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2009 DIGILAW 1647 (BOM)

Mohan s/o Bhaurao Mankar v. State of Maharashtra

2009-12-03

S.S.SHINDE

body2009
Judgment :- 1. This application is filed praying therein to quash the proceedings before the Chief Judicial Magistrate, Nagpur in the form of Regular Criminal Case No.1940/2007. 2. The brief facts as disclosed in application are as under:- The applicant No.1 and the non-applicant No.2 were married as per Hindu rites on 2-7-1994 at Nagpur. They are however, residing separately since 27-10-2005. Out of the wedlock of the applicant No.1 and non-applicant No.2, a male child was born on 20-7-1997, who is presently studying at Pune. 3. There were serious matrimonial disputes between the applicant No.1 and the non-applicant No.2, which consequently gave rise to various matrimonial and other litigations. The non-applicant No.2 also filed F.I.R. against the applicants with the Police Station Ambazari on 9-11-2006. Pursuant to this report, Crime No.360/2006 for the offence under Section 498-A read with 34 of the Indian Penal Code came to be registered against both the applicants. After investigation, the police also filed the chargesheet and thereafter case is registered as Regular Criminal Case No.1940/2007 and pending before the Chief Judicial Magistrate, Nagpur. 4. That, for the present, there are three matrimonial proceedings pending between the applicant No.1 and non-applicant No.2. All these cases are pending before the 4th Family Court at Bandra, Mumbai. The matrimonial case No. 2267/2007 is a petition for judicial separation, custody of child and permanent alimony filed by the non-applicant No.2. Petition No. A-301/2008 is a petition for divorce filed by the applicant No.1. Petition No. D-11/2008 is a petition filed by the applicant No.1 for the custody of the child. The above cases filed by the applicant No.1 were initially filed by him at Family Court at Nagpur, but subsequently came to be transferred to the Family Court at Bandra, Mumbai. 5. Having realized that there is no possibility of reconciliation between them, the applicant No.1 and non-applicant No.2, with the intervention of the well wishers, amicably resolved the dispute between them by mutual agreement. Applicant No.1 and non-applicant No.2 have decided and agreed to get a divorce by mutual consent. Accordingly on 10-9-2009 the consent terms were filed in the above referred three proceedings before the 4th Family Court at Bandra, Mumbai. 6. As per the above consent terms, the petition for divorce filed by the applicant No.1 was converted into a consent petition under Section 13(i)(b) of the Hindu Marriage Act, 1955. Accordingly on 10-9-2009 the consent terms were filed in the above referred three proceedings before the 4th Family Court at Bandra, Mumbai. 6. As per the above consent terms, the petition for divorce filed by the applicant No.1 was converted into a consent petition under Section 13(i)(b) of the Hindu Marriage Act, 1955. The applicant No.1 and non-applicant No.2 also agreed that the custody of the child will always remain with the non-applicant No.2. It is also recorded that the terms regarding access of the applicant No.1 to the child as detailed in the consent terms. 7. The petitioner No.1 agreed to pay an amount of Rs. 10,50,000/- to the non-applicant No.2 towards her claim of maintenance and one time maintenance for the son. It was agreed that out of this amount, a sum of Rs.5 Lakh shall be paid in the name of non-applicant No.2 by Demand Draft and balance amount of Rs.5,50,000/- will be paid by cash on 29-10-2009. It was further agreed that the non-applicant No.2 would withdraw the proceeding pending before the Chief Judicial magistrate, Nagpur as “not pressed” (Regular Criminal Case No. 1940/2007). Similarly it was also agreed that the remaining two matrimonial cases before the Family Court at Mumbai would be withdrawn. 8. On 29-10-2009 the applicant No.1 paid an amount of Rs. 5,50,000/- as agreed to the non-applicant No.2 by cash. The parties also filed revised consent terms before the 4th Family Court at Bandra, Mumbai on the same day. It is also seen from the consent terms at Annexure-B, the amount of Rs.5/- Lakh was to be paid to the non-applicant No.2 after she withdraws as “Not pressed”, the proceeding pending before the Chief Judicial Magistrate, Nagpur bearing Regular Criminal Case No. 1940/2007 on 7-11-2009 or thereafter. 9. It is joint contention of the Advocates appearing for the applicant No.1 and non-applicant No.2 that they have amicably settled the disputes between them. They have also resolved to dissolve their marriage by mutual consent and the consent terms have already been filed before the Family Court at Bandra, Mumbai. Amongst other terms it has been specifically agreed between the applicant and non-applicant No.2 that Regular Criminal Case No.1940/2007 would be withdrawn by the non-applicant No.2. 10. They have also resolved to dissolve their marriage by mutual consent and the consent terms have already been filed before the Family Court at Bandra, Mumbai. Amongst other terms it has been specifically agreed between the applicant and non-applicant No.2 that Regular Criminal Case No.1940/2007 would be withdrawn by the non-applicant No.2. 10. That since the offence under Section 498-A of the Indian Penal Code is not compoundable, it is not possible for the non-applicant No.2 either to compound the matter or to withdraw the proceeding pending before the Chief Judicial Magistrate, Nagpur. Therefore, this application is filed under Section 482 of the Criminal Procedure Code for quashing the proceedings i.e. Regular Criminal Case No.1940/2007. 