IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO.3299 OF 2008
1. Sachin Raosaheb Phunde,
2. Raosaheb Laxman Phunde,
3. Shashikala Raosaheb Phunde,
4. Sushash Raosaheb Phunde,
All Above R/o. 20.21, Raghoba
Patil Nagar, Kharadi, Tq. Haveli,
Dist. Pune.
..Applicants.
VERSUS
1. Sou.Sarika Sachin Phunde,
R/o. A/p. Ramrao Govindrao
Jadhavar, Panchayat Samitee
Vasahat, Paranda, Tq.Paranda,
Dist. Osmanabad.
2. State of Maharashtra
..Respondents.
Shri.S.S.Sayyad, Advocate for applicants.
Shri.A.V.Sant & Shri.S.R.Dheble, Advocate for
respondent No. 1.
Shri.N.H.Borade, A.P.P. for State.
CORAM : S.S.SHINDE, J.
DATED : 20th JANUARY, 2009.
PER COURT
. Rule, heard forthwith with consent of parties.
. This criminal application is filed praying
that in view of agreed terms of compromise deed in
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M.A.No. 23/2007, dated 10.9.2008, the complaint
bearing R.C.C.No.29/2008, pending in the Court of
Judicial Magistrate, First Class, Paranda dated
29.05.2007 may kindly be quashed and set aside.
2. Brief facts of the case are as under.
. Applicant Nos. 1 and 4 are sons of applicant
Nos. 2 and 3. The applicant No. 1 is Civil Engineer
and applicant No. 4 is student.
3. The
applicant No. 1 married with the
respondent No. 1 on 16-6-2006. After marriage the
respondent resided with the applicant No. 1 at Pune.
It is the case of the applicant that the respondent
No. 1 stayed for 4 days at Pune, thereafter, she went
to her parent’s house. She stayed there till
10.7.2006. Again she went to Pune and stayed there
with applicant No. 1 till 19-7-2006. On 19th July,
2006 she went to her fathers house along with her
brother who came to take her.
4. It is further case of the applicants that in
spite of repeated requests on telephone, respondent
had not come to Pune, therefore, the applicant No. 2
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went to bring her back. However, the respondent No.
1 refused to come back.
5. It is further case of the applicants that
respondent No. 1 came to Pune along with her parents
and other relatives on 28th August, 2006. The
respondent No. 1 and her relatives, on the same day,
had taken away all the belongings including golden
ornaments, clothes which were given at the time of
marriage without permission of applicant No. 1. It
is
to
the case of the applicants that the respondent due
misunderstanding filed false private complaint and
all the applicants’ family members were arrayed as
accused persons to the said complaint. The said
private complaint was filed by the respondent on 29th
May, 2007 in the Court of Judicial Magistrate, First
Class, Paranda.
6. The Judicial Magistrate, First Class, Paranda
on 25.7.2007 directed the investigation under section
156(3) of Criminal Procedure Code. After completion
of investigation, the police authorities filed
chargesheet on 13.5.2008 and on the basis of that
chargesheet, the Judicial Magistrate, First Class,
Paranda had issued process on 9-6-2008 against the
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applicants.
7. At the same time, the respondent/complainant
had filed maintenance proceedings before the learned
Judicial Magistrate, First Class, Paranda bearing
M.A.No. 23/2007 on 29th January, 2007 against the
applicant No. 1.
8. It is the case of the applicants that after
filing the criminal proceedings under section 125 of
Criminal
occurred
Procedure Code, the subsequent
whereby the parties have amicably arrived at
developments
compromise and filed the same before the learned
Judicial Magistrate, First Class, Paranda on 10th
September, 2008.
9. It has been specifically stated in the
compromise deed that the respondent had filed the
complaint against the present applicants and other
relatives under section 498-A of Indian Penal Code by
way of misunderstanding and therefore, the respondent
had decided herself to withdraw the complaint bearing
No. 29/2008. The respondent No. 1 further
undertakes that she is not having any grievance
against the applicants. Therefore, she is not
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interested to conduct the proceedings. It is further
case of the applicants that parties have arrived at
compromise deed, but, due to non compoundable offence,
they cannot withdraw the complaint. Therefore, the
applicants have filed this application under section
482 of Criminal Procedure Code for quashing the
complaint bearing No. 29/2008 as there is no any
other efficacious remedy available to the applicants.
