Sau. Dhanshree Shekhar Hirve vs Shekhar Vasantrao Hirve And Anr
2010 Latest Caselaw 11 Bom

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Ladda


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                      
                                CRIMINAL APPELLATE JURISDICTION




                                                              
                          CRIMINAL WRIT PETITION  No.  1920  OF 2010.


                              Sau. Dhanshree Shekhar Hirve ...   Petitioner




                                                             
                                                versus

                         Shekhar Vasantrao Hirve and Anr ...  Respondents. 




                                                 
        Mr Shriram S. Kulkarni, for the   Petitioner.
                                 
        Mr Shekhar Vasantrao Hirve , the  Respondent No.1 in person present in Court.

        Mr H. J. Dedhia, Additional Public Prosecutor for the State. 
                                
                    

        CORAM:-      A. P. BHANGALE, J.

        DATED :-       TUESDAY, 12TH  OCTOBER, 2010.
        



        ORAL ORDER :-

1. Heard learned Counsel for the petitioner. Respondent No.1

is present in person. Perused the petition and material available on

record.

2. By this petition the petitioner has prayed for quashing of the

criminal proceedings and setting aside the impugned judgment and

order, dated 22.2.2010, passed by the learned Judicial Magistrate, First

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Class, Cantonment Court, Pune below Exhibit-45 in Regular Criminal

Case No.295/2003, whereby the learned Magistrate was pleased to

reject an application filed for discharge of the accused.

3. The complaint was lodged by Shekhar Vasantrao Hirve against his

wife Sau. Dhanshree Shekhar Hirve and others, which was registered at

Cantonment Police Station, Pune, which gave rise to the F. I.R. No.

5/2003, complaining offence punishable under Section 420 read with

section 34 of Indian Penal Code that the First Informant was cheated

by the accused-petitioner and Vilas Pandurang, Sau Shobha Vilas,

Pramod Pandurang, Chandrashekhar Pandurang, Umesh Pandurang and

Sau. Smita who are close relatives of his wife Dhanshree, upon the

accusations that they concealed the ailment suffered by the wife, as

also medical treatment which she was undergoing in respect of

imbalance of harmons etc. Thus, according to the First Informant, the

information was deliberately withheld from him before his marriage

with Sau.Dhanshree. Therefore, the accused had, in furtherance of

common intention, cheated the First Informant.

4. Upon completion of investigation, the accused were charge

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sheeted. It appears that during pendency of the criminal proceedings,

a petition for restitution of conjugal rights was instituted, initially, in the

Family Court at Pune by the petitioner herein. Later there was

compromise between the parties and they decided to agree for divorce

by mutual consent. Accordingly, the Family Court passed the decree for

dissolution of the marriage by mutual consent.

5. According to the learned Counsel for the petitioner, he identifies

the first informant/respondent No.1 (Sekhar Vasantrao Hirve),upon

instructions from the petitioner Dhanshree who was Sekhar's wife and

after perusal of the Identity Card of Mr Sekhar, states that Respondent

is physically present in the Court, as also the petitioner. When

questioned, the petitioner and Respondent No.1 confirmed the fact that

the decree for dissolution of the marriage by mutual consent has been

passed by the Family Court in Petition No. 294/2003 by the Family

Court No.3, Pune on 2.5.2005 in view of Section 13-B of the Hindu

Marriage Act,1955. The petitioner as well as the respondent, who are

present in the Court, do not dispute this fact. It is for these reasons,

learned Counsel for the petitioner submitted that continuance of the

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criminal proceedings instituted by the respondent in the trial court

would amount to abuse of the process of the law, particularly, when the

parties have settled their dispute amicably and settled for divorce by

mutual consent and the decree to that effect has already been passed by

the competent court. He, therefore, prayed for quashing of the criminal

proceedings and setting aside the impugned order whereby learned

Judicial Magistrate, Cantonment Court, Pune rejected an application for

discharge from the case.

6. The learned counsel for the petitioner made a reference to a

ruling in the case of B.S.Joshi vs. State of Haryana and Anr (2003) 4

SCC 675 in order to advance his submission that inherent powers u/s

482 the Code of Criminal Procedure can be exercised in relation to

matrimonial disputes, particularly, considering the facts of the present

case that offence punishable u/s 420 read with section 34 of I.P.C. are

compoundable in view of Section 320 of Cr.P.C.

7. In Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao

Angre, (1988) 1 SCC 692 (para 11) the Apex Court held that while

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exercising inherent power of quashing under section 482, it is for the

High Court to take into consideration any special features which appear

in a particular case to consider whether it is expedient and in the

interest of justice to permit a prosecution to continue and where in the

opinion of the Court chances of securing conviction are remote and,

therefore, no useful purpose would be served by allowing criminal

prosecution to continue, the court may, while taking into consideration

the facts of the case, also quash the proceedings. Learned A.P.P. for the

State contended that the parties may compound offence in the trial

Court.

8. It is settled legal position that powers of High Court to quash

criminal proceedings including FIR and/or complaint are wide and

Section 320 of Cr.P.C. does not limit or affect powers under Section 482

of Cr.P.C. as held in B.S.Joshi vs. State of Haryana (cited supra).

9. The above ruling are attracted in the facts and circumstances of

the present case and no fruitful purpose would be served by making the

parties, continue to appear before the trial Magistrate by continuance

of the prosecution since the respondent has already agreed to withdraw

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accusations and to compound the complaint against the accused. The

respondent No.1 is present in the Court and when questioned, stated

that he do not want to continue with the prosecution. The Respondent

No.1 has also placed on record written praecipe. Same is taken on

record and marked "X" for identification.

9. Under the aforesaid circumstances, if the accused are made to

appear before the trial Magistrate, from time to time, it would only be

sheer waste of their money, time and energy at the cost of their personal

occupation, even when there are no chances of conviction in the case.

For all these reasons, the impugned order as well as further criminal

proceedings for in RCC No.295/2003 pending before the J.M.F.C.

Cantonment Court, Pune is hereby quashed and set aside. Writ Petition

is allowed. Rule is made absolute accordingly.

(A. P. BHANGALE, J.)