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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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