Bombay High Court
Anjusingh Pramodsingh Rajput vs The State Of Maharashtra on 30 January, 2009
Author: S.S.Shinde
Bench: S.S.Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 1940 OF 2008
Anjusingh Pramodsingh Rajput,
Age 38 yrs., Occu. Household,
R/o. Plot No.A-6, Raj Nagar,
Bansilal Nagar, Aurangabad.
..Applicant.
VERSUS
1. The State of Maharashtra
2. Pramodsingh Bhagwanshigh Rajput,
Age 41 yrs., Occu. Business,
R/o. Plot No.A-6, Guruprasad
Apartment, Rajnagar, Bansilal
Nagar, Dist. Aurangabad.
ig ..Respondents.
Shri.Vijay Sharama, Advocate holding for
Shri.D.U.Lokhande, Advocate for applicant.
Shri.N.H.Borade, A.P.P. for State/respondent No. 1.
Shri.D.V.Ratnaparkhi, Advocate for respondent No. 2.
CORAM : S.S.SHINDE, J.
DATED : 30th JANUARY, 2009.
JUDGMENT
. Rule. Heard forthwith with the consent of the parties.
2. This application is filed praying that the Sessions Case No. 188/2007 pending in the Court of 2nd Additional Sessions Judge at Aurangabad may be ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 2 ) quashed in view of the compromise taken place in between the applicant, who is original complainant and respondent No. 2, who is husband of the applicant.
3. Background facts of the case are as under:-
. The applicant married with the respondent No. 2 about 17 years back. The marital relationship is tied till now. The applicant has no issue from the wedlock with respondent No. 2. However, the applicant and respondent No. of the brother of the applicant.
2 have adopted the son
4. The present applicant filed complaint and on her complaint, the offence is lodged against the respondent No. 2 on 27.7.2004 at Kranti Chowk Police Station under section 307 of Indian Penal Code vide Crime No. I-206/2004.
5. In pursuance to the complaint investigation was carried out and charge-sheet is filed by the police before Judicial Magistrate, First Class at Aurangabad against the respondent No. 2 for commission of offence punishable under section 307 of Indian Penal Code. The learned J.M.F.C. at ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 3 ) Aurangabad pleased to commit the case to the Court of Sessions since the offence under section 307 is exclusively triable by the Court of Sessions. The said case is registered as Sessions Case No. 188/2007 and the same is pending before the 2nd Additional Sessions Court at Aurangabad. It is further case of the applicant that the evidence is yet to be recorded before the Sessions Court.
6. The applicant states that considering the future she carrier of the applicant and considering has no source of income so as to lead her that future marital life, considering the fact that the applicant has no permanent source of income, considering the relationship between the applicant and respondent No. 2, the applicant has reached to the conclusion to compound the offence which is levelled against the respondent No. 2. It is further case of the applicant that the offence under section 307 is not compoundable, however, in the special circumstances, the applicant has filed the present application for quashing of the proceedings. It is the case of the applicant that she has spend almost 17 years in the house of respondent No. 2 and the relationship is yet not broken. During this period there was no serious ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 4 ) grievance of applicant against the respondent No. 2.
There was no harassment or ill-treatment caused by the respondent No. 2 during the span of 17 years. Having regard to her age, the age of the respondent No. 2 and having regard to great span of 17 years of marital life, the applicant has come to the conclusion to forgive the respondent No. 2 for his wrongful acts which are alleged in the complaint by the complainant/applicant. It is further case of the applicant that if the respondent No. 2 is punished for her his wrongful acts, ultimately the applicant adopted son is going to be affected. Therefore, and the applicant has come to the definite conclusion that this application for quashing of the proceedings pending before the Sessions Court against the respondent No. 2 may be entertained and allowed.
