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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38-apl-1541.2016.odt
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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