Bombay High Court
Pravin S/O Madhukar Dehankar vs The State Of Maharashtra on 3 December, 2009
Author: S. S. Shinde
Bench: S. S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Criminal Application No. 3183 of 2009
1. Pravin s/o Madhukar Dehankar,
Aged about 33 years, Occ.-Nil,
2. Madhukar s/o Maroti Dehankar,
Aged about 62 years,
Occupation - Retired,
3. Smt. Madhuri w/o Madhukar Dehankar,
Aged about 56 years,
Occupation - Household,
Nos. 1 to 3 Resident of Plot No.151,
Suyog Nagar, Nagpur -15.
4. Sau. Kalpana w/o Sunil Mahadule,
Aged about 40 years,
Occupation - Housewife,
R/o C/o Sunil Mahadule, Darji Line,
Chhawani, Nagpur. .. APPLICANTS
.. Versus ..
1. The State of Maharashtra,
through its Police Station Officer,
Police Station, Ajani, Nagpur.
2. Smt. Sarika w/o Pravin Dehankar,
Aged about 28 years,
Occupation - Household,
R/o C/o Sukhadeo Nagmote,
Plot No.57, Govt. Press Colony,
Dabha, Nagpur - 16. .. NON-APPLICANTS
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Mr. A.D. Dangore, Advocate for the applicants,
Mrs. R.A. Wasnik, APP for the non-applicant No.1,
Ms. Pournima Undirwade, Advocate for the non-applicant No.2.
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CORAM:- S. S. SHINDE, J.
DATE OF RESERVING THE JUDGMENT : 27-11-2009
DATE OF PRONOUNCING THE JUDGMENT : 03-12-2009
JUDGMENT
1. This application is filed praying therein for quashing and setting aside the proceedings bearing Misc. Criminal Complaint No. 160/2004 pending on the file of the Additional Chief Judicial Magistrate, Nagpur and further to discharge the applicants therefrom.
2. The facts of the case are as under :-
The applicant No.1 and non-applicant No.2 are related as husband and wife. The applicant Nos. 2 to 4 are the in-laws of the non-applicant No.2. The marriage between the applicant No.1 and non-applicant No.2 was solemnized on 26-12-2002.
They resided together at the address of the applicant No.1 till 8-7-2004 and since there was some differences between them, the non-applicant No.2 left the company of the applicant No.1 and started residing with her parents from 19th March, 2003.
3. That, since all the efforts made by the applicant No.1 and his family members failed, the applicant No.1 was left with no other option but to file a petition under Section 13(I)(i-a) and ::: Downloaded on - 09/06/2013 15:22:37 ::: 3 (i-b) of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce. The said petition was registered as H.M.P. No. A-422/2004 before the Judge, Family Court, Nagpur.
4. During the pendency of the proceedings, on 19-6-2009 the applicant No.1 and the non-applicant No.2 consented for mutual divorce and accordingly before the Marriage Counselor, Family Court, Nagpur both of them agreed to take mutual consent divorce by withdrawing all the allegations made against each other. Accordingly orders in terms thereof was passed whereby certain clauses were incorporated in the said order to which the parties agreed. Conclusively, consent terms were executed as per Clause 31 of the Family Court Rules, 1987 on 19-6-2009.
5. After the consent terms, the applicant No.1 and non-
applicant No.2 preferred an application on 1-7-2009 for grant of permission to convert the petition filed by the applicant under Section 13(I)(i-a) and (i-b) to under Section 13(B) of the Hindu Marriage Act for decree of mutual divorce.
6. On 3-7-2009 evidence of applicant No.1 and non-applicant ::: Downloaded on - 09/06/2013 15:22:37 ::: 4 No.2 was recorded by the Family Court in the said petition in which they have categorically stated that after separation her family members have tried to press to reconcile the matter but in futile and when they realised that it is impossible for them to reside together, they have decided to dissolve their marriage by mutual consent out of Court and have filed the petition for mutual consent divorce on certain terms and conditions. Apart from other conditions, same were - they would withdraw all allegations leveled against each other and accordingly withdrew the same. The non-applicant No.2 i.e. wife specifically agreed to co-operate to withdraw the complaint filed under Section 498-A of the Indian Penal Code against the present applicants and they would not litigate further in future.
7. On the very same day the learned Judge, Family Court, Nagpur by its judgment dated 3rd July, 2009 disposed of the H.M.P. No. A-422/2009, thereby dissolving the marriage dated 26-12-2002 between applicant no.1 and non-applicant No.2 by decree of divorce with mutual consent. Thus, both the husband and wife are residing separately and the marriage between them now legally dissolved.
8. That, as per the agreement between them, that they ::: Downloaded on - 09/06/2013 15:22:38 ::: 5 would be co-operating each other in withdrawal of the proceedings and allegations against each other, the proceedings under Section 498-A, 323 and 34 of the Indian Penal Code instituted at the instance of the non-applicant No.2 is still pending before the Chief Judicial Magistrate, Nagpur bearing Criminal Complaint No. 160/2004. In the said matter, the present applicants are impleaded as accused and charge is not yet framed in the matter. However, in view of the decree of divorce by mutual consent, the marriage is already dissolved and as per Clauses 8 and 9 of the consent terms dated 19-6-2009 the non-applicant No.2 was to withdraw the said proceedings. Hence, now in the event of decree of divorce in mutual terms and for the interest of justice of both the parties, the proceedings are required to be quashed and set aside and therefore, this application is filed by the applicants before this Court.