7. It is further case of the applicant that she has filed this application for quashing of the proceedings pending before the lower Court and filed affidavit in support of the application. She has knowledge that she may be involved in the offence of perjury if she denies the allegations made in the complaint. It is further case of the applicant that the proceedings pending before the lower Court arising ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 5 ) out of matrimonial dispute in between the applicant and the respondent No. 2 in the interest of the applicant/complainant herself, the application is filed praying for quashing the proceedings pending before the Sessions Court.
8. It is further case of the applicant that if the proceedings pending against the respondent No. 2 before the Sessions Court is allowed to be continued then there is every possibility of conviction to the respondent prescribed No. 2 and for the offence u/s.
the punishment
307 of I.P.C.
which
is up
is
to the extent of life imprisonment. If the applicant
is convicted in the said offence, then the learned
Additional Sessions Court may impose the severe
punishment to the respondent No. 2. In that case,
the respondent No. 2 is not only sufferer, but the
applicant and her adopted son would be also sufferers.
Presently, it is not desire of the applicant to punish the respondent No. 2. Considering the future life of the applicant, she compromised her all disputes with the respondent No. 2 outside the Court and therefore, the applicant is invoking the inherent powers of this Court for quashing the proceeding in view of the compromise which as taken place in between the ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 6 ) applicant and respondent No. 2.
9. It is the case of the applicant that the respondent No. 2 has assured the applicant that he will treat the applicant and her adopted son happily and he will give love in her future life.
10. It is further case of the applicant that she is not going to claim the compensation from the respondent No. 2 if the proceeding pending against the respondent No. ig 2 is quashed.
11. It is further case of the applicant that after quashing the proceedings pending against the respondent No. 2, he shall not file the civil or criminal proceeding against the applicant in connection with the allegations made by the applicant against the respondent No. 2 in the criminal case pending before 2nd Additional Sessions Court at Aurangabad. It is further case of the applicant that respondent No. 2, as agreed between applicant and respondent No. 2, will not claim damages after quashing of the proceedings pending against the respondent No. 2.
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12. It is further case of the applicant that after the alleged incident of assault, the applicant is staying on the address given in the title clause and from the date of earlier incident, subsequently no any untoward incident has occurred. The applicant wants to lead further marital life with the respondent No.
2. The respondent No. 2 has transferred the household property i.e. house by registered sale deed on 21st April, 2008 situated in Rajnagar which is approximately 86 Sq. Meter having C.T.S. No. 19202.
has changed It is the case of the applicant that respondent No. his attitude and behaviour with 2 the applicant. That is also one of the reason why the applicant has reached to the conclusion of compromise with the respondent No. 2 in relation with the alleged incident of assault.
13. It is the case of the applicant that it is true that the offence u/s. 307 is not compoundable as per the provisions of section 320 of Criminal Procedure Code. However, in the special circumstances, this Court is empowered to quash the proceedings when the parties have arrived at a compromise, that too in the matrimonial cases.
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14. It is the submission of the applicant that
there are various judgments of this Court and Supreme
Court which can be relied upon in support of the
contention of the applicant. It is the case of the
applicant that this Court has power to quash the
proceedings and that the powers envisaged under
section 320 of Cr.P.C. are limited, but the powers of
this Court envisaged under section 482 are not limited to quash the proceeding, that too arising out of matrimonial proceedings. It is further case of the applicant respondent that No. the applicant does not want that 2 to be punished and that the the proceeding filed against respondent No. 2 to be continued. The applicant further does not want to resile from her previous statement, but in the given circumstances she wants to forgive the respondent No. 2 for the acts committed by him and to continue her matrimonial life smoothly. Therefore, the applicant is invoking special powers of this Court under section 482 of Cr.P.C. for quashing the proceeding pending before the Sessions Court.
15. It is the case of the applicant that as per the provisions of section 320 of Cr.P.C. the learned 2nd Additional Sessions Judge at Aurangabad is not ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 9 ) empowered to allow the applicant to compound the offence punishable under section 307 of Cr.P.C.
