6] Pandit Dohanya Pawara vs The State Of Maharashtra
2012 Latest Caselaw 196 Bom

                                        1                     crap3686.12




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




                                               
                CRIMINAL APPLICATION NO.  3686 OF 2012

    1]   Shri Vishwanath s/o Dohanya Pawara,




                                              
         age 34 years, occ. Service,
         r/o Ganesh Nagar, Shahada,
         Tq. Shahada, Dist. Nandurbar,




                                       
    2]   Shri Dohanya Orama Pawara,
                        
         age 55 years, occ. Service,

    3]   Sau. Kamalibai Dohanya Pawara,
                       
         age 48 years, occ. Agril.,

    4]   Kum. Rekha Dohanya Pawara,
         age 25 years, occ. Agril.,
      
   



    5]   Sunil Dohanya Pawara,
         age 29 years, occ. Agril.,

         Nos. 2 to 5 R/o Jelsingpada,





         Roshmal Bk. Tq. Akrani,
         Dhadgaon, Dist. Nandurbar

    6]   Pandit Dohanya Pawara,





         age 32 years, occ. Service/
         Gramsevak, R/o Georai,
         Tq. And Dist. Beed, 

    7]   Shri Mava @ Sursing Pawara,
         age 52 years, occ. Agril.,
         R/o Mungbari, Tq. Dhadgaon,
         District Nandurbar                    ...Applicants
                                               [Orig. Accused]




                                               ::: Downloaded on - 09/06/2013 19:17:37 :::
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                  VERSUS




                                                      
    1]   The State of Maharashtra,
         through Police Inspector,
         Dhadgaon Police Station,




                                                     
         Tq. Dhadgaon, Dist. Nandurbar,

    2]     Sau. Latika w/o Vishwanath Pawara,
           age 30 years, occ. Service,




                                         
           R/o Plot No. 258, Patelwadi,
           Nandurabar, Dist. Nandurbar.                ...Respondents
                          ig                    [No.2 Original Complainant]
                        
                                        .....
    Shri  S.U.Chaudhari, advocate for applicants
    Shri  D.V.Tele, A.P.P.  for respondent no.1
    Shri  U.S.Patil, advocate for respondent no.2
      


                                        .....
   



                             CORAM  :    SHRIHARI  P.DAVARE, J.

                             DATED   :    17th October, 2012





    ORAL JUDGMENT  : - 



    1]            Heard respective learned counsel for the parties.





    2]            Rule.     Rule   made   returnable   forthwith.     With   the 

consent of learned counsel for the parties taken up for final

hearing.

                                         3                           crap3686.12




                                                                             
    3]          By   the   present   application   filed   by   the   applicants 




                                                     

under Section 482 of the Code of Criminal Procedure, the

applicants prayed that the proceeding bearing R.C.C. No. 12 of

2009 filed by respondent no.2 herein i.e. original complainant in

the Court of Judicial Magistrate, First Class, Nandurbar under

Section 498A of the Indian Penal Code be quashed and set

aside and the applicants be acquitted for the offence punishable

under Section 498A of the Indian Penal Code.

4] The factual matrix of the matter are as follows :-

The applicants herein are the original accused in

R.C.C. No. 306 of 2008 filed by respondent no.2, namely Smt.

Latika i.e. original complainant in the court of Judicial

Magistrate, First Class, Nandurbar, on 26.9.2008. After inquiry

under Section 156 (3) of the Code of Criminal Procedure,

directed by the said court on 26.9.2008, the said case was

registered as State case and was numbered as R.C.C.No.12 of

2009, and by order, dated 3.10.2009 the said private complaint

R.C.C. No. 306 of 2008 was merged into R.C.C. No. 12 of

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2009.

5] The applicants have approached this court for

quashing and setting aside R.C.C. No. 12 of 2009 filed by

respondent no.2 before the learned Judicial Magistrate, First

Class, Nandurbar, under Sections 498A, 323, 504, 506(2) and

420 r/w Section 34 of the Indian Penal Code and Sections 4, 6

and 7 of the Child Marriage Restraint Act, 1929, and a copy of

the said R.C.C. No. 12 of 2009 is annexed at Exh. 'A' with the

petition.

6] Admittedly, respondent no.2-Latika was legally

wedded wife of applicant no.1-Vishwanath, since their marriage

was solemnized on 23.5.2006, and thereafter she cohabited

with applicant no.1. However, since there were disputes

between applicant no.1 and respondent no.2, quarrels took

place between them, and therefore, applicant no.1 and

respondent no.2 decided to shift at Shahada for further

cohabitation. However, there were disputes between them

there also and respondent no.2 made allegations in respect of

demand of dowry and mental as well as physical harassment.

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Hence, she is residing with her parents at Nandurbar since

December, 2007. The efforts made by both the parties and

their relatives for compromise yielded no results. Thereafter,

respondent no.2 filed private complaint before the Judicial

Magistrate, First Class, Nandurbar under Sections 498A, 323,

504, 506(2) and 420 r/w Section 34 of the Indian Penal Code

and Sections 4, 6 and 7 of the Child Marriage Restraint Act,

1929 bearing R.C.C. No. 12 of 2009. During the pendency of

the said proceeding, mediation took place between the parties

and amicable settlement took place between them.