10. The learned counsel appearing for the
applicants
the parties
submitted
is
that since the dispute
settled by way of compromise,
between
the
complaint filed before the Judicial Magistrate, First
Class, Paranda may be quashed and set aside. It is
further submitted that the respondent No. 1 wants to
withdraw the complaint, but due to non compoundable
offence, the complainant cannot withdraw the
complaint, therefore, they filed present application
as there is no other remedy to applicants. In support
of his contentions, the learned counsel for the
applicants relied on reported judgment of this Court
in the case of Biswaroop Ghosh & Others V. State of
Maharashtra and others, reported in 2008(2) Bom.C.R.
(Cri.) 44. He further submitted that it is held in
that judgment that the powers of High Court under
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section 482 of Criminal Procedure Code under its
inherent jurisdiction do not get curtailed by section
320 of Criminal Procedure Code which prohibits
compounding of un compoundable offence. It is further
submitted that the applicants and respondent No. 1
have approached this Court not for compounding, but
for quashing the F.I.R., hence, the F.I.R. and
chargesheet are liable to be quashed. The learned
counsel, during the course of hearing of the matter,
produced copy of the order passed by the Civil Judge,
Senior
Division, Osmanabad and read out the
portion of the order.
relevant
11. The learned A.P.P. appearing for the
respondent No. 2 submitted that it is true that the
powers of this Court under section 482 of Criminal
Procedure Code under its inherent jurisdiction do not
get curtailed by section 320 of Criminal Procedure
Code. The respondent No. 1 remained present in the
Court. The applicant No. 1 husband was also present
in the Court.
12. The applicant No. 1 husband and respondent
No. 1 wife were called upon to express themselves
about the compromise. The respondent wife stated that
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she agreed for the compromise and with free consent
the compromise deed is filed and she stated that in
view of the compromise deed, she is not interested to
pursue the complaint bearing R.C.C.No. 29/2008,
pending in the Court of Judicial Magistrate, First
Class, Paranda and stated that same may be quashed and
set aside.
13. After hearing the learned counsel appearing
for the applicants and respondent No. 1 and 2, I am
this
of the considered view that in view of the judgment of
Court reported in the case of Biswaroop Ghosh &
Others Vs. State of Maharashtra, reported in 2008(2)
Bom.C.R. (Cri.) 44, the present petition can be
disposed of.
14. I have perused the contents of the
application. At Exh. D to this application, there is
a copy of compromise deed filed in Misc. Application
No. 23/2007 by the applicants and respondent No.1 on
10.9.2008. In the said compromise deed, in para 2, it
is mentioned that the respondent/wife filed
application for maintenance. In said application, the
applicant No. 1 has paid lump-sum amount of
Rs.3,51,000/- (Rs. Three lacs, fifty one thousand)
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towards maintenance which is accepted by the
applicants as one time settlement. In para 3, it is
stated that from misunderstanding, the applicant No.
1 and the respondent No. 1 have filed various cases
against each others. It is further stated that the
case is filed before the Civil Judge, Senior Division,
Osmanabad i.e. H.M.P. No.22/2006 by the applicant
No. 1. Another case bearing R.C.C.No. 1155/07 was
also filed before Judicial Magistrate, First Class
(6), Pune. Further, another case is filed i.e.
P.K.No.38/07
before
Another case is filed i.e.
the Family Court No.
Sachin Vs.
4,
Sarika bearing
Pune.
R.C.C.No. 494/07 which is pending before Judicial
Magistrate, First Class, Court No. 5. It is further
stated that Criminal Revision Petition No. 538/08 is
pending before the District and Sessions Court, Pune.
It is further stated that the applicants and
respondent No. 1 have agreed by consent to withdraw
all these cases and co-operate with each other and
this is acceptable to parties to this compromise deed.
15. In para 4, it is stated that the applicant has
filed R.C.C.No. 29/2008 before Judicial Magistrate,
First Class, Paranda under section 498-A of I.P. Code
against the respondents and their relatives i.e.
