Girish Zhamandas Athwani And ... vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 687 Bom

 APL 726.16.odt                               1


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

          CRIMINAL APPLICATION [APL] NO.726 OF 2016


 1]     Girish Zhamandas Athwani,
        Aged about 42 years,
        Occupation-Business.

 2]     Zhamandas s/o Shahbajimal Athwani,
        Aged about 72 years,
        Occupation-Retired,
        Both are resident of
        R/o. Sarthi Chowk, Lakhe Nagar,
        Raipur (C.G.)                   ..                        APPLICANTS


                               .. VERSUS ..

 1]     State of Maharashtra,
        Through Police Station Officer,
        Kamptee Police Station,
        Kamptee, Nagpur (MS),

 2]     Smt. Varsha w/o Girish Athwani,
        Aged about 38 years,
        Occupation-Nil,
        R/o. C/o. Manoharlal Panjumal Dayani,
        Juni Oli, Kamptee, Nagpur (MS). ..    NON-APPLICANTS


                     ..........
 Shri N.A. Lalwani, Advocate for Applicants,
 Shri M.K. Pathan, APP for Non-Applicant No.1,
                     ..........

                               CORAM : B.R. GAVAI AND
                                       KUM. INDIRA JAIN, JJ.

DATED : MARCH 10, 2017.

ORAL JUDGMENT : (Per : B.R. GAVAI, J.)

Rule. Rule is made returnable forthwith. Heard

by consent.

2] Applicants have approached this court praying for

quashing and setting aside of FIR No.61/2008 for the offence

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

Code and consequential Regular Criminal Case

No.900274/2008 pending before the court of 2nd Joint Civil

Judge, Junior Division and Judicial Magistrate, First Class,

Kamptee.

3] Applicant no.1 and non-applicant no.2 were

married to each other on 11.12.2016. However, it appears

that their arose differences between them in the year 2002.

The couple was also blessed with two daughters who are

now residing with non-applicant no.2.

4] It further appears that on account of differences

between the parties, non-applicant no.2 had lodged

aforesaid F.I.R for the offence punishable under Sections

498-A, 504 and 506 r/w 34 of the Indian Penal Code.

5] Upon investigation, the chargesheet is also filed.

However, it appears that taking into consideration that the

differences between the parties are irrecoverable, the

parties have decided to give an end their relationship.

Accordingly, a petition for dissolution of marriage by mutual

consent was filed before the learned Family Court, Nagpur.

In the said petition, consent terms are also placed on record.

One of the terms was that the parties shall withdraw all

criminal and other cases filed against each other. On the

basis of consent terms, decree for divorce came to be

passed on 29.7.2008 in terms of the consent terms.

6] However, it appears that on account of not getting

proper advise, the petition for quashing and setting aside

the proceeding was not filed by the applicants. The

applicants have now filed the present Criminal Application

for quashing of the proceeding in view of the consent terms

which are accepted by the learned Family Court in the

reasoned order dated 29.7.2008. The notice issued to non-

applicant no.2 is duly served. However, since on the last

date that is 3.3.2017, non-applicant no.2 in spite of being

served was not present, we had requested the learned

counsel for the applicants to address communication to non-

applicant no.2 requesting her to remain present in the court

today. Accordingly, a communication by speed post has

been addressed to non-applicant no.2. The affidavit filed by

the applicants to that effect are taken on record and marked

as 'X' for identification. The photostat copies of the consent

terms and the judgment of the learned Family Court are also

taken on record and marked as 'X-1' and 'X-2' for

identification.

7] In spite of being duly served, non-applicant no.2

chosen not to remain present. It appears that since the

parties are residing separately for a period of almost

decade, non-applicant no.2 has chosen not to appear. The

averments made in the application are, therefore, gone

uncontroverted and as such admitted.

8] The Apex Court in the case of B.S. Joshi and

others .vs. State of Haryana and another, reported in

(2003) 4 SCC 675 has held that if the matrimonial dispute

has been settled between the parties, this court can

exercise powers under Section 482 of the Code of Criminal

Procedure to quash and give an end to the criminal

proceedings. We find that the present case is a fit case

where this court should exercise powers under Section 482

of the Code of Criminal Procedure and give an end to the

criminal proceedings.

9] Learned counsel for the applicants, on instructions

of the applicants, who are personally present in the court,

make a categorical statement that all the proceedings filed

at the instance of the applicants against non-applicant no.2

stand disposed of.

10] We find that the continuation of the criminal

proceeding would act an unnecessary hindrance in the

harmonious relationship between the parties like applicant

no.1 and non-applicant no.2, who have amicably settled

their dispute and decided to reside separately.

11] In that view of the matter, Rule is made absolute in

terms of prayer clause (a).

                (Kum. Indira Jain, J.)             (B.R. Gavai, J.)

                                     .........
 Gulande, PA