Bombay High Court
Babu vs The State Of Maharashtra on 28 September, 2012
Bench: Shrihari P. Davare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4260 OF 2012
IN/WITH
CRIMINAL REVISION APPLICATION NO. 109 OF 2012
1. Babu s/o Ramjan Laluwale,
Age 33 years, Occ. Labour,
R/o. Rasala Bazar, Hingoli,
District Hingoli,
2.
Ramjan s/o Jani Laluwale,
Age 60 years, Occ. Labour,
R/o. As above
3. Shabanabano w/o Babu Laluwale,
Age 31 years, Occ. Household,
R/o. As above
4. Fatobee w/o Ramjan Laluwale,
Age 55 years, Occ. Household, ...Applicants
R/o. As above (Ori. Accused)
Versus
1. The State of Maharashtra
Through Police Station Officer,
Police Station, Hingoli Rural,
District Hingoli
(Copy served upon PP of
High Court of Bombay,
at Aurangabad)
2. Malanbee Yusuf Laluwale,
Age 35 years, Occ. Household,
R/o. Gawlipura, Washim, (Ori. Complainant)
Tq. and District Washim ...Respondents
.....
Mr. Swapnil S. Rathi, advocate for the applicants
Mr. B.J. Sonwane, A.P.P. for respondent No.1
Mr. Girish Rane, advocate for respondent No.2
.....
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CORAM: SHRIHARI P. DAVARE, J.
DATED : 28TH SEPTEMBER, 2012
JUDGMENT :-
1. Heard learned counsel for the respective parties.
2. Leave to amend. Amendment to be carried out forthwith.
3. Rule. Rule made returnable forthwith. With consent of learned
counsel for the parties, taken up for final hearing.
4. The marriage between deceased Yusuf Ramjan Laluwale and
respondent No.2 herein viz. Malanbee took place on 14.5.1999.
Applicant No.1 Babu is brother-in-law of respondent No.2 Malanbee,
whereas applicant No.2 Ramjan is father-in-law, applicant No.3
Shabanabano is wife of applicant No.1 Babu, and applicant No.4
Fatobee is mother-in-law of said respondent No.2-Malanbee. It is
submitted that the husband of respondent No.2 viz. Yusuf expired
during pendency of criminal appeal No. 17 of 2008.
5. A complaint was lodged by respondent No.2 Malanbee with
Hingoli Rural police station alleging therein the cruelty and harassment
caused to her by the present applicants and her deceased husband.
Accordingly, offence punishable under Sections 498(A), 323, 506 r.w.
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34 of I.P.C. was registered against them. Learned J.M.F.C. Court No.
2, Hingoli convicted the applicants herein and deceased husband of
respondent No.2 for the offence punishable under Section 498(A) r.w.
34 of I.P.C. and sentenced them to suffer S.I. for one year and
imposed fine of Rs.4000/- only by each of the accused i/d to suffer
additional S.I. for two months, by judgment and order dated 10.4.2008
in R.C.C. No. 78 of 2004.
6.
The present applicants and deceased husband Yusuf assailed
the said conviction and sentence by filing Criminal Appeal No. 17 of
2008 before the learned Additonal Sessions Judge, Hingoli. However,
the said appeal was also dismissed by the learned Adhoc Additonal
Sessions Judge, Hingoli by judgment and order dated 21.7.2012,
rendered in the said appeal. Hence, being aggrieved and dissatisfied
by the said conviction and sentence and confirmation thereof, due to
dismissal of the appeal, as aforesaid, the applicants have filed present
criminal revision application questioning the correctness and legality
thereof. It is submitted that the husband of respondent No.2 viz.
Yusuf s/o Ramjan Laluwale expired during pendency of the said
appeal. Therefore, he is not applicant in the present revision
application.
7. It further appears that during pendency of present criminal
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revision application, an amicable settlement took place between the
applicants herein and respondent No.2. Accordingly, respondent No.2
filed an affidavit in reply in the present criminal revision application on
12.9.2012. Accordingly, the applicants herein have preferred separate
criminal application No. 4260 of 2012 recording the said compromise
between them. It is stated that the alleged incident took place about
ten years back and with the passage of time, the dispute between the
applicants and respondent No.2 was amicably settled out of Court.
Therefore, they prayed for compounding the said offence. It is also
submitted that respondent No.2 herein is the victim of the incident and
she is praying for compounding of the offence and for quashing and
setting aside the judgment and order of conviction and sentence
passed by the learned J.M.F.C. Hingoli Court No.2 on 10.4.2008 and
which was confirmed by the Adhoc Additional Sessions Judge-1,
Hingoli on 21.7.2012. Respondent No.2 also submitted that she has
received her share in the property of family in terms of money and she
is satisfied with the same. It is stated by the parties i.e. the applicants
and respondent No.2 that since the dispute is amicably settled
between the parties, respondent No.2, who is original complainant,
does not wish that the applicants should be punished.
