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Javed Khan S/O Abdul Hameed Khan … vs The State Of Maharashtra And Anr on 20 February, 2018

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

CRIMINAL WRIT PETITION NO. 1481 OF 2016

1] Javed Khan s/o Abdul Hameed Khan,
age 40 years, occ. Service,
R/o B-Flat 206 2nd Floor,
Tain Square, Fatema Nagar,
Wanowarie, Pune – 2,

2] Shahenaz @ Kareema w/o Abdul Hameed Khan,
age 61 years, occ. Household,
R/o as above,

3] Nazneen d/o Abdul Hameed Khan,
age 44 years, occ. Service,
R/o 3rd Floor, Satgulab Complex,
Next to Tara Pan Centre,
Osmanpura, Aurangabad,

4] Mahjabeen @ Jabin w/o Kazi Ashfaq,
age 42 years, occ. Service,
R/o as above,

5] Tahseen w/o Hidayat Ali,
age 34 years, occ. Service,
R/o House No. 8-13-273, Galli No.1,
Beside Firdos Jwellers,
Sami Colony, Roshan Gate,
Aurangabad,

6] Shaheen w/o Sheikh Malik,
age 45 years, occ. Service,

7] Sheikh Malik s/o Sheikh Usman,
age 47 years, occ. Service,
Both 06 07, R/o Flat 306,
3rd floor, Ikon Avenue,
Central Street, Pune …Petitioners
[Orig. Accused no. 1 to 5]

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VERSUS

1] The State of Maharashtra,

2] Firdos div/o Javed Khan
@ Firdos d/o Shaikh Aziz
Ahemad,
age 23 years, occ. Household,
R/o Flat No.9, 2nd Floor,
Amodi Complex,
Beside B.M.C Bank,
City Chowk, Aurangabad …Respondents
[No.2 Orig. complainant]

…..
Mr. A.S.Barlota, advocate for the petitioners
Mr A.P.Basarkar, A.P.P. for respondent no.1
Mr. R.C.Bora, advocate with Mr. Shaikh Shafique,
advocates for respondent no. 2
…..

CORAM : K.L.WADANE, J.

DATED : 20th February, 2018

ORAL JUDGMENT :

Rule. Rule made returnable forthwith.

With the consent of the learned counsel for

parties, the petition is taken up for final

hearing at the admission stage. Heard learned

counsel for the respective parties.

2] The petitioners have challenged the order

below Exh.12 in Regular Criminal Case No. 977 of

2013, dated 3.9.2016, by which application filed

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by the petitioners for their discharge is

rejected.

3] I have heard the learned counsel for the

petitioners as well as the learned A.P.P. and the

learned counsel for the respondents.

4] Petitioner no.1 married with respondent

no.1 on 8.7.2012. After solemnization of the

marriage, respondent no.2 cohabited with

petitioner no.1 at Pune for some time. On

1.11.2012 petitioner no.1 has given Talaq to

respondent no.2.

5] On 21.11.2012 respondent no.2 filed

complaint before the Judicial Magistrate, First

Class, Aurangabad, seeking directions under

Section 156 (3) of the Criminal Procedure Code.

The prayer of respondent no.2 was allowed and

directions under Section 156 (3) of the Criminal

Procedure Code were given. Pursuant to the

investigation, the concerned police have filed

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charge sheet against the petitioners and other

accused bearing R.C.C. No. 977 of 2013.

6] On the same set of facts, respondent no.2

filed petition under Section 12 of the Protection

of Women from Domestic Violence Act, 2005 bearing

Criminal Miscellaneous Application No. 2076 of

2012 and another petition for maintenance under

the provisions of Section 125 of the Criminal

Procedure Code bearing Petition No. E-15 of 2013

before the Family Court at Aurangabad.

7] On 18.11.2013, petitioner no.1 and

respondent no.2 got settled their disputes

amicably before the Mediator by recording terms of

settlement in writing and on the settlement there

are signatures of petitioner no.1, 3 and

respondent no.2 along their respective advocates.

8] In view of the said settlement, it was

agreed by respondent no.2 that she will help the

petitioners to dispose of the proceedings bearing

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Regular Criminal Case No. 977 of 2013. In spite

of directions given by this Court in Criminal

Application No. 4430 of 2013, respondent no.2

remained absent. Thereafter, as per the liberty

granted by this Court, the petitioners have moved

application below Exh.12 for their discharge.

9] Learned counsel for the petitioners

submits that pursuant to the settlement, other

proceedings were compromised, however, now

respondent no.2 is not ready to compound the

offence punishable under Section 498-A of the

Indian Penal Code.

10] Learned counsel appearing for respondent

no.2 submits that petitioner no.1 agreed to return

certain articles belonging to respondent no.2,

however, he failed to return the same.

11] Learned counsel for the petitioners

submits that those articles were kept with a third

person namely Jamil Bhai and after the compromise

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of Regular Criminal Case No. 977 of 2013,

respondent no.2 is entitled to take those articles

lying with third person.

12] Learned counsel for the petitioners drawn

my attention to the compromise took place between

the parties. A copy of the same is placed on

record in this proceeding. On perusal of the

same, it appears that the compromise was recorded

in Miscellaneous Application No. 2076 of 2012

between petitioner nos. 1 and 3 and respondent

no.2 signed by their advocates also. This

compromise is verified by the learned Additional

Sessions Judge, Aurangabad. On perusal of the

contents/conditions of the compromise, it was

agreed by and between the parties that the cases

pending against the petitioners have to be

withdrawn. It is also mentioned in the compromise

that respondent no.2 has accepted permanent

alimony of Rs. 2,75,000/- through Demand Draft,

dated 18.11.2013. It was further agreed that

after the compromise of the case under Section

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498-A of the Indian Penal Code, respondent no.2 is

at liberty to take the articles kept with one

Jamil Bhai.

13] So, sum and substance of the compromise is

that all the cases pending between the parties

have to be withdrawn and further it is clear that

petitioner no.1 has paid amount of maintenance in

lump-sum and respondent no.2 has accepted the same

by Demand Draft. Nowhere it is the case of

respondent no.2 that petitioner no.1 obtained her

signature by inducement or fraud. On the

contrary, from the order passed by learned

Additional Sessions Judge, Aurangabad, it appears

that both the parties to the settlement i.e.

petitioner no.1 and respondent no.2 have accepted

the contents of the settlement to be true.

14] In such circumstances and as per the

observations of the Apex Court in the case of

Mohd. Shamim vs Nahid Begum in Criminal Appeal No.

23 of 2005 and in view of the settlement arrived

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at between petitioner no.1 and respondent no.2,

continuation of such proceedings would be an abuse

of process of the Court.

15] The Trial Court has not taken in to

consideration the fact that petitioner no.1 and

respondent no.2 have settled their disputes once

for all, that too, after acceptance of lump-sum

amount of maintenance by respondent no.2. Now,

respondent no.2 cannot turn around and say

contrary to the settlement arrived at between the

parties.

16] In view of above, the Criminal Writ

Petition is allowed. The order passed below

Exh.12 in Regular Criminal Case No. 977 of 2013 is

hereby quashed and set aside and application

Exh.12 is allowed and petitioners stand discharged

from Regular Criminal Case No. 977 of 2013. No

costs. Rule is made absolute accordingly.

(K.L.WADANE, J.)
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