Shankar Panditrao Tokalwad vs Indira Nagar
2012 Latest Caselaw 142 Bom

                                            1                            crap3629.12




                                                                                  
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    AURANGABAD BENCH, AURANGABAD




                                                          
                   CRIMINAL APPLICATION NO.  3629 OF 2012

    Shankar Panditrao Tokalwad,




                                                         
    age 41 years, occ. Labour,
    r/o Loha, Tq. Loha, Dist. Nanded                        ...Applicant
                                                   [Original Accused No.1)
                          




                                           
                  VERSUS

    1] 
                           
           The State of Maharashtra,
           through police station Loha,
           Tq. Loha, Dist. Nanded,
                          
    2]   Ranjana @ Soni w/o Shankar Tokalwad,
         age 36 years, occ. household,
         r/o Ranisawargaon, at present
      


         Indira Nagar, Loha, Tq. Loha,
         District Nanded                                     ...Respondents
   



                                                        [No. 2 Orig. complainant]
                                           .....
    Shri  R.R.Shaikh, advocate for applicant





    Shri  B.J.Sonawane, A.P.P.  for respondent no.1
    Shri H.I.Pathan, advocate for respondent no.2
                                           .....


                               CORAM  :    SHRIHARI  P.DAVARE, J.

                               DATED   :    9th  OCTOBER, 2012


    ORAL JUDGMENT  : -


    1]            Heard   respective   learned   counsel   for   the   parties. 

    Leave to correct affidavit in reply granted. 




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    2]          Rule.   Rule   made   returnable   forthwith.     With   the 

consent of learned counsel for the parties taken up for final

hearing.

2] By the present application preferred by the applicant

(husband) i.e. original accused no.1 against respondent no.2

(wife) i.e. original complainant under Section 482 of the Code of

Criminal Procedure, the applicant prayed that permission be

granted to the parties i.e. applicant and respondent no.2 to

compound the matter and they be permitted to settle the

dispute as per compromise i.e. Exh.11 in Criminal Appeal No.

28 of 2007 pending before the learned Additional Sessions

Judge, Kandhar, and also prayed to quash and set aside the

order, dated 21.7.2012 passed below Exh.11 in the said appeal

by the learned Additional Sessions Judge, Kandhar, as well as

prayed that criminal proceedings (Criminal Appeal No. 28 of

2007) pertaining to Crime No. 68 of 2005 for the offences

punishable under Section 498A, 504 r/w 34 of the Indian Penal

Code pending before the learned Additional Sessions Judge,

Kandhar be quashed/disposed of in view of the compromise.

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    3]         Respondent no. 2 is the wife of the applicant herein. 




                                                  

She had filed complaint/first information report with the police

station Loha on 8.7.2005 alleging mental and physical cruelty to

her at the hands of the applicant and other co-accused.

Accordingly, Crime No. 68 of 2005 was registered against the

applicant and other co-accused for the offences punishable

under Sections 498A r/w 34 of the Indian Penal Code. After

completion of investigation, charge sheet came to be filed

against the applicant and other co-accused on 24.10.2007

before the learned Judicial Magistrate, First Class, Loha and

Regular Criminal Case No. 143 of 2005 was registered against

them. After trial of the said criminal case, the learned Judicial

Magistrate, First Class, Loha convicted and sentenced the

applicant herein for the offence punishable under Section 498A

of the Indian Penal Code, but the other co-accused were

acquitted by the judgment and order, dated 24.10.2007.

4] Being aggrieved and dissatisfied by the said

conviction and sentence, the applicant herein preferred Criminal

Appeal No. 28 of 2007 before the learned Additional Sessions

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Judge, Kandhar on 16.11.2007. The said appeal was admitted

and the substantive sentence was suspended and the applicant

herein was released on bail on the said date. However,

thereafter without hearing the applicant/his advocate, learned

Additional Sessions Judge, Kandhar, dismissed the said

appeal by order, dated 6.10.2010 for want of prosecution.

5]

Aggrieved thereby, the applicant herein filed Criminal

Writ Petition No. 75 of 2012 challenging the said order.

Besides, the matter was settled between the parties. They had

preferred Criminal Application No. 740 of 2012 in the said

Criminal Writ Petition No. 75 of 2012 praying permission to

compound the matter. Accordingly, this court allowed Criminal

th Writ Petition No. 75 of 2012 on 20 June, 2012 and set aside

the order of dismissal in default passed in appeal by the learned

Additional Sessions Judge, Kandhar passed on 6.10.2012 and

restored Criminal Appeal No. 28 of 2007 before the learned

Additional Sessions Judge, Kandhar, but no order was passed

on Criminal Application No. 740 of 2012 and the parties were

directed to appear before the First Appellate Court and the said

application also came to be disposed of.