8. According to parties, since the dispute is amicably settled
between them out of Court and if the proceedings are permitted to
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continue, this will create unnecessary misunderstanding between the
parties. Hence, the parties have prayed for compounding of the
offence and quashing and setting aside the order of conviction passed
against the applicants by the courts below.
9. It is further submitted that the offence is compoundable with
leave of the court and hence, applicants and respondent No.2 have
moved a joint application for seeking leave of this court for
compounding of offence.
10. Learned counsel for the parties relied upon the judicial
pronouncement of this Court in the case of Kiran Tulshiram Ingale v.
Anupama P. Gaikwad and others, reported in 2006 B.C.I. 98.
11. Admittedly, the dispute between the parties arose out of
matrimonial discord. Moreover, indisputably, the offence under section
498(A) of I.P.C. is not compoundable under Section 320 of Code of
Criminal Procedure. However, if the matrimonial discord is being
settled between the parties, this court can always exercise extra
ordinary jurisdiction and inherent powers of this court under Section
482 of Cr.P.C. to prevent the abuse of process of law and also secure
the ends of justice.
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12. However, in this particular case, the applicants have been
convicted for the offence punishable under section 498(A) r.w. Section
34 of I.P.C. by the learned trial court and even the appeal preferred by
them was dismissed by the learned Adhoc Additonal Sessions
Judge-1, Hingoli and thereafter the applicants have preferred present
criminal revision application challenging the correctness and legality of
the said conviction and confirmation thereof.
ig Hence, the question
arises whether it is open for this court to quash the criminal action in
exercise of inherent powers, even in the case which has ended into
passing of an order of conviction after trial. The Hon'ble Supreme
Court after considering 7 judgments upon which the parties relied and
then after considering its own judgment in the case of G.V. Rao vs.
L.H.V. Prasad and others, reported in 2000 (3) S.C.C. 693 and
found that the observations made in that judgment were apt and which
were reproduced, are as under:-
"It was said that there has been an outburst of
matrimonial disputes in recent times. 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 extent which often assume
serious proportions resulting in commission of heinous crimes in
which elders of the family are also involved with the result that
those who could have counselled and brought about re-
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approachment are rendered helpless on their being arrayed 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 lost their young days in chasing their cases in different
courts.
Then para 14, the Supreme court observed as:-
The hyper-technical view 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 XXA of Indian Penal
Code".
13. Besides, in para 13, it is observed by the Division Bench of this
court in the case of Kiran Tulshiram Ingale (supra), which is re-
produced as under:-
"13. Therefore, it is clear that firstly in this case the parties
have compromised even after conviction and, the object of
compromise to live happily, peacefully though separately after
divorce. The Sessions Court has taken cognizance of this
compromise and has reduced the conviction and altered it to a
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bond under the Probation of Offenders Act. Secondly, conviction
by the first Court is not end of the matter and appeal therefrom
is continuation of proceeding and if a revision is filed, in case
conviction is maintained, altered, reduced, then the High Court
in revision does get power to pass effective orders in
consonance with the judgment of the Supreme Court.
Conviction does not attain finality if the appeal is filed and, if the
revision is filed against conviction by Appellate Court, there also
all issues become opened before the High Court."
The above quoted observations made in the said judgment by
the Division Bench of this Court are squarely applicable in the present
case. Since the conviction by the trial court is not the end of the
matter and appeal therefrom is continuation of proceeding and if a
revision is filed, in case conviction is maintained, altered, reduced,
then the High Court in revision does get power to pass effective orders
in consonance with the judgment of the Supreme Court. Thus, the
conviction does not attain finality if the appeal is filed and, if the
revision is filed against conviction by appellate court, there also all
issues become opened before the High Court. Accordingly, even
criminal proceeding can be quashed irrespective of whether there is
conviction or otherwise. Thus the Division Bench answered the
issues, as under:-
"The decision of the Supreme court gives powers to the
High court to permit compounding of matrimonial offences and
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the High court has powers to quash the criminal proceedings or
FIR or complaint. Even in case of conviction, inherent powers
can be exercised and criminal proceedings can be quashed."
14. Hence, in the light of the said factual and legal position, the
FIR/complaint, filed under section 498(A) r.w. 34 of I.P.C. deserves to
be quashed and set aside, by exercising inherent powers in extra
ordinary jurisdiction of this court under Section 482 of Cr.P.C. to
render substantive justice in view of compromise arrived at between
the parties.
15. In the result, FIR/complaint under Section 498(A) r.w. 34 of
I.P.C. and subsequent conviction and sentence imposed upon the
applicants, by the Trial Court, which was confirmed in the appeal by
the first appellate court stands quashed and set aside.
16. Rule is made absolute in the aforesaid terms.
*****
