Bombay High Court High Court

Sachin Raosaheb Phunde vs Sou.Sarika Sachin Phunde on 20 January, 2009

Bombay High Court
Sachin Raosaheb Phunde vs Sou.Sarika Sachin Phunde on 20 January, 2009
Bench: S. S. Shinde
              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




                                            ::: Downloaded on - 09/06/2013 14:16:00 :::
                                          (    2     )




     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




                                                            ::: Downloaded on - 09/06/2013 14:16:00 :::
                                            (     3    )




     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

::: Downloaded on – 09/06/2013 14:16:00 :::
( 4 )

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

::: Downloaded on – 09/06/2013 14:16:00 :::
( 5 )

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




                                                              ::: Downloaded on - 09/06/2013 14:16:00 :::
                                           (   6    )




     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




                                                          ::: Downloaded on - 09/06/2013 14:16:00 :::
                                             (    7   )




     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)

::: Downloaded on – 09/06/2013 14:16:00 :::
( 8 )

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.

::: Downloaded on – 09/06/2013 14:16:00 :::
( 9 )

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.

::: Downloaded on – 09/06/2013 14:16:01 :::

                                          (   10    )




     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

::: Downloaded on – 09/06/2013 14:16:01 :::
( 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




                                                              ::: Downloaded on - 09/06/2013 14:16:01 :::
                                           (     12   )




     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

::: Downloaded on – 09/06/2013 14:16:01 :::
( 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

::: Downloaded on – 09/06/2013 14:16:01 :::