9. This Court by order dated 8th October, 2009 issued notices to the non-applicants and in pursuant to the issuance of notices, the non-applicants have appeared in the matter. The application was taken up for hearing on 19th November, 2009.
The Advocate appearing for the non-applicant No.2 prayed week's time to file affidavit in reply. On 25-11-2009 the ::: Downloaded on - 09/06/2013 15:22:38 ::: 6 applicant No.1 and non-applicant No.2 have filed affidavit on behalf of the deponents. The joint affidavit prays for quashing of proceedings bearing Misc. Criminal Complaint No. 160/2004 pending on the file of Additional Chief Judicial Magistrate, Nagpur.
10. 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 the parties.
11. Since the applicant No.1 and non-applicant No.2 have filed affidavit jointly and prayed to quash and set aside the proceeding bearing Misc. Criminal Complaint No.160/2004 pending on the file of Additional Chief Judicial Magistrate, Nagpur, in the light of the averments in the annexures thereto and also joint affidavit of applicant No.1 and non-applicant No.2, I proceed to decide the application finally.
12. The learned Advocate appearing for the applicants 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 Additional Chief Judicial Magistrate, Nagpur may be ::: Downloaded on - 09/06/2013 15:22:38 ::: 7 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(7) LJSOFT 99 = 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.
13. 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 ::: Downloaded on - 09/06/2013 15:22:38 ::: 8 Criminal Procedure Code. The non-applicant No.2 remained present in the Court. The applicant No.1 husband was also present in the Court.
14. 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(7) LJSOFT 99=2008(2) Bom.C.R.(Cri.)44, the present application can be disposed of.
15. I have carefully perused the contents of the application and annexures thereto. At Annexure-A there is a copy of F.I.R.
and Final Report. At Annexure-B there is a copy of the order passed by the Marriage Counselor, Family Court, Nagpur. At Annexure-C there is a copy of application filed by the applicant No.1 and non-applicant No.2. At Annexure-D there are copies of the deposition of the applicant No.1 and non-applicant No.2 and at Annexure-E there is a copy of the order passed by the Judge, Family Court, Nagpur.
16. Perusal of paragraph 6 of the judgment passed in Petition ::: Downloaded on - 09/06/2013 15:22:38 ::: 9 No.A-422/2004 reproduced hereinbelow :-
"Both the petitioners have stated that they have no allegations against each other. The petitioner No.2 has given up her right of past, present and future maintenance from petitioner No.1. The petitioner No.1 has agreed to pay Rs.3,00,000/- (Rs. Three lakhs only) to the child Purvesh towards his maintenance which he has deposited in the Court and the petitioner No.2 can withdraw the said amount after passing a decree of divorce. The petitioner No.2 shall deposit the said amount in fixed deposit in any Nationalised Bank and she can withdraw the interest thereon for child's needs and in case of emergency, the petitioner No.2 can withdraw the amount of Rs. Three Lakhs from the bank with prior permission of Court. There is also no dispute between them regarding stridhan, ornaments and articles as it is already over it. The petitioner No.2 would co-operate the petitioner No.1 to withdraw the case under Section 498-A and 34 of the Indian Penal Code filed against him and his family members. The custody of child Purvesh shall remain with the petitioner No.2.
However, the right to file the custody petition is open for the petitioner No.1.
::: Downloaded on - 09/06/2013 15:22:38 ::: 10There is also no dispute between them in respect of right over the movable and immoveable property of each other. They have further agreed that they would withdraw all the cases/petitions filed against each other, if any and would not interfere in each others personal life after passing a decree. They are free to remarry. This way, they have no claims against each other.
Thus, it is clear that the decision of the parties to take divorce by mutual consent is free and voluntary and no force, pressure and undue influence appear to have been exercised while signing the consent terms at Exh.109. In such circumstances and in keeping with the fact that the parties are unable to live together, I hold that they are entitled to a decree of divorce by mutual consent, particularly in the event that there is no impediment in granting a decree of divorce by mutual consent, as ingredients as laid down under Section 13-B of the Hindu Marriage Act, are compined and I, therefore, allow the petition with the following order."
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 & ::: Downloaded on - 09/06/2013 15:22:38 ::: 11 others v. State of Maharashtra and others, 2008(7) LJSOFT 99 = 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 Harayana and another, reported in 2003(4) LJSOFT (SC) 9 = 2004 (1) Bom.C.R. (Cri.) 93 and in the case of Abasaheb Yadav Honmane vs. State of Maharashtra reported in 2008 (5) LJSOFT 46 = 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 ::: Downloaded on - 09/06/2013 15:22:38 ::: 12 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 (i). In view of the agreed terms of compromise, the complaint bearing Misc. Criminal Complaint Case No.160/2004 pending on the file of the Additional Chief Judicial Magistrate, Nagpur is quashed and set aside and application is disposed of as above.
Rule is made absolute in above terms.
JUDGE adgokar ::: Downloaded on - 09/06/2013 15:22:38 :::