1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.82 OF 2009 IN CRIMINAL REVISION APPLN. NO.126/2002. 1) Devinder Singh s/o Gurusharan Singh Khurana and Anr. .. APPLICANTS VERSUS 1) The State of Maharashtra and Anr. .. RESPONDENTS ***** Mr.DL Agrawal, Adv. for Applicants ; Mr.D.R.Korde, APP for State. Mr.SS Jadhavar, Adv. h/f Mr. MK Goyanka, Adv. for Respondent no.2. ---- CORAM : K.U.CHANDIWAL, J. DATE : 26th August, 2009. PER COURT : 1) The applicants herein are the accused in Criminal Case being RCC No. 633/2000 for the offences in terms of Sections 4987A, 323, 504 r/w 34 of IPC, based on the complaint filed by Respondent no.2/wife – Monica. The learned VII th JMFC, Aurangabad, convicted accused/applicants for the said offences and sentenced them to 2 suffer imprisonment till rising of the Court and to pay fine of Rs. 5,000/- each. The matter was taken by the present applicants/accused before the learned Sessions Judge in Criminal Appeal No. 20/2001. The learned Sessions Judge dismissed the appeal and confirmed the sentence passed by learned JMFC. It is this order, which is tested in Criminal Revision Application No. 126/2002. The Revision is admitted and pending before this Court. 2) According to the applicants/accused, they have settled the controversies with the wife – Monica, as Petition being No.B-13/2002 for recovery of Stridhan property was filed, it was settled. Another petition for divorce bearing No.A-168/2002 in the Family Court at Aurangabad was filed in which the matter was referred to the Marriage Counselor for reconciliation, however, it could not reach conclusion. Accordingly, the terms of compromise were reduced in writing. So far as the proceedings regarding Stridhan property were concerned, after recording 3 evidence, the learned Judge dissolved the marriage by a decree with mutual consent in terms of Section 13-(B)(1) of the Hindu Marriage Act. 3) It is contended by the Counsel for the applicants/accused t hat in view of the compromise arrived at between the parties and in view of granting the divorce petition, it is in the interest of justice that the judgment of conviction, passed by both the Courts (referred above), subject matter of Criminal Revision Application No. 126/2002, be quashed and set aside. The learned Counsel contended this Court has inherent powers to quash the judgment and order of conviction in view of Section 482 of Cr.P.C. as continuation thereof will tantamount abuse of process of law. 4) The Counsel in order to substantiate his contention, placed reliance to the Judgment of the Apex Court in the matter of B.S.Joshi and Ors. Vs. State of Haryana and Anr. reported in AIR 2003 SC 1386. The Hon’ble Lordships in terms of Section 482 and 320 of Cr.P.C. observed, that 4 such inherent powers were exercised by the High Court. The powers under Section 320 Cr.P.C. does not limit or affect the powers of the High Court to quash the proceedings under Section 482 of the Code . In the said case, it was settlement between the husband and wife, who resolved all controversies and got mutual divorce. The wife filed an application for quashing the proceedings initiated by her against the husband and the relatives. The High Court did not exercise such inherent powers and, therefore, the matter was taken to the Apex Court and the Hon’ble Lordships in the Apex Court, in view of the facts of the said case, observed, “ the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code, and the Hon’ble Lordships, set aside the impugned judgment and allowed the appeal and quashed the F.I.R. in the above case. 5) The above exercise, which led the wife 5 to move the Apex Court was naturally denial of exercise of powers by High Court. In the present case, the wife – Monica is not in agreement to settle the controversies, giving rise to conviction of the applicants/accused, for which revision No.126/2002 is pending. The prayers in the Criminal Revision No.126/2002 read as under : “(A) The Revision Petition may kindly be allowed; (B) The Record and Proceedings may kindly be called for; (C) The sentence passed by the Trial Court in RCC No. 633/2000 convicting the petitioner under Section 498-A, 323, 506, r/w 34 of IPC and sentence to suffer imprisonment till rising of the Court and to pay fine of Rs. 5,000/- each , be quashed and set aside. SIMILARLY, the order, confirming by the I Ad hoc Additional Sessions Judge, Aurangabad in Criminal Appeal No. 20/2001, vide its judgment dated 2.2.2002 is necessary to be set aside. (D) Any other relief may also be granted for which the petitioners are legally entitled are also be granted in their favour.” 6) Since the revision itself is pending, it is difficult to digest that the present application, in the manner, it is prosecuted, 6 could be tenable to invoke jurisdiction of this Court under Section 482 of Cr.P.C. 7) The agreement between the parties, to which reference was given, recorded as Consent Terms, in paragraph 5 thereof, reads - “ We mutually hereby agreed to withdraw all the written or un-written allegations against each other in this petition.” This was on 2nd of February, 2003, while conviction recorded by the learned JMFC is dated 21.3.2001 and confirmed in the appellate court on 2nd February, 2002. Nobody prevented the husband or other accused persons to make reference of the present proceedings, subject matter of revision, having compounded or settled. The consent terms referred above will not come in acceleration to the contention agitated by the present applicants/accused. 8) The submission of Stridhan was returned, the wife barely stayed for 14 days with the husband, need not be pondered at this stage of the matter as this Court is called upon to deal with dissolution of marriage and exercise powers 7 under Section 482 of Cr.P.C. 9) The Counsel, opposing such application, representing the wife, invited my attention to the Judgment of this Court in the matter of Smt. Neeta Sanjay Tadage Vs. Smt. Veemal Sadashiv Tadage and Ors, reported in 1997 Cri.L.J. 3263. The brother Judge has observed that – the offence under Section 498A of IPC is non-compoundable, compounding of offence which is non-compoundable cannot be accomplished by invoking writ jurisdiction of High Court or inherent powers.” 10) The fact situation in the matter at hand illustrate that for invocation of powers under Section 320 of Cr.P.C., there must be consent, on mutual understanding between the complainant (herein wife – Monica) and the accused. In the instant case, there is no such eventuality. The wife is opposing such exercising of powers with tooth and nail. The exercise of powers under Section 482, as sought by the counsel for the accused/applicants, in the situation, could not be exercised, as the parties knew that there was 8 already conviction recorded against the applicants/accused, but they allowed the ink to be dried, though reference to dissolution to re effect mutual termination. In the situation, Criminal Application lacks merit, it is according dismissed. ( K.U.CHANDIWAL ) JUDGE bdv/cran82.09