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C vs Indira Nagar, Loha, Tq. Loha on 9 October, 2012

Bombay High Court C vs Indira Nagar, Loha, Tq. Loha on 9 October, 2012Bench: Shrihari P. Davare

1 crap3629.12 rt

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

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CRIMINAL APPLICATION NO. 3629 OF 2012 Shankar Panditrao Tokalwad,

C

age 41 years, occ. Labour,

r/o Loha, Tq. Loha, Dist. Nanded …Applicant [Original Accused No.1)

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VERSUS

1]

ig

The State of Maharashtra,

through police station Loha,

Tq. Loha, Dist. Nanded,

H

2] Ranjana @ Soni w/o Shankar Tokalwad, age 36 years, occ. household,

r/o Ranisawargaon, at present

y

Indira Nagar, Loha, Tq. Loha,

District Nanded …Respondents ba

[No. 2 Orig. complainant]

…..

Shri R.R.Shaikh, advocate for applicant om

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. B

DATED : 9th OCTOBER, 2012

ORAL JUDGMENT : –

1] Heard respective learned counsel for the parties. Leave to correct affidavit in reply granted. ::: Downloaded on – 09/06/2013 19:15:54 ::: 2 crap3629.12 rt

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

hearing.

C

2] By the present application preferred by the applicant (husband) i.e. original accused no.1 against respondent no.2 h

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

Criminal Procedure, the applicant prayed that permission be H

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. y

ba

28 of 2007 pending before the learned Additional Sessions Judge, Kandhar, and also prayed to quash and set aside the om

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 B

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. ::: Downloaded on – 09/06/2013 19:15:54 ::: 3 crap3629.12 rt

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

She had filed complaint/first information report with the police station Loha on 8.7.2005 alleging mental and physical cruelty to C

her at the hands of the applicant and other co-accused. Accordingly, Crime No. 68 of 2005 was registered against the h

applicant and other co-accused for the offences punishable ig

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

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 y

ba

Regular Criminal Case No. 143 of 2005 was registered against them. After trial of the said criminal case, the learned Judicial om

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 B

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 ::: Downloaded on – 09/06/2013 19:15:54 ::: 4 crap3629.12 rt

Judge, Kandhar on 16.11.2007. The said appeal was admitted and the substantive sentence was suspended and the applicant ou

herein was released on bail on the said date. However, thereafter without hearing the applicant/his advocate, learned C

Additional Sessions Judge, Kandhar, dismissed the said appeal by order, dated 6.10.2010 for want of prosecution. h

5]

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Aggrieved thereby, the applicant herein filed Criminal H

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 y

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Criminal Writ Petition No. 75 of 2012 praying permission to compound the matter. Accordingly, this court allowed Criminal om

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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 B

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. ::: Downloaded on – 09/06/2013 19:15:54 ::: 5 crap3629.12 rt

6] Accordingly, the parties appeared before the learned Additional Sessions Judge, Kandhar on 21.7.2012 and ou

produced the settlement-deed Exh.12 and application Exh.11 seeking permission to compound the matter. However, learned C

Additional Sessions Judge, Kandhar passed an order below Exh.11 in Criminal Appeal No. 28 of 2007 on 21.7.2012 h

observing that, “the application itself is untenable and question ig

of granting permission for compounding the offences does not H

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 y

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herein above.

om

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 B

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 ::: Downloaded on – 09/06/2013 19:15:54 ::: 6 crap3629.12 rt

requested for compounding the offence and to acquit the accused, but the learned Additional Sessions Judge, Kandhar ou

did not consider the said application on the ground that Section levelled in the matter is not compoundable, and therefore, said C

application was filed by order, dated 21.7.2012. She further stated in the said affidavit in reply that the respondent no.2 h

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

such they have settled the dispute and are residing together H

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 y

ba

learned Additional Sessions Judge, Kandhar. The said affidavit in reply has been sworn in and affirmed by respondent no.2 om

before this court, and she is also present today in the court in person and admitted the contents thereof. B

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 ::: Downloaded on – 09/06/2013 19:15:54 ::: 7 crap3629.12 rt

the conviction and sentence imposed upon him is the continuation of proceeding and since the parties have settled ou

the dispute amicably out of the court, continuation of the said appeal would be an abuse of process of court, and therefore, C

urged that criminal proceeding against the applicant be quashed and set aside and relied upon the judicial h

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

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

at 2008 ALL SCR 2111.

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9] Undisputably, the applicant herein has been ba

convicted and sentenced for the offence punishable under Section 498A of the Indian Penal Code by the learned Trial om

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 B

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 ::: Downloaded on – 09/06/2013 19:15:54 ::: 8 crap3629.12 rt

in the present proceeding and confirmed the said position and it also stated therein that she is residing along with the applicant ou

happily for the substantial period i.e. for last seven months. Moreover, respondent no.2 has no objection to compound the C

offence and to quash the proceeding in appeal against the applicant which is pending before the learned Additional h

Sessions Judge, Kandhar.

ig

H

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) y

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happily and she is not interested in prosecuting the criminal proceeding initiated against the applicant. Admittedly, Criminal om

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. B

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 ::: Downloaded on – 09/06/2013 19:15:54 ::: 9 crap3629.12 rt

against the applicant i.e. appellant in Criminal Appeal No. 28 of 2007 flowing from the first information report lodged under ou

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

C

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

criminal proceeding pending against the applicant i.e. appellant ig

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

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 y

ba

2007 before the learned Additional Sessions Judge, Kandhar is accordingly disposed of, and consequently, bail bond of the om

applicant stands cancelled. Fine amount, if any deposited by the applicant, be refunded to him. B

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

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