after investigation and the charge-sheet is
fled/charge is framed and/or during the trial. Such exercise
is not permissible when the matter is still under
investigation. Therefore, the ultimate conclusion in paras
29.6 and 29.7 of the decision of this Court in the case of
Narinder Singh (supra) should be read harmoniously and to

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be read as a whole and in the circumstances stated
hereinabove;

15.5. While exercising the power under Section 482 of
the Code to quash the criminal proceedings in respect of
non-compoundable offences, which are private in nature and
do not have a serious impart on society, on the ground that
there is a settlement/compromise between the victim and
the offender, the High Court is required to consider the
antecedents of the accused; the conduct of the accused,
namely, whether the accused was absconding and why he
was absconding, how he had managed with the complainant
to enter into a compromise etc.”

14. Mr. Butala, the learned Counsel for the petitioner, banking

upon the aforesaid pronouncements, made an earnest

endeavour to demonstrate that, in the case at hand, the charge

for the offence punishale under Section 313 of the Penal Code,

being wholly groundless, the Court would be justifed in

quashing the Sessions Case No.831/2016. A strenuous effort

was made to show that the attendant circumstances, the

medical reports and the contemporaneous statements and

conduct of respondent no.2 – frst informant and her parents, as

refected from their statements recorded during the course of

investigation, do not sustain the charge under Section 313 of the

Criminal Procedure Code (“the Code”). Thus, according to Mr.

Butala, the mere inclusion of the charge for the offence

punishable under Section 313 of the Code would not be an

impediment in quashing the prosecution.

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15. To lend support to this submission, Mr. Butala placed a

strong reliance on a judgment of the learned Single Judge of the

Delhi High Court in the case of Bhoop Singh Ors. vs. State

ors.4, wherein in the backdrop of the facts of the said case and

the propositions in the case of Gian Singh (supra), Narinder

Singh (supra) and B. S. Joshi vs. State of Haryana,5 the learned

Single Judge was persuaded to quash the prosecution for the

offence punishable under Section 313 of the Code. It was

observed, inter alia, as under:

11. It is a well settled law that where the High Court is
convinced that the offences are entirely personal in nature
and therefore do not affect public peace or tranquillity and
where it feels that quashing of such proceedings on account
of compromise would bring about peace and would secure
ends of justice, it should not hesitate to quash them. In
such cases, pursuing prosecutio wuld be waste of time and
energy. Non-compoundable offfences are basically an
obstruction in entering into compromise. In certain cases,
the main offence is compoundable but the connected
offences are not. In the case of B. S. Joshi v. State of
Hariyana (2003) 4 SCC 675 the Hon’ble Apex Court
observed that even though the provisions of
Section 320
Cr.P.C. would not apply to such offences which are not
compoundable, it did not limit or affect the powers under
Section 482 Cr.P.C. The Hon’ble Apex Court laid down that
if for the purpose of securing the ends of justice, quashing
of FIR becomes necessary,
section 320 Cr.P.c. wouldnot be a
bar to the exercise of power of quashing. In the nutshell,
the Hon’ble Apex Court justifed the exercise of powers
under
Section 482 Cr.P.C. to quash the proceedings to
secure the ends of justice in view of the special facts and
circumstances of the case, even where the offences were
non-compoundable.

12. In the light of the aforesaid, this Court is of the view
that notwithstanding the fact that the offence under
Section
313 IPC is a non-compoundable offene, there should be no
impediment in quashing the FIR under this section, if the

4 2016 SCC Online Del 1975.

5 (2003) 4 SCC 675.
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Court is otherwise satisfed that the facts and
circumstances of the case so warrant. Apparently, the penal
Section 313 Cr.P.C. has been added in the present case on
the basis of allegations but there is no evidence on record.”

16. Reliance was also placed on another judgment of a learned

Single Judge of the High Court of Jharkhand in the case of

Manoj Kumar Bhakat vs. The State of Jharkhand anr. 6,

wherein, in the facts of the said case, the learned Judge opined

that the opposite party no.2 therein had never been alleged to

have assaulted the victim with a view to cause miscarriage.

Under the circumstances, it was held, the offence punishable

under Section 313 of the Penal Code would never get attracted.

17. We have given anxious consideration to aforesaid

submissions. It is imperative to note that in the frst information

report, the frst informant – respondent no.2 alleged, in clear

and explicit terms, that on 2 nd October, 2015, she was subjected

to cruelty in order to coerce her to meet the unlawful demand of

Rs.45,00,000/-. She retorted that she was carrying pregnancy

of three months lest she would have earned and met the

unlawful demand. Thereupon, the petitioners abused and

assaulted her. There is a specifc allegation that petitioner no.3

– father-in-law kicked her on the abdomen, resulting in

bleeding. On her request, the petitioners took her to Vinod

6 2012 SCC Online Jhar 128.

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Memorial Hospital on the condition that she should not disclose

the said incident. Thus, though she informed her mother that

there was bleeding yet she did not inform her that she

was assaulted.

18. From the perusal of the statements of Dr. Suchita Milind

Yeole, who runs Vinod Memorial Multi Speciality Hospital, Dr.

Satish Shankar Shendge, who runs Suyog Diagnostic Centre,

and the Early Antenatal Scan report dated 2nd October, 2015, it

becomes evident that respondent no.2 was taken to Vinod

Memorial Hospital and Suyog Diagnostic Centre on 2 nd October,

2015. The USG revealed the following impressions:

“Single live intrauterine pregnancy with gestational age of 11
weeks 4 days.

Mild Acute Subchorionic hemorrhage.”

Indisputably, respondent no.2 suffered a miscarriage and

eventually the pregnancy was terminated on 12th October, 2015.