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State Vs. Sachin, by misunderstanding and she herself
has decided to withdraw that complaint. It is further
stated that the applicant/respondent No. 1 had no any
complaint against the respondents/ applicants and
their relatives and she does not want to prosecute
R.C.C.No. 29/2008 pending before the Judicial
Magistrate, First Class, Paranda. Both the parties
agreed for the contents in para 4. In para 5, it is
further stated that the respondent No. 1 and
applicant No. 1 by their free will have decided to
end
before
their
the
relationship
appropriate
and filed
Court and this
divorce
decision
petition
is
taken by consent of both the parties. It is further
stated that both the parties would have no
relationship with each other, henceforth and they will
not claim any right and they will not file any
criminal or civil case against each other. It is also
agreed to co-operate with each other in divorce
proceeding. After divorce both the parties will free
to get marry. This is acceptable to both the parties.
In para 6, it is further stated that both the parties
have agreed to resolve dispute and both the parties to
bear their own expenses and same is acceptable. In
the end, it is prayed that in respect of contents of
the application and terms between the parties, Misc.
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Application No. 23/2007 may be disposed of.
16. The learned Judicial Magistrate, First Class,
Paranda on 10th September, 2008 has passed the order
which reads thus :-
. Applicant present, identified by Adv.
D.A.Nikalji. Oppendent present, he is
identified by Adv.A.S.Sayyad. Applicant
admits that she received amount of
whole
Rs.3,51,000/- as a maintenance amount for
life and she is not willing to conduct
a
further this application. Both parties
further admit their signatures and contents.
Hence, purshis is read and recorded in respect
of this application only.
17. During the course of hearing, the learned
counsel appearing for the applicants, has tendered
certified copy of the application filed before Civil
Judge, Senior Division, Osmanabad being
H.M.P.No.22/2007 and order passed by the Civil Judge,
Senior Division, Osmanabad reads thus :-
. The Petitioner and respondent
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( 11 )voluntarily filed compromise deed Exh. 25 and
settled their dispute amicably. Hence,
petition is allowed in terms of compromise
deed Exh. 25 and in view of these compromise
terms, it is declared that petitioner and
respondent separated by decree of divorce.
The effect of this order and decree be
implemented after one month from the date of
this order.
18. The
applicant husband and respondent No.
wife remained present before this Court on the date of
1
hearing. The wife respondent No. 1 was specifically
asked whether agreement terms of Exh. 25 in
Misc.Appln.No. 23/2007, dated 10.9.2007 have been
recorded with her free consent. She specifically
stated that those terms are acceptable to her. She
has no grievance against the applicants now. They
have mutually agreed for the contents in the said
application. She further stated that she has no any
hesitation or objection to support this application
filed by the applicants before this Court.
19. In view of the above, I am of the considered
view that this Court has power to grant the prayer in
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the application. This Court has already taken a view
in the case of Biswaroop Ghosh & Others V. State of
Maharashtra and others, 2008(2) Bom. C.R. (Cri.) 44
by relying the judgment of the Apex Court in the cases
of B.S.Joshi & ors. V. State of Harayana and anr,
reported in 2004(1) Bom.C.R.(Cri.) 93 and in the case
of Abasaheb Yadav Honmane Vs. State of Maharashtra
reported in 2008(1) Bom. C.R.(Cri.) 584 that the
powers of High Court under section 482 of Criminal
Procedure Code under its inherent jurisdiction do not
get
Code,
curtailed
which
by section 320 of
prohibits compounding of
Criminal Procedure
uncompoundable
offences.
20. In view of above discussion, I am of the view
that no purpose will be served by keeping this
application pending. The Hon’ble Supreme Court in the
case of Dr.Arvind Barsaul etc. Vs. State of Madhya
Pradesh & Anr. 2008 ALL S.C.R. 2111, in para 10,
held that :-
. The parties have compromised and the
complainant Smt. Sadhna Madnawat
categorically submitted that she does not want
to prosecute the appellants. Even otherwise
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( 13 )also, in the peculiar facts and circumstances
of the case and in the interest of justice, in
our opinion, continuation of criminal
proceedings would be an abuse of the process
of law. We, in exercise of our power under
Article 142 of the Constitution, deem it
proper to quash the criminal proceedings
pending against the appellants emanating from
the F.I.R. lodged under section 498-A, I.P.C.
21. In
Application
the
is
result, the application
allowed in terms of prayer clause
succeeds.
B.
In view of agreed terms of compromise deed in
M.A.No.23/2007 dated 10.9.2008, the complaint bearing
R.C.C.No.29/2008 pending in the Court of Judicial
Magistrate, First Class, Paranda dated 29.5.2007 is
quashed and set aside and application is disposed of
as above.
[ S.S.SHINDE, J.]
ssc/criapln3299.08
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