Hence, the applicant is invoking the inherent powers of this Court envisaged under section 482 of Cr.P.C.
either to allow the applicant to compound the present offence and/or for quashing the proceeding pending against the respondent No. 2 in the Court of learned 2nd Additional Sessions Judge at Aurangabad in which the applicant is the complainant.
16. application Therefore, that the the applicant has prayed Sessions Case bearing in the No. 188/2007 pending in the Court of learned 2nd Additional Sessions Judge at Aurangabad may be quashed in view of the compromise taken place between the applicant and the respondent No. 2.
17. This matter was heard by this Court on 3rd July, 2008. This Court was pleased to issue notice to the respondents. On 21st January, 2009 this Court orally directed the applicant and respondent No.2 to file memorandum of settlement and understanding supported by their affidavits. The memorandum of settlement and understanding affirmed by the applicant and respondent No. 2 has been filed before this Court ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 10 ) on 27th January, 2009. Today matter is taken up for final hearing with the consent of the parties.
18. Today when the matter is taken up for final hearing, the applicant wife and respondent No. 2 husband are present before the Court. On inquiry with them, both of them have jointly submitted that with their free will and consent memorandum of settlement and understanding has been filed by them. The applicant on specific query by the Court, has again reiterated memorandum of what is settlement stated in and undertaking the application, and made sincere prayer that the application may be allowed in the interest of justice.
19. The learned counsel for the applicant as well as the learned counsel for the respondent No. 2 jointly submitted that in view of the averments in the applicant and memorandum of settlement and understanding placed on record this application deserves to be allowed. The learned A.P.P. has supported the prayer of the parties.
20. I have carefully perused the contents of the application, the contents in memorandum of settlement ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 11 ) and understanding and also complaint and other relevant documents made available by the parties and various judgments of this Court as well as Supreme Court and I am of the considered view that the application deserves to be allowed. It is true that the offence under section 307 is non-compoundable as per the provisions of section 320 of Cr.P.C. However, the application can be entertained under section 482 of Cr.P.C.
21.
and Vs. Hon'ble Supreme Court in the case of B.S.Joshi others State of Harayana and another, reported in 2003 ALL M.R. (Cri) 1162 held as under :-
Criminal P.C. Ss.482, 320- Inherent powers-
Quashing of proceedings, F.I.R. or complaint
- Section 320 would not be a bar to exercise of power of quashing - Whether to exercise or not such a power would depend upon facts and circumstances of each case.
Criminal P.C. 482 - Powers of Court -
Matrimonial offences - It is the duty of the Court to encourage genuine settlements of matrimonial disputes.::: Downloaded on - 09/06/2013 14:17:34 :::
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. In another case of Mansur A. Khan Vs. State
of Maharashtra and others, reported in 2004 ALL M.R.
(Cri.) 1911 this Court held as under :-
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act (1989), 3 (1) (X) - Criminal P.C. Ss.482, 320 - Compounding of offences - Inherent powers of Court -
Complaint under S. 3(1)(X) of Atrocities Act Offence
- Settlement between accused and complainant -
though non-compoundable, Court under S. 482 of Criminal Procedure Code can permit the parties to compound the non-compoundable offence, when it is satisfied that settlement is bonafide and free from pressure and force.
. In another case of Swati w/o Pradeep Goswami Vs. State of Maharashtra and others, reported in 2006 ALL M.R. (Cri.) 1743 this Court held that :-
Criminal P.C. Ss.482, 320 - Penal Code S. 498-A, 420, 494, 495 and section 506(B) -
Amicable settlement of disputes between the
parties - No purpose would be served in
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continuing the proceedings initiated by the
wife when she herself is not interested in
prosecuting the said proceedings - Criminal
Proceedings quashed.
. This Court in the case of Mr. Jitendra S.
