Bombay High Court
Harishkumar S/O Kewadmal Bajaj vs The State Of Maharashtra on 27 July, 2009
Author: Shrihari P. Davare
Bench: Shrihari P. Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPLICATION NO.1842 OF 2007
1. Harishkumar s/o Kewadmal Bajaj
Age 39 years, Occ. Business,
R/o Sindhi Colony, Chalisgaon,
Tal. Chalisgaon, Dist. Jalgaon
2. Vidyabai Girdharilal Manwani,
Age 51 years, Occ. Household,
R/o Navjivan Society, Sindhi Colony,
Bhusawal，District Jalgaon
3. Sitabai Sobhasing Jahajsindhani,
Age 47 years, Occ. Household,
R/o Ulhasnagar No.4.
4. Rekhabai Sawaldas Rijani,
Age 33 years, Occ. Household,
R/o Deshmukhwadi, Pachora,
District Jalgaon.
5. Girdharilal Mohandas Manwani,
Age 56 years, Occ. Housework,
R/o Navjivan Hsg. Society,
Sindhi Colony, Bhusawal,
District Jalgaon
6. Sobhasing Rahandas Jahajsindhani,
Age 49 years, Occ. LIC Agent,
R/o Ulhasnagar No.4.
7. Sawaldas Mohandas Rijani,
Age 37 years, Occ. Business,
R/o Deshmukhwadi, Pachora,
District Jalgaon. ... PETITIONERS
(Original Accused)
VERSUS
1. The State of Maharashtra
through District Superintendent
of Police, Jalgaon.
District Jalgaon.
(To be served through
Public Prosecutor, High Court
of Judicature of Bombay,
Bench at Aurangabad)
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2
2。 Sau. Madhu @ Jyoti Harishkumar Bajaj,
@ Jyoti d/o Murlidhar Lulla,
Age 33 years, Occ. Household,
R/o Gandhi Nagar, Mangrulpir Road,
P.S. Civil Lines, Akola,
District Akola. ... RESPONDENTS
.....
Shri P.R. Patil, Advocate for the petitioners
Shri B.J. Sonawane, A.P.P. for respondent No.1.
Mrs. Sunita Shelke, Advocate for respondent No.2.
.....
CORAM : SHRIHARI P. DAVARE, J.
ig DATED : 27TH JULY, 2009.
ORAL JUDGMENT :
1. Perused. Rule. Rule made returnable forthwith. By consent of learned respective counsel for the parties, taken up for final hearing.
2. By the present application, the petitioners have prayed to quash and set aside the charge sheet/ criminal proceedings in R.C.C. No.76/2004 under Sections 498-A, 323, 504, 506, 510 read with Section 34 of the Indian Penal Code, pending before learned Judicial Magistrate, First Class, Chalisgaon.
3. The petitioners are the original accused in R.C.C. No. 76/2004 pending before learned Judicial Magistrate, First Class, Chalisgaon under the aforesaid Sections. The respondent No.2 is the original complainant in the said case.
::: Downloaded on - 09/06/2013 14:50:15 ::: 34. The factual matrix of the case, briefly stated, are as follows :
The petitioner No.1 and respondent No.2 got married with each other at Chalisgaon on 28.2.1993 according to Hindu rites and customs and as per Sindhi family. A son namely Nikhil was born out of the said wedlock, who is in custody of the respondent No.2. However, due to strained relations and incompatibility, the petitioner No.1 and respondent No.2 were unable to reside and cohabit with each other together.
5. Thereafter, the respondent No.2 herein filed Misc.
Application No.204/2005 for maintenance under Section 125 of the Criminal Procedure Code before the learned Judicial Magistrate, First Class, Akola. Moreover, the respondent No.2 also filed Special Civil Suit No.71/2005 before the learned Civil Judge, Senior Division, Akola against the petitioner No.1 herein for the permanent alimony. Besides that, the respondent No.2 also lodged a complaint with Police Station, Chalisgaon against the present applicants on 17.2.2004 under Sections 498-A, 323, 504, 506, 510 read with Section 34 of the Indian Penal Code and it was numbered as R.C.C. No.76/2004, which is pending before learned Judicial Magistrate, First Class, Chalisgaon after filing the charge sheet therein.
6. It is submitted that, the petitioner No.1 and respondent No.2 realised that there is no possibility of reconciliation between them and, therefore, with the intervention of the respectable ::: Downloaded on - 09/06/2013 14:50:15 ::: 4 persons and panchas in Sindhi society, the petitioner No.1 and respondent No.2 resolved to settle the dispute between them by mutual agreement and decided to be separate from each other and consent divorce deed was executed between them on 10.4.2006, wherein it was mentioned that the R.C.C. No.76/2004 would be withdrawn by the respondent No.2 herein. Moreover, in pursuance of the said consent divorce deed, the petitioner herein paid the lumpsum amount of Rs.5,00,000/- towards the permanent alimony as well as paid lumpsum amount of Rs.
