SSK/ 1 WP/3549.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 3549 OF 2011 Rakesh Shivshankar Aas & Anr. ....Petitioners Versus State of Maharashtra & Anr. ...Respondents Mr. V T Tulpule i/b Ms. Bharati Mahant, advocate for the petitioners. Mr. Deepak R More, APP for the State. Ms. Priyanka S Manna, respondent no.2 present in person. CORAM : RANJIT MORE, J. DATED : 19th DECEMBER, 2011. P.C.: Rule. Rule is made returnable forthwith. By consent of the parties, the writ petition is heard finally. 2. By the present petition filed under Article 227 of the Constitution of India read with provisions of Section 482 of the Code of Criminal Procedure, 1973, the petitioners pray for quashing the proceedings of Sessions Case No.516 of 2011 pending before the 5th Sessions Court at Sewree, Mumbai. 3. Initially, L.T.Marg Police Station registered an offence on 17th May, 2011, at the instance of respondent no.2 under Sections 364(A), SSK/ 2 WP/3549.11 342, 323 and 34 of the Indian Penal Code, 1908 against three unknown persons, and the same was subsequently transferred to Bhoiwada Police Station. During investigation, supplementary statement of respondent no.2 as well as other witnesses came to be recorded. On the basis of the supplementary statements, offences under Sections 376, 377, 364(A), 323, 506(2) and 34 of the Indian Penal Code, 1908, were added. The police completed the investigation and charge-sheet was filed in the Court of Metropolitan Magistrate, 29th Court, Bhoiwada, Mumbai. Since the offences under Sections 376 and 377 of the IPC are exclusively tried by the Sessions Court, the case was transferred to the Sessions Court at Sewree, and at present, it is pending before the 5th Sessions Court at Sewree. 4. Respondent no. 2 has filed an affidavit in support of the petition. A copy of the said affidavit is annexed at Page 84 of the petition. In Para 2 of the said affidavit, she has stated that she knew petitioner no.1 since her childhood as both of them resided in the same building. It is also stated that there was a love affair between them for about last 4-5 years and they have had consensual relationship for about last one and half year. Respondent no.2 has further stated that her father was against her marriage to petitioner no.1. In Para 4 of the said affidavit, respondent no.2 has categorically stated that her father forced her to file complaint of SSK/ 3 WP/3549.11 kidnapping against the petitioners and that her statement was recorded by the police against her wishes, at the instance of her father. She has stated that on 27th August, 2011, she turned 18, and she and petitioner no.1 decided to get married against her parents’ wishes, and accordingly, on 29th September, 2011, she left her father’s house and went to Shri Kolkeshwar Mandir at Naigaum, where she got married to petitioner no.1 with good wishes of neighbours and friends. Respondent No.2 is now staying with petitioner no.1 as his wife. Petitioner No.1 along with his parents is supporting respondent no.2. Respondent No.2 is present before the Court, on specific query, she states that she has gone through the contents of the affidavit and understood the same. She states that she has no objection if the criminal proceedings against the petitioners are quashed. 5. Mr. Tulpule, learned counsel for the petitioners, relies upon the marriage certificate between the petitioner no.1 and respondent no.2. A xerox copy of the said marriage certificate is taken on record and marked as Exhibit “X” for identification. I have perused the same. The marriage certificate reveals that the marriage between petitioner no.1 and respondent no.2 is solemnized on 29th September, 2011 and the same is registered by the Registrar of Marriages on 19th December, 2011. Petitioner No.1 and Respondent No.2, both are major. SSK/ 4 WP/3549.11 6. Petitioner No.1, his parents and respondent no.2 are present before the Court. On being queried specifically, they stated that petitioner no.1’s marriage with respondent no.2 is solemnized on 29th September, 2011 and the marriage is registered with the Registrar of Marriages. They stated that respondent no.2 is the wife of petitioner no.1 and she is at present staying with petitioner no.1. In the above circumstances, they prayed that the criminal case pending between the petitioners and respondent no.2 be quashed and set-aside. 