1 1535.11-wp-- IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. CRIMINAL WRIT PETITION NO. 1535 OF 2011 WITH CRIMINAL WRIT PETITION NO. 1536 OF 2011 Sunjay Mahendra Kapoor. ... Petitioner. V/s. Smt.Bharati B. Makwana and another. ... Respondents. S.V. Marwadi for the applicant. N.V. Khan for respondent No.1. Ms. A.T. Jhaveri, APP for respondent No.2- State. CORAM: B.R.GAVAI, J. DATED : 14th June 2011. P.C. : Rule. Rule is made returnable forthwith. Heard by consent of parties. 2. Writ Petition No.1535/2011 has been filed by the petitioner for quashing and setting aside Crime No.293/2008 for the offence punishable under sections 376 and 323 of I.P.C. Writ Petition No.1536/2011 has been filed for quashing and setting aside Crime No.89/2011 for the offence punishable under section 394, 452, 342 read with section 34 of I.P.C. 2 1535.11-wp-- 3. The allegations in Crime No.293/2006 are to the effect that the first informant came in acquaintance with the petitioner- accused. It is alleged that the first informant's husband had died. The accused employed the complainant in his office and thereafter developed physical relationship with her. It is alleged that thereafter on several occasions the accused had sexual relationship with the complainant. It is further alleged that they also got married in a temple. It is alleged that the accused had made arrangement for residence of the complainant and also for education of the son of the complainant from her marriage. It is further alleged that on several occasions the accused had sexual relations with the complainant and also assaulted her. With these allegations the crime for the offence punishable under section 376 and 323 came to be filed. 4. The second crime came to be registered with the allegations that the accused had threatened the complainant that she should not go to the Dindoshi Court and after that he had taken away certain papers regarding the court case from the complainant. 5. Further it appears that thereafter the mater has been settled between the parties and the parties have also arrived at memorandum of understanding. The same is placed on record at page-69 of Writ Petition No.1535/2011. It appears that there are certain cases filed against the accused and complainant under certain crimes. It has been agreed that the parties shall withdraw the cases filed by them against each other and they will not prosecute the same. It is further agreed that the accused will pay Rs. 10 lakh to the complainant. It is further agreed that the accused will give flat to the complainant at Mira Road. That the complainant shall shift to the Mira Road flat and vacate the flat at Kandivli standing in the name of the company of the accused. Two demand drafts of Rs.5 lakh each are handed over by the learned counsel for the applicant to the learned counsel for respondent No.1. 3 1535.11-wp-- 6. Normally, this Court would not have entertained such a petition for quashing crime under section 482 of Cr.P.C., inasmuch as offence under section 376 is not an offence against the individual but it is offence against the society. However, the perusal of the complaint would reveal that even the ingredients to constitute offence under section 376 are not made out. The complainant as well as the accused are the persons aged 37 and 57 years respectively. Even taking the allegations on its face value, it would reveal that it is a case of consent. Even perusal of the investigation papers which are annexed along with the complaint would reveal that even if the case is sent to trial, the conviction of the accused would be an impossibility. In any case, when the complainant herself, who is present in the Court, states on affidavit that she does not want to prosecute the criminal case, no purpose would be served in keeping the criminal proceedings pending. It appears that the case arose out of initial relationship while complainant was working with the accused and, subsequently, there were differences on account of property issues and the first marriage of the accused. In that view of the matter, I find that even if the trial Court is permitted to proceed, there is no possibility of accused being convicted. The parties have resolved all their disputes including material disputes. In that view of the matter, I find that in view of the extra ordinary circumstances appearing in the matter, it would be in the interest of justice that this Court should give an end to the various criminal as well as civil proceedings between the parties. 7. However, at the same time the parties need to be saddled with the costs for unnecessarily setting the police machinery on motion for settling their personal disputes. While allowing these petitions, it is directed that the petitioner shall pay costs of Rs.40,000/- in first petition and Rs.10,000/- in second petition. 4 1535.11-wp-- 8. Rule in both these petitions, is made absolute in terms of prayer clause (b), however, subject to costs which are quantified in the sum of Rs. 40,000/- and Rs.10,000/- respectively. The petitioner shall draw demand drafts of the aforesaid amounts in favour of Police Welfare Fund, Mumbai Police, Mumbai and deposit the same with the office of the Public Prosecutor, High Court, Mumbai within a period of two weeks from today and place receipt thereof on the record of the matter. (B.R.GAVAI, J.)