19. Mr. Butala, the learned Counsel for the petitioner would

urge that the allegation that respondent no.2 suffered

miscarriage on account of kick blow by petitioner no.3 is

inherently improbable. Two circumstances were pressed into

service. First, in the NC case, which was reported on 6 th

October, 2015, the parents of respondent no.2 did not allege

that respondent no.2 was assaulted on the abdomen resulting

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in bleeding. Second, there was inordinate delay in lodging the

FIR.

20. We are afraid to accede to these submissions on behalf of

the petitioners, at this stage. The material, to which we have

adverted to above, especially the statements of the medical

offcers and medical reports, lend prima facie support to the

claim of respondent no.2 that on account of the assault by

petitioner no.3 there was bleeding and she was taken to

hospitals on 2nd October, 2015. Had the matter remained at

that, different considerations would have came into play. In the

additional affdavit, fled by respondent no.2, the relevant part of

which is extracted above, respondent no.2 has made a

categorical statement that on 2 nd October, 2015, petitioner no.3-

father-in-law had kicked her on stomach and thereafter the

child was aborted on 12th October, 2015. Indeed, the

Respondent no.2 further affrmed that though the petitioner

no.3, had kicked her, yet the said act was not with intention to

cause miscarriage.

21. The aforesaid assertion of respondent no.2, on affdavit, at

this juncture, does not leave any room to question the veracity

of the factum of assault.

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22. Section 312 of the Penal Code deals with the causing of

miscarriage with the consent of the woman and prescribes

punishments of varying term depending on the question as to

whether the woman was quick with child. Section 313 of the

Penal Code, on the other hand, deals with causing of

miscarriage without the consent of the woman. It provides that

whoever commits the offence defned in Section 312, without the

consent of the woman, whether the woman is quick with child

or not, shall be punished with imprisonment for life or with

imprisonment of either description for a term which may extend

to ten years, and shall also be liable to fne. Section 312, in

turn, provides that whoever voluntarily causes a woman with

child to miscarry, shall, if such miscarriage be not caused in

good faith for the purpose of saving the life of the woman, be

punished with the prescribed sentence. In Section 312 the

mens rea is denoted by using the term, “voluntarily”.

23. Section 39 of the Penal Code defnes the term,

“voluntarily” by providing that, a person is said to cause an

effect “voluntarily”, when he causes it by means whereby he

intended to cause it, or by means which, at the time of

employing those means, he knew or had reason to believe to be

likely to cause it. Intention is thus not indispensable to bring

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about a certain consequence voluntarily. If a certain result is a

probable consequences of the means employed by a person, he

is said to have caused it voluntarily whether he really ment to

cause it or not. The term “voluntarily” comprises within its fold

intention, knowledge of, and belief as to, the consequences. The

defnition thus gives expression to the principle that a man is

presumed to intend the probable consequences of his act.

24. On the touchstone of the aforesaid ingredients of the

offence punishable under Section 313 of the Penal Code,

particularly the element of mens rea, the assertion of

respondent no.2 that though petitioner no.3 kicked her, there

was no intention to cause miscarriage, does not take the act of

the petitioner no.3 out of the dragnet of Section 313 of the Penal

Code. The context cannot be lost sight. The respondent no.2

alleged that when she retorted that she would have met the

unlawful demand, by earning on her own, but for the pregnancy

she was carrying, petitioner no.3 got enraged and kicked on her

stomach. Whether the act of the petitioner no.3 was

accompanied with the mental element is a matter for trial. The

act attributed to petitioner no.3, if proved to be with the

requisite mens rea, may answer the description of the offence

punishable under Section 313 of the Penal Code.

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25. In the case of Tulsi Devi and others vs. State of U.P.7 the

Gujarat High Court had an occasion to deal with a situation,

like the case at hand, and upheld the conviction for the offene

punishable under Section 313 of the Code.

26. The conspectus of the aforesaid consideration is that

undoubtedly the marital discord is the genesis of the instant

prosecution. It is also true that the parties have decided to bury

the hatchet and resolve all the matrimonial disputes. Yet, in the

backdrop of the nature of the accusation, especially against

petitioner no.3, which is, in a sense, reinforced by fling an

additional affdavit by respondent no.2, we are not persuaded to

exercise inherent jurisdiction qua petitioner no.3 so far as the

charge for the offence punishable under Section 313. However,

we do not fnd any impediment in quashing prosecution qua

petitioner nos.1 and 2, in respect of all the offences, and

petitioner no.3 in respect of all the offences, except the offence

punishable under Section 313 of the Penal Code. Hence, the

following order:

: ORDER :

          (i)     The petition stands partly allowed.

(ii) Sessions Case No.831 of 2016 arising out of CR

No.190 of 2015, pending on the fle of Sessions

7 1996 Cri. L.J. 940.

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Judge, Pune, stands quashed qua petitioner nos.1
Ajaysing Chauhan and 2 Mrs. Savita alias Savitridevi
Chauhan, for all the offences, and petitioner no.3
Krushnapalsing Chauhan, for all the offences, except
the offence punishable under
Section 313 of the
Penal Code.

(iii) Case to proceed against petitioner no.3
Krushnapalsigh Chauhan for the offence punishable
under
Section 313 of the Penal Code.

       (iv)    The learned Sessions Judge is requested to make an
endeavour to decide the Sessions Case as

expeditiously as possible and preferably within a
period of eight months from the date of
communication of this order.

(v) It is clarifed that the observations hereinabove have
been made for the limited purpose of determining the
justifability of the prayer for quashing the
prosecution and they shall not be construed as an
expression of opinion on the merits of the matter and
the learned Sessions Judge shall decide the Sessions
Case, in accordance with law, uninfuenced by these
observations.

27. Rule made absolute in aforesaid terms.

       [N. J. JAMADAR, J.]                             [S. S. SHINDE, J.]

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