Bhadoria and others Vs. State of Maharashtra and
another reported in 2008 ALL M.R. (Cri.) 898 held as
under :-
Criminal
ig P.C. Ss.320, 482
Proceedings - Compounding of offence u/s.320 -
- Quashing of Cruelty to wife - Section 320 of Criminal P.C. does not limit or affect the power of the High Court u/s. 482 of Cr.P.C. - Section 320 would not be a bar to exercise a power of quashing. Penal Code (1860), Section 498-A 2003 ALL M.R. (Cri.) 1162 (S.C.) - relied on.
22. The full Bench of this Court in the case of Abasaheb Yadav Honmane Vs. The State of Maharashtra and another, reported in 2008 (1) Bom.C.R. (Cri) 584 held that the powers under section 482 of the Code are not limited or affected by the provisions of Section 320 of the Code. It is further held that the inherent ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 14 ) powers under section 482 of the Code include powers to quash F.I.R., investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any Court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. The powers under section 482 are neither limited nor curtailed by any other the Code.
provisions of the Code including section 320 of The Court could exercise this power in offences of any kind, whether compoundabe or non-compoundable. However, such inherent powers are to be exercised sparingly and with caution and in conformity with the precepts indicated in paragraph 7.10 of this judgment. This Court further observed that the powers to compound can be exercised at the trial stage or even at the appellate state subject to satisfaction of the conditions postulated by the legislature under section 320 of the Code.
. The Full Bench in above referred judgment in
para 6.13 has observed that the powers of compounding
is strictly regulated by statutory powers while the
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inherent powers of the Court are guided by judicial
pronouncements within the scope of section 482 of the
Code. Another very important facet of criminal
jurisprudence which as developed in the present time
is with regard to the impact of compounding and/or
quashing criminal proceedings in relation to an
offence, its impact on the victim, witnesses and the
society at large. This must be treated as a relevant
consideration.
. In
above referred judgment, in para No. the Full Bench has observed that when the Court has to 5.14 consider whether the criminal proceedings should be allowed to continue or the same should be quashed, two aspects are to be satisfied (i) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (ii) whether it is expedient and in the interest of justice to permit a prosecution to continue.
22. In view of the pronouncement by the Full Bench of this Court, relying on the various Supreme Court's Judgment, I have no hesitation to proceed on footings that the inherent powers under section 482 of the Criminal Procedure Code include the powers to quash ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 16 ) F.I.R., investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it.
23. In the instant case, the proceedings are pending before the 2nd Additional Sessions Judge at Aurangabad. The original complainant/applicant herein is wife of respondent No. 2. By the present application the applicant/complainant has stated that she and respondent No. 2 have settled their disputes and decided that in view of her one child and his future, she she does not wish to proceed with has the complaint filed by her. Moreover, the applicant as well as respondent No. 2 have filed memorandum of settlement and understanding before this Court.
24. The applicant is present in the Court and she has stated before me that she has no grievance whatsoever against the respondent No. 2. The respondent No. 2 has also stated that the memorandum of settlement and understanding is signed and verified by them with their will. They have decided to stay together and forgive each other and to live remaining life together happily with their child.
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25. In these circumstances, the prosecution which
is pending against the respondent No. 2 would be
futile as in all probability there would be no
evidence to prove the offences alleged against the
respondent since the applicant has no grievance
against him.
26. In view of above discussion, I am of the view
that no purpose will be served by keeping this
application pending.
case
of Dr.Arvind Barsaul Etc.
The Hon'ble Supreme Court in the Vs. State of Madhya Pradesh & Anr. reported in 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 ::: Downloaded on - 09/06/2013 14:17:34 ::: ( 18 ) proper to quash the criminal proceedings pending against the appellants emanating from the F.I.R. lodged under section 498-A, I.P.C.
27. In the result, the proceedings before the 2nd Additional Sessions Judge at Aurangabad in Sessions Case No. 188/2007 are quashed and set aside.
. Criminal Application is allowed and disposed of.
[ S.S.SHINDE, J.] ssc/criapln1940.08 ::: Downloaded on - 09/06/2013 14:17:34 :::