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Nihaal Wahab Bagadia vs The State Of Maharashtra And Ors on 5 November, 2019

38-apl-1541.2016.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRI. APPLICATION (APL) NO. 1541 OF 2016

Mr. Nihal Wahab Bagadia … Applicant

Versus

The State of Maharashtra and Ors. … Respondents

Mr.Aabad Ponda a/w Mr. Ashish Raghuvanshi for the applicant.

Mr. Rizwan Merchant for respondent nos. 2 and 3.

Mr. F.R. Shaikh, APP for the State.

CORAM : B.P. DHARMADHIKARI
SMT. S.S. JADHAV, JJ.

DATE : NOVEMBER 05, 2019

P.C.:

The applicant husband seeks quashing of CR No. 255 of

2014 dated 28/7/2014 and Sessions Case No. 202 of 2015.

2. The fact that the dispute arose out of matrimonial

controversy between the applicant and respondent no. 3 is not

in dispute.

3. There were two other persons namely mother and sister of

the present applicant as co accused and in terms of the consent

terms, entered into between the parties on 13/09/2014, the

above proceedings, qua the co-accused, have been quashed and

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set aside. A copy of the order dated 25/2/2016 passed by the

Division Bench of this court in Criminal Application No. 283 of

2015 is made available as annexure with the petition.

4. It appears that at that time the prayer of the present

petitioner for quashing could not be looked into as the question

of constitutionality or otherwise of Sectionsection 377 IPC was pending.

5. During the arguments our attention has been invited to the

fact that on 16/10/2013 view of Full Bench of Delhi High Court

against the constitutionality was in force and it was upset by the

Hon’ble Apex Court on 11/12/2013. The controversy ultimately

has been settled by constitute Bench of Hon’ble Apex Court in

the case of Joseph Shine Vs. Union of India reported at 2018

SCC Online SC 1676 on 27/09/2018 and the consensual

relationship has been excluded from the said provision.

6. In this backdrop, learned counsel for the applicant submits

that the video clip relied upon by the prosecution does not show

any such relation with the complainant and the third person who

appears therein has never made any grievance about the

relationship. It is further pointed out that there is no allegation of

any poisonous substance being used or administered by the

petitioner and the provisions of Sectionsection 328 IPC are also not

attracted.

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7. Learned senior counsel for the respondent nos. 2 and 3 has

not disputed the consent terms and or relevant development in

the field of law. He however, points out that having filed

complaint, it has been looked into in accordance with law and if

the prosecution has to be withdrawn, the jurisdiction is with

respondent no. 1 State Government.

Learned APP appearing for respondent no. 1 supports the

contention of respondent nos. 2 and 3.

8. The matter essentially is arising out of the matrimonial

dispute. Offences involved are under Sectionsections 328, Section377, Section417,

Section418, Section494, Section495 read with Sectionsection 34 IPC and Sectionsection 67 and Section67(A)

of the Information Technology Act, 2000.

9. The consent terms are even today accepted by the

parties. Accordingly except for the technical objection, pointed

out by the learned counsel for respondent nos. 2 and 3, the

matter could have been disposed of.

10. The law as settled by the Constitute Bench in Joseph Shine

(supra) is not in dispute and it therefore, is law prevailing in the

year 2013. The concerned victim (if any) shown in the video clip

has never made any grievance about the relationship. There is

no material on record to substantiate the charge under Sectionsection

328 IPC.

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11. In this situation, we are inclined to make the rule absolute

in terms of prayer clause (a). Petition is accordingly allowed and

disposed of.

(SMT. S.S. JADHAV, J.) (B.P. DHARMADHIKARI, J.)

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