7] Accordingly, parties preferred joint application in

R.C.C. No. 12 of 2009 before the learned Judicial Magistrate,

First Class, Nandurbar on 13.6.2012, contending that the

dispute has been settled between the parties out of the court

and even divorce has taken place between them by the

intervention of the respectable persons in the community and

both of them have no grievance against each other, and

accordingly, prayed that the said case be disposed of.

However, the learned Judicial Magistrate, First Class,

Nandurbar passed an order on the said application on

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13.6.2012 and rejected the said application observing that

offence punishable under Section 498A of the Indian Penal

Code is non-compoundable.

8] Hence, the applicants have preferred present

application under Section 482 of the Code of Criminal

Procedure contending that although the offence under Section

498A of the Indian Penal Code is non-compoundable, this

court has got jurisdiction under Section 482 of the Code of

Criminal Procedure to quash the pending prosecution involving

the said offence due to the compromise of the parties.

According to the applicants, if the prosecution is allowed to

continue, it will result into abuse of process of court; since the

parties no longer bear any grudge against each other and

intend to bury their past, particularly in the matrimonial matter

where there is amicable settlement, allowing the prosecution to

continue may be counter productive.

9] In the circumstances, the applicants submit that the

proceeding i.e. R.C.C. No. 12 of 2009 filed by respondent no.2

in the court of the Judicial Magistrate, First Class, Nandurbar

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under Section 498A of the Indian Penal Code be quashed and

set aside, in the interest of justice.

10] Respondent no.2, Latika i.e. original complainant filed

affidavit in reply and stated that on her complaint prosecution

was launched against the applicant under Section 498A, 323,

504, 506(2) of the Indian Penal Code and it was registered as

R.C.C. No. 12 of 2009 before the learned Judicial Magistrate,

First Class, Nandurbar. She also stated that during pendency

of the said proceeding, they arrived at compromise in presence

of their parents and respectable persons from the community.

She further stated that since they belong to Adiwasi community,

they have taken divorce on Stamp paper of Rs.100/- as per the

custom and annexed the copy of the said divorce-deed to the

said affidavit in reply. It is also stated in the said affidavit in

reply that it was decided between the parties to withdraw all the

proceedings filed by her. Respondent no.2 submits that the

application filed by her for quashing the proceeding under

Section 498A of the Indian Penal Code before this court be

allowed with her consent, and consequently, R.C.C. No. 12 of

2009 filed under Section 498A of the Indian Penal Code be

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quashed and set aside. The said affidavit has been sworn in

by respondent no.2 and same has been filed before this court

along with photo copy of the deed of divorce which took place

on 28.9.2012 and same is taken on record. Respondent no.2

was present before this court on the said date and admitted the

contents of the affidavit in reply and her signature thereon and

her presence was dispensed with on the next date i.e. today.

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

dispute has been settled between the applicants and

respondent no.2 i.e. original complainant amicably out of the

court and they have compromised the matter amongst

themselves, and therefore, respondent no.2 decided to

withdraw the proceeding filed against the applicants.

Accordingly, application was preferred before the learned Trial

Court in R.C.C. No. 12 of 2009 to dispose of the said case on

13.6.2012. However, as the offence punishable under Section

498A of the Indian Penal Code is non-compoundable, said

application came to be rejected on 13.6.2012 by the learned

trial Court. It also appears from the affidavit in reply filed by

respondent no.2 that the customary divorce has taken place

9 crap3686.12

between respondent no.2-Latika and applicant no.1-Vishwanath

and matter has been settled between the parties amicably, and

therefore, she does not desire/intend to proceed with R.C.C.

No. 12 of 2009 filed by her, more particularly, in respect of

offence under Section 498A of the Indian Penal Code and

prayed that the said proceeding i.e. R.C.C. No.12 of 2009 be

quashed to the extent of said offence and gave her consent

therefor.

12] Thus, it is crystal clear that since the parties have

resolved the dispute between themselves amicably, there is no

propriety in continuing with R.C.C. No. 12 of 2009, more

particularly, to the extent of Section 498A of the Indian Penal

Code, since the complainant i.e. respondent no.2 has no

grievance against the applicants in that respect. Hence, in any

event, said proceeding R.C.C. No. 12 of 2009 shall not result

into conviction in respect of Section 498A of the Indian Penal

Code, since respondent no.2 i.e. original complainant does not

desire to prosecute the said proceeding in that respect, and

hence, to continue with the said proceeding, particularly under

Section 498A of the Indian Penal Code would be futile exercise,

10 crap3686.12

and therefore, said proceeding to the extent of Section 498A of

the Indian Penal Code deserves to be quashed and set aside

by allowing the present application.

13] In the result, present application is allowed in terms of

prayer clause 'B' thereof and R.C.C. No. 12 of 2009 pending

before the learned Judicial Magistrate, First Class, Nandurbar,

stands quashed and set aside to the extent of offence

punishable under Section 498A of the Indian Penal Code.

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

15] Registry to inform the concerned court accordingly.

(SHRIHARI P. DAVARE), JUDGE.

dbm/crap3686.12