5,00,000/- to minor son Nikhil by way of Demand Draft in the name of respondent No.2 as natural guardian mother towards the maintenance.
7. It is further submitted that the petitioner No.1 and respondent No.2 filed Marriage Petition No.78/2006 before the Civil Judge, Senior Division, Akola for divorce by mutual consent and vide order passed on 10.11.2006, the marriage between the petitioner No.1 and respondent No.2 herein was dissolved by way of decree of divorce under section 13-B of the Hindu Marriage Act. Moreover, in pursuance of the aforesaid arrangement, the respondent No.2 also withdrew the Application No.204/2005 for the grant of maintenance under Section 125 of the Criminal Procedure Code as well as respondent No.2 filed purshis in Special Civil Suit No.71/2005 and withdrew the said suit for permanent alimony from the Court of Civil Judge, Senior Division, Chalisgaon.
::: Downloaded on - 09/06/2013 14:50:15 ::: 58. Moreover, it is pointed out that the petitioner No.1 and respondent No.2 filed a compromise purshis in R.C.C. No.76/2004 stating that now the matter is settled amicably and both the parties requested to dispose of the said case finally as respondent No.2 was no more interested to prosecute the said case. Accordingly, the learned Magistrate compounded the offence under Sections 323, 504 and 506 of the Indian Penal Code. However, the offence under Sections 498-A read with Section 34 and 510 of the Indian Penal Code were not allowed to be compounded since they are not compoundable and, therefore, same are pending. It is submitted that, although the other offences were duly compounded on 29.5.2006, the learned Magistrate, Chalisgaon framed the charge under Section 498-A read with Section 34 of the Indian Penal Code and also under Section 510 of the Indian Penal Code against the applicant herein on 29.5.2006 in R.C.C. No.76/2004. Thereafter, evidence of respondent No.2 was also recorded therein and her cross-
examination was to be started. However, meanwhile, interim relief ion terms of prayer clause (B) was granted in the present application on 16.6.2007. In view of the aforesaid position, the applicants have prayed that the criminal proceedings in R.C.C. No.76/2004 be quashed and set aside under Section 482 of the Criminal Procedure Code and also under Articles 226 and 227 of the Constitution of India since the petitioner No.1 and respondent No.2 have already resolved and settled the matter between them.
::: Downloaded on - 09/06/2013 14:50:15 ::: 69. Heard learned respective counsel for the parties.
10. Mrs. Sunita Shelke, learned counsel for respondent No. 2 categorically gave no objection to allow the present application, contending that the disputes between the petitioner No.1 and respondent No.2 have been amicably settled and there is no propriety in prosecuting R.C.C. No.76/2004 against the petitioners herein and submitted that inherent powers under Section 482 of the Criminal Procedure Code be invoked to meet the ends of justice.
11. Shri B.J. Sonawane, learned A.P.P. raised objection in allowing the present application, contending that since the divorce has taken place between the petitioner No.1 and respondent No.2 vide order passed on 10.11.2006, the provisions of Section 482 of the Criminal Procedure Code cannot be invoked for quashing and setting aside the criminal proceedings under R.C.C. no.76/2004 and, therefore, submitted that present application be dismissed.
12. Considering the rival submissions, since the petitioner No.1 and respondent No.2 have already resolved to dissolve their marriage and already executed consent divorce deed between them on 10.4.2006, wherein it was specifically mentioned that present R.C.C. No.76/2004 would be withdrawn by the respondent No.2 herein, there is no propriety in petitioners to undergo the ordeal of facing the trial in R.C.C. No.76/2004 for the ::: Downloaded on - 09/06/2013 14:50:15 ::: 7 charges under Sections 498-A and 510 of the Indian Penal Code, for which the said case is pending. Moreover, the respondent No. 2 has also confirmed that the petitioner No.1 herein has also paid the lumpsum amount of Rs.5,00,000/- by way of Demand draft towards her permanent alimony as well as the petitioner No.1 herein has already paid the lumpsum amount of Rs.5,00,000/- to minor son Nikhil through natural guardian mother i.e. respondent No.2 herein by way of Demand Draft towards his maintenance and hence, it is apparently clear that due care of the maintenance of the respondent No.2 herein and the minor son Nikhil has been taken by the petitioner No.1 herein.
