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2009 DIGILAW 91 (BOM)

Sachin Raosaheb Phunde v. Sou. Sarika Sachin Phunde, R/o. A/p. Ramrao Govindrao Jadhavar

2009-01-20

S.S.SHINDE

body2009
Judgment : 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 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 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 the case of the applicants that the respondent due to 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 applicants. 7. 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 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 Procedure Code, the subsequent developments occurred whereby the parties have amicably arrived at 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 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 submitted that since the dispute between the parties is settled by way of compromise, 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. 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 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 relevant portion of the order. 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 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 of the considered view that in view of the judgment of this 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. 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) 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 the Family Court No. 4, Pune. Another case is filed i.e. Sachin Vs. Sarika bearing 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 cooperate with each other and this is acceptable to parties to this compromise deed. 15. Inpara 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. 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 their relationship and filed divorce petition before the appropriate Court and this decision is taken by consent of both the parties. 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 their relationship and filed divorce petition before the appropriate Court and this decision 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.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 Rs.3,51,000/- as a maintenance amount for a whole life and she is not willing to conduct 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 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. 1 wife remained present before this Court on the date of hearing. The wife respondent No. 1 was specifically asked whether agreement terms of Exh. 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. 1 wife remained present before this Court on the date of 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 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 curtailed by section 320 of Criminal Procedure Code, which prohibits compounding of 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 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 the result, the application succeeds. 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 the result, the application succeeds. Application is allowed in terms of prayer clause 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.