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    6]          Accordingly, the parties appeared before the learned 

Additional Sessions Judge, Kandhar on 21.7.2012 and

produced the settlement-deed Exh.12 and application Exh.11

seeking permission to compound the matter. However, learned

Additional Sessions Judge, Kandhar passed an order below

Exh.11 in Criminal Appeal No. 28 of 2007 on 21.7.2012

observing that, "the application itself is untenable and question

of granting permission for compounding the offences does not

survive. As such the application is filed", and thereby neither

allowed the said application nor rejected it. Hence, the

petitioner filed the present petition for the prayers as mentioned

herein above.

7] Respondent no.2 filed affidavit in reply and stated that

the respondent no.2 is residing with the applicant and they have

settled the dispute amicably out of the court with the help of

elder family members and now there is no dispute between the

respondent no.2 and the applicant and they are living happily.

It is also stated by respondent no.2 that applicant and said

respondent no.2 had filed joint application along with

compromise deed before the First Appellate Court and

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requested for compounding the offence and to acquit the

accused, but the learned Additional Sessions Judge, Kandhar

did not consider the said application on the ground that Section

levelled in the matter is not compoundable, and therefore, said

application was filed by order, dated 21.7.2012. She further

stated in the said affidavit in reply that the respondent no.2

does not want to prosecute the appeal against the applicant, as

such they have settled the dispute and are residing together

since last 7 months. She further stated that she has no

objection for compounding the offence and for quashing the

proceeding in appeal against the applicant pending before the

learned Additional Sessions Judge, Kandhar. The said affidavit

in reply has been sworn in and affirmed by respondent no.2

before this court, and she is also present today in the court in

person and admitted the contents thereof.

8] The applicant is represented by learned counsel Shri

R.R.Shaikh, whereas respondent no.2 is represented by

learned counsel Shri H.I.Pathan. Both the learned counsel for

the parties submitted that appeal filed by the applicant before

the learned Additional Sessions Judge, Kandhar challenging

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the conviction and sentence imposed upon him is the

continuation of proceeding and since the parties have settled

the dispute amicably out of the court, continuation of the said

appeal would be an abuse of process of court, and therefore,

urged that criminal proceeding against the applicant be

quashed and set aside and relied upon the judicial

pronouncement of the Apex Court in the case of Dr. Arvind

Barsaul, etv. Vs State of Madhya Pradesh and anr., reported

at 2008 ALL SCR 2111.

9] Undisputably, the applicant herein has been

convicted and sentenced for the offence punishable under

Section 498A of the Indian Penal Code by the learned Trial

Court and the applicant herein has questioned the said

conviction and sentence by filing Criminal Appeal No. 28 of

2007 and same is pending before the learned Additional

Sessions Judge, Kandhar. While the said appeal is pending,

the parties i.e. applicant (husband) and respondent no.2 (wife)

have settled the dispute between them amicably out of the court

and have already filed deed of settlement at Exh.12 in the said

appeal. Respondent no.2 also filed affidavit in reply in this court

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in the present proceeding and confirmed the said position and it

also stated therein that she is residing along with the applicant

happily for the substantial period i.e. for last seven months.

Moreover, respondent no.2 has no objection to compound the

offence and to quash the proceeding in appeal against the

applicant which is pending before the learned Additional

Sessions Judge, Kandhar.

10] In the circumstances, it is apparently clear that the

parties have settled their differences and respondent no.2 i.e.

original complainant is residing with the applicant (husband)

happily and she is not interested in prosecuting the criminal

proceeding initiated against the applicant. Admittedly, Criminal

Appeal No. 28 of 2007 filed by the applicant herein which is

pending before the learned Additional Sessions Judge, Kandhar

is the continuation of proceeding of Regular Criminal Case No.

143 of 2005 and the complainant i.e. respondent no.2 herein

does not want to prosecute same further more. Hence, the

continuation of the said criminal proceeding in Criminal Appeal

No. 28 of 2007 would be an abuse of process of law. Hence, it

would be proper to quash the said criminal proceeding pending

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against the applicant i.e. appellant in Criminal Appeal No. 28 of

2007 flowing from the first information report lodged under

Section 498A of the Indian Penal Code, to secure the ends of

justice.

11] In the result, present application is allowed partly and

criminal proceeding pending against the applicant i.e. appellant

in Criminal Appeal No. 28 of 2007 emanating from the first

information report lodged by respondent no.2 against the

applicant under Section 498A of the Indian Penal Code stands

quashed and set aside and pending Criminal Appeal No. 28 of

2007 before the learned Additional Sessions Judge, Kandhar is

accordingly disposed of, and consequently, bail bond of the

applicant stands cancelled. Fine amount, if any deposited by

the applicant, be refunded to him.

12] Rule is made absolute in the afore said terms.

13] Registry to inform the concerned court accordingly.

(SHRIHARI P. DAVARE, J.) dbm/crap3629.12