11. On 25th November, 2009 this Court issued notice which was made returnable today. The learned Advocates appearing for the respective parties have agreed for final disposal of this matter. Hence, Rule. Rule returnable forthwith. Heard with the consent of both the parties. 12. The parties have placed on record joint submissions on behalf of applicant No.1 and non-applicant No.2 and those joint submissions and consent terms are duly verified by the applicant No.1 as well as non-applicant No.2. The non-applicant No.2/wife is present in the Court Hall and on query by the Court that whether the said consent terms which are included in joint submissions on behalf of applicant No.1 and non-applicant No.2 are signed by her with free consent and without coercion, in reply the non-applicant No.2 stated that, she has signed the consent terms with free will and without any coercion or pressure and those are acceptable to her and therefore, same are signed and verified. 13. The learned Advocate appearing for the applicant as well as non-applicant No.2 submitted that since the dispute between the parties is settled by way of compromise, the complaint filed before the Chief Judicial Magistrate, Nagpur may be quashed and set aside. It is further submitted that, non-applicant No.2 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 the applicants. In support of their contentions, the learned Advocate appearing for the applicants relied on reported judgment of this Court in case of Biswaroop Ghosh and others v. State of Maharashtra and others, reported in 2008 (2) Bom.C.R.(Cri.)44. Therefore, they filed present application as there is no other remedy to the applicants. In support of their contentions, the learned Advocate appearing for the applicants relied on reported judgment of this Court in case of Biswaroop Ghosh and 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 Section 482 of the Criminal Procedure Code under its inherent jurisdiction do not get curtailed by section 320 of the Criminal Procedure Code which prohibits compounding of non-compoundable offence. It is further submitted that the applicants and non-applicant No.2 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. 14. The learned A.P.P. appearing for the non-applicant No. 1/State submitted that it is true that the powers of this Court under Section 482 of the Criminal Procedure Code under its inherent jurisdiction do not get curtailed by Section 320 of the Criminal Procedure Code. The non-applicant No.2 remained present in the Court. The applicant No.1 husband was also present in the Court. 15. After hearing the learned Advocates appearing for the applicants and non-applicant No.2 and learned A.P.P. for the non-applicant No.1, I am of the considered view that in view of the judgment of this Court reported in the case of Biswaroop Ghosh & others v. State of Maharashtra, reported in 2008(2) Bom.C.R.(Cri.)44, the present application can be disposed of. 16. I have carefully perused the contents of the application and annexures thereto from pages 22 to 35. There are joint submissions on behalf of the applicant No.1 and non-applicant No.2. In those joint submissions, there are consent terms incorporated from 1 to 12. At page 32 of the compilation in paragraphs 5 and 6, it is stated that the applicant No.1 has already obtained Two Demand Drafts in favour of the non-applicant No.2 of Rs. 2,50,000/- each. The copies of the Demand Drafts are already annexed to the application as Annexure-C. The applicant No.1 shall handover these Demand Drafts to the non-applicant No.2 as soon as the present proceedings are disposed of and the proceedings before the Chief Judicial Magistrate, Nagpur are quashed. 2,50,000/- each. The copies of the Demand Drafts are already annexed to the application as Annexure-C. The applicant No.1 shall handover these Demand Drafts to the non-applicant No.2 as soon as the present proceedings are disposed of and the proceedings before the Chief Judicial Magistrate, Nagpur are quashed. That the non-applicant No.2 does not have any objection for quashing the proceedings before the Chief Judicial Magistrate, being Regular Criminal Case No.1940/2007 for the offence under Section 498-A read with Section 34 of the Indian Penal Code. 17. In view of the joint affidavit filed by the applicants and non-applicant No.2, I am of the considered view that this Court has power to grant the prayer in 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 Hon’ble Apex Court in the cases of B.S. Joshi & ors. v. State of Haryana and another, 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 curtailed by section 320 of the Criminal Procedure Code, which prohibits compounding of non-compoundable offences. 18. In view of the 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 & another 2008 ALL S.C.R. 2111, in para 10, held that – “The parties have compromised and the complainant Smt. Sadhana Madnawat categorically submitted that she does not want to prosecute the appellants. Even otherwise 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.” 19. In the result, the application succeeds. The application is allowed in terms of prayer clause (a). 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.” 19. In the result, the application succeeds. The application is allowed in terms of prayer clause (a). In view of the agreed terms of compromise, the complaint bearing Regular Criminal Case No.1940/2007 pending on the file of the Chief Judicial Magistrate, Nagpur is quashed and set aside and application is disposed of as above. Rule is made absolute in above terms.