7. The offences under Sections 376, 377, 364A are not compoundable, however, the Apex Court in Manoj Sharma versus State and Ors. Reported in (2008) 16 SCC 1 has held that the High Court with the aid of provisions of Section 482 of the Cr.P.C. can compound offences under Sections 420, 468, 471 read with Sections 34 and 120 B of the IPC. The Apex Court in Madan Mohan Abbot Vs. State of Punjab reported in (2008) 4 SCC 582 compounded the offence under Section 406 of IPC though it was not compoundable under Section 320 of the Cr.P.C.. The Apex Court in Arun Goyal Vs. State of NCT of Delhi & anr. in Special Leave to Appeal (Cri) No. 2900 of 2009 quashed the proceedings under Section 376 of the IPC, in view of the compromise of the parties therein. The Apex Court in B. S. Joshi & ors. Versus State of Haryana & anr. SSK/ 5 WP/3549.11 reported in (2003) 4 SCC 675 quashed the criminal proceedings under Section 498 A, 323 and 406 with the aid of provisions of Section 482 of the Cr.P.C. though the said offences were not compoundable under Section 320 of the Cr.P.C.. A Division Bench of this Court in the case of Nari Motiram Hira Vs. Avinash Balkrishnan & Anr. in Writ Petition No. 995 of 2010 decided on 3 rd February, 2011 , had also an occasion to consider the provisions of Section 482 vis-a-vis 320 of the Cr.P.C. The Division Bench after taking into consideration the case laws was pleased to quash the criminal proceedings under Sections 427, 504 and 506 of IPC as well as Sections 452 and 324 of the IPC. Another Division Bench of this Court in the case of Sangram Ramchandra Jedhe Vs. The State of Mahrashtra & Ors in Criminal Application No.640 of 2011 decided on 8th September, 2011, in similar circumstances, quashed the FIR under Section 376 of the IPC. Similar view has been taken by Division Bench of this Court in the case of Anil Shankar Shedge vs. State of Maharashtra & ors. in Criminal Application No.1005 of 2011 decided on 19 th October, 2011 , while quashing the complaint under Section 376 of the IPC. The ratios of the above decisions squarely applies to the present case. In view of the above decisions, in my considered opinion, the criminal proceedings filed at the instance of respondent no.2 can be quashed and set-aside. SSK/ 6 WP/3549.11 8. Mr. More, learned APP, submitted that the offence under Section 376 of the IPC is against the Society. The offence is not merely against the prosecutrix, however, it is wrong against public at large. Mr. More, learned APP, invited my attention to the recent order of the Apex Court in the case of Gian Singh Vs. State of Punjab & Anr. Dated 23 rd November, 2010 in SLP (Cri) No.8989 of 2010. In this order, the Two- Judge Bench of the Apex Court has doubted the correctness of the view taken in earlier decisions of the Apex Court in the case of B.S.Joshi v. State of Haryana - (2003) 4 SCC 675, Nikhil Merchant v. Central Bureau of Investigation & Anr. – (2008) 9 SCC 677 and Manoj Sharma vs. State & Ors. - (2008) 16 SCC 1, and has referred the matter to larger Bench to consider the question as to whether the Court can exercise its power of quashing the F.I.R. in respect of offence which is a non-compoundable offence, merely because the parties have later on amicably resolved their dispute. This Court, however, will have to decide the matter on the basis of the binding precedent of the Apex Court. The decision of the Apex Court brought to my notice in the case of Gian Singh (supra) is an order raising doubt about the correctness of the approach or the view taken in the earlier decision of the Apex Court. It is essentially an order making reference for reconsideration of the opinion of the co-ordinate benches of the Apex Court on the subject to a larger Bench. Until the decisions of the Apex Court which are in force as of now are to be overruled, this Court would be SSK/ 7 WP/3549.11 obliged to follow the same as binding precedents. This submission has no merit. 9. So far as the role played by petitioner no.2 is concerned, it is alleged that he made phone call to respondent no.2’s father and informed him that the CD containing the images/photographs of respondent no.2 is tied to the door is concerned, the said message by no stretch of imagination can constitute threat. No further allegation are made against him. 10. Taking over all facts and circumstances of case and especially in view of amicable settlement between the parties, I am inclined to quash the proceedings. The Rule is, accordingly, made absolute in terms of prayer clause (b). The proceedings of the Sessions Case No.516 of 2011 are quashed and set-aside. (RANJIT MORE, J.)