Bombay High Court 7] Shri Mava @ Sursing Pawara vs H on 17 October, 2012Bench: Shrihari P. Davare

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

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CRIMINAL APPLICATION NO. 3686 OF 2012 1] Shri Vishwanath s/o Dohanya Pawara, C

age 34 years, occ. Service,

r/o Ganesh Nagar, Shahada,

Tq. Shahada, Dist. Nandurbar,

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2] Shri Dohanya Orama Pawara, ig

age 55 years, occ. Service,

3] Sau. Kamalibai Dohanya Pawara, H

age 48 years, occ. Agril.,

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

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5] Sunil Dohanya Pawara,

age 29 years, occ. Agril.,

Nos. 2 to 5 R/o Jelsingpada,

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Roshmal Bk. Tq. Akrani,

Dhadgaon, Dist. Nandurbar

6] Pandit Dohanya Pawara,

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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]

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VERSUS

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1] The State of Maharashtra, through Police Inspector,

Dhadgaon Police Station,

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

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R/o Plot No. 258, Patelwadi,

Nandurabar, Dist. Nandurbar. …Respondents ig [No.2 Original Complainant] H

…..

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 y

…..

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CORAM : SHRIHARI P.DAVARE, J. DATED : 17th October, 2012 om

ORAL JUDGMENT : –

1] Heard respective learned counsel for the parties. B

2] Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties taken up for final hearing.

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3] By the present application filed by the applicants ou

under Section 482 of the Code of Criminal Procedure, the applicants prayed that the proceeding bearing R.C.C. No. 12 of C

2009 filed by respondent no.2 herein i.e. original complainant in the Court of Judicial Magistrate, First Class, Nandurbar under h

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

aside and the applicants be acquitted for the offence punishable H

under Section 498A of the Indian Penal Code. 4] The factual matrix of the matter are as follows :- y

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The applicants herein are the original accused in om

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 B

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 ::: Downloaded on – 09/06/2013 19:17:37 ::: 4 crap3686.12 rt

2009.

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5] The applicants have approached this court for quashing and setting aside R.C.C. No. 12 of 2009 filed by C

respondent no.2 before the learned Judicial Magistrate, First Class, Nandurbar, under Sections 498A, 323, 504, 506(2) and h

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

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

the said R.C.C. No. 12 of 2009 is annexed at Exh. ‘A’ with the petition.

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6] Admittedly, respondent no.2-Latika was legally wedded wife of applicant no.1-Vishwanath, since their marriage om

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 B

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. ::: Downloaded on – 09/06/2013 19:17:37 ::: 5 crap3686.12 rt

Hence, she is residing with her parents at Nandurbar since December, 2007. The efforts made by both the parties and ou

their relatives for compromise yielded no results. Thereafter, respondent no.2 filed private complaint before the Judicial C

Magistrate, First Class, Nandurbar under Sections 498A, 323, 504, 506(2) and 420 r/w Section 34 of the Indian Penal Code h

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

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

the said proceeding, mediation took place between the parties and amicable settlement took place between them. y

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7] Accordingly, parties preferred joint application in R.C.C. No. 12 of 2009 before the learned Judicial Magistrate, om

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 B

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 ::: Downloaded on – 09/06/2013 19:17:37 ::: 6 crap3686.12 rt

13.6.2012 and rejected the said application observing that offence punishable under Section 498A of the Indian Penal ou

Code is non-compoundable.

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8] Hence, the applicants have preferred present application under Section 482 of the Code of Criminal h

Procedure contending that although the offence under Section ig

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

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. y

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According to the applicants, if the prosecution is allowed to continue, it will result into abuse of process of court; since the om

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 B

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 ::: Downloaded on – 09/06/2013 19:17:37 ::: 7 crap3686.12 rt

under Section 498A of the Indian Penal Code be quashed and set aside, in the interest of justice. ou

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

affidavit in reply and stated that on her complaint prosecution was launched against the applicant under Section 498A, 323, h

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

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

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. y

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She further stated that since they belong to Adiwasi community, they have taken divorce on Stamp paper of Rs.100/- as per the om

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 B

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 ::: Downloaded on – 09/06/2013 19:17:37 ::: 8 crap3686.12 rt

quashed and set aside. The said affidavit has been sworn in by respondent no.2 and same has been filed before this court ou

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 C

was present before this court on the said date and admitted the contents of the affidavit in reply and her signature thereon and h

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

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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 y

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court and they have compromised the matter amongst themselves, and therefore, respondent no.2 decided to om

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 B

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 ::: Downloaded on – 09/06/2013 19:17:37 ::: 9 crap3686.12 rt

between respondent no.2-Latika and applicant no.1-Vishwanath and matter has been settled between the parties amicably, and ou

therefore, she does not desire/intend to proceed with R.C.C. No. 12 of 2009 filed by her, more particularly, in respect of C

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 h

quashed to the extent of said offence and gave her consent ig

therefor.

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12] Thus, it is crystal clear that since the parties have resolved the dispute between themselves amicably, there is no y

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propriety in continuing with R.C.C. No. 12 of 2009, more particularly, to the extent of Section 498A of the Indian Penal om

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 B

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, ::: Downloaded on – 09/06/2013 19:17:37 ::: 10 crap3686.12 rt

and therefore, said proceeding to the extent of Section 498A of the Indian Penal Code deserves to be quashed and set aside ou

by allowing the present application. C

13] In the result, present application is allowed in terms of prayer clause ‘B’ thereof and R.C.C. No. 12 of 2009 pending h

before the learned Judicial Magistrate, First Class, Nandurbar, ig

stands quashed and set aside to the extent of offence H

punishable under Section 498A of the Indian Penal Code. 14] Rule is made absolute in the afore said terms. y

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15] Registry to inform the concerned court accordingly. om

(SHRIHARI P. DAVARE),

JUDGE.

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