13. Moreover, it is the matter of record that the petitioner No.1 and respondent No.2 herein have filed the Marriage Petition No.78/2006 under Section 13-B of the Hindu Marriage Act for divorce by mutual consent before the learned Civil Judge, Senior Division, Akola and same was allowed and the marriage between the petitioner No.1 and respondent No.2 herein was dissolved by way of decree of divorce by mutual consent vide order passed on 10.11.2006 and, therefore, the marital ties between the petitioner No.1 and respondent No.2 have been already saggregated. Moreover, it is also a matter of record that the respondent No.2 herein has withdrawn the criminal proceedings under section 125 of the Criminal Procedure Code i.e. Misc.
Application No.204/2005 as well as the respondent No.2 herein has filed purshis in Special Civil Suit No.71/2005 for permanent alimony and withdrew the said suit also from the Court of Joint ::: Downloaded on - 09/06/2013 14:50:15 ::: 8 Civil Judge, Senior Division, Akola. Hence, it is apparently clear that, the civil as well as criminal proceedings between the petitioner No.1 and respondent No.2 have been disposed of except R.C.C. No.76/2004 pending before the learned Judicial Magistrate, First Class, Chalisgaon, that too only in respect of charges under Sections 498-A read with Section 34 and 510 of the Indian Penal Code since other charges under Sections 323, 504 and 506-I of the Indian Penal Code have been already compounded by the learned Magistrate under Section 320 of the Criminal Procedure Code, in view of the settlement between the petitioner No.1 and respondent No.2 herein.
14. Now the question arises regarding invoking the inherent powers under Section 482 of the Code of Criminal Procedure for quashing and setting aside the criminal proceedings i.e. R.C.C. No.76/2004 in respect of the charges under Section 498-A read with Section 34 of the Indian Penal Code and Section 510 of the Indian Penal Code. Shri Sonawane, learned A.P.P. vehemently opposed for quashing and setting aside the criminal proceedings in R.C.C. No.76/2004 under Section 498-A read with Section 34 of the Indian Penal Code and Section 510 of the Indian Penal Code, contending that there is no question of reconciliation between petitioner No.1 and respondent No.2 since the petitioner No.1 and respondent No.2 have already taken divorce and, therefore, the said provision under Section 482 of the Code of Criminal Procedure cannot be invoked.
::: Downloaded on - 09/06/2013 14:50:15 ::: 915. However, in the said context, the learned counsel for the petitioner relied upon the observations made by the Division Bench of the Hon'ble Apex Court (Y.K. Sabharwal and H.K. Sema, JJ.) in the case reported at 2003-AIR (SC)-0-1386 (B.S. Joshi Vs. State of Haryana), wherein it is observed in paragraph nos.
13, 14 & 15 as under :
"13. The observations made by this Court, though in a slightly different context, in G.V. Rao v. L.H.V. Prasad and Ors., 1 are very apt for determining the approach required to be kept in view in matrimonial dispute by the Courts, it was said that there has been an outburst of matrimonial disputes in recent time. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commissions of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapproachment are rendered helpless on their being arraigned as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts.
14. There is no doubt that the object of introducing chapter XX-A containing Section 498- A of the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view ::: Downloaded on - 09/06/2013 14:50:15 ::: 10 would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XX-A of Indian Penal Code.
15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. "
16. Thus, in view of the observations by the Hon'ble Apex Court, it is amply clear that the High Court, in its inherent powers, can quash criminal proceedings or F.I.R. or complaint and Section 320 of the Code does not limit or affect the powers under section 482 of the Criminal Procedure Code and accordingly, even though divorce is taken place between petitioner No.1 and respondent No.2 in the present case, since they have departed gracefully and resolved to dissolve their marriage, the inherent powers under Section 482 of the Criminal Procedure Code can be very well invoked and the criminal proceedings in R.C.C. No.76/2004 in respect of the remaining charges under section 498-A read with Section 34 and Section 510 of the Indian Penal Code needs to be quashed and set aside to meet the ends of justice.
17. In the result, present application is partly allowed and criminal proceedings in R.C.C. No.76/2004 pending before the ::: Downloaded on - 09/06/2013 14:50:15 ::: 11 learned Judicial Magistrate, First Class, Chalisgaon in respect of the remaining charges under sections 498-A read with Section 34 of the Indian Penal Code and under Section 510 of the Indian Penal Code stands quashed and set aside, under Section 482 of the Code of Criminal Procedure. Rule is made absolute accordingly.
(SHRIHARI P. DAVARE, J.) ::: Downloaded on - 09/06/2013 14:50:15 :::