cran2639.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2639 OF 2010 1 Sunil s/o Kashinath Shinde, Age 24 years, Occ. Agril, R/o. Kanadi, Tq. Ashti, District Beed. 2 Shobha w/o Dikar Misal, Age 25 years, Occ. Household, R/o. Andhalewadi, Tq. Ashti, District Beed 3 Sheshrao s/o Suryabhan Sanap, Age 32 years, Occ. Service, R/o. Ashti, Tq. Ashti, 4 Sadashiv s/o Dnyanoba Andhale, Age 30 years, Occ. Agri. R/o. Andhalewadi, Tq. Ashti, District Beed ...Applicants Versus 1 The State of Maharashtra Through Police Station, Ashti District Beed 2 Sunita Ashok Shinde, Age 22 years, Occ. Household, R/o. Kanadi, Tq. Ashti, District Beed, at present R/o. Kawdane, Tq. Karjat, District Ahmednagar ...Respondents ..... Mr. S.J. Salunke, advocate for the petitioner Mr. G.R. Ingole, A.P.P. for respondent No.1 Mr. R.J. Nirmal, advocate for respondent No.2 ..... cran2639.10 -2- CORAM: A.V. POTDAR, J. DATED: 27TH APRIL, 2011 JUDGMENT :- 1 Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 2 The instant application is filed by the applicants under Section 482 of Cr.P.C. for quashing of Cri. M.A. No. 79 of 2010 filed against the applicants by respondent No.2 directly in the Court of learned J.M.F.C. Ashti on 8.3.2010 for the offences punishable under section 420, 466, 467, 474, 323, 504, 506 r.w. 34 of I.P.C. It is also prayed that applicants may be acquitted from the prosecution. It is further prayed by the applicants that the effect, implementation, operation and execution of the order dated 8.3.2010 passed by learned J.M.F.C. Ashti U/sec. 156(3) of Cr.P.C. in Cri. M.A. No. 79 of 2010 be stayed as also the investigation in Cri. M.A. No. 79 of 2010 and the consequent F.I.R. may be stayed and the trial on the basis of Cri. M.A. No. 79 of 2010 may be stayed. 3 I have heard learned counsel for the parties. It is urged across the bar that the respondent No.2 original complainant Sunita Ashok Shinde is sister-in-law of the applicant No.1. Husband of the cran2639.10 -3- respondent No.2 i.e. the complainant had purchased two plots alongwith one Rambhau Shinde and Shankar Shinde. Husband of respondent No.2 expired on 9.10.2004. It appears that on 23.10.2009, applicant No.1 Sunil Kashinath Shinde sold the property of the husband of respondent No.2 to applicant No.2 Shobhabai Dinkar Misal by registered sale deed and applicant Nos. 3 and 4 have signed as attesting witnesses to that registered deed of conveyance. 4 On 8.3.2010 the respondent No.2 lodged a private complaint before learned J.M.F.C. Ashti which is numbered as Cri. M.A. No. 79 of 2010. Considering the allegations/averments made in the compliant, the Magistrate was pleased to pass order to carry out investigation in the complaint lodged before learned J.M.F.C. under Section 156(3) of Cr.P.C. vide his order dated 8.3.2010. It further appears that the respondent No.2 has also filed Special Civil Suit No. 48 of 2010 in the court of learned C.J.S.D. Beed against applicant No. 2 for cancellation of sale deed and two others. It further appears that subsequent to filing of suit, the parties to the said suit settled their dispute amicably out of Court and filed compromise pursis before the learned C.J.S.D. Beed on 22.4.2010. It is agreed between the parties that the registered sale deed executed by the applicant No.1 in favour of applicant No.2 to be cancelled and the possession to be handed cran2639.10 -4- over back to respondent No.2 complainant, who filed the complaint before the learned J.M.F.C Ashti. It is submitted that accordingly possession of the disputed property was handed over to the respondent No.2-complainant. In view of the compromise pursis filed before the learned C.J.S.D. decree came to be passed on 22.4.2010 signed by the Presiding Officer on 29.4.2010. In the compromise pursis filed by the parties before the learned C.J.S.D. it was also agreed that the complaint filed by respondent No.2 against these applicants to be withdrawn. 5 In view of the said compromise terms, on 30.4.2010 another pursis was filed before the learned J.M.F.C. Ashti who seized with Cri. M.A. No. 79 of 2010 contending that as now the parties have settled their dispute outside the court, they may be allowed to compromise/compound the pending criminal case on the file of learned J.M.F.C. Ashti. By his order dated 30.4.2010, the learned Magistrate rejected the said pursis on the ground that as he has directed investigation of offence under Section 156(3) of Cr.P.C. he cannot accept the compromise pursis and liberty was given to the complainant and accused to approach the Investigating officer i.e. concerned Police station Officer, Ashti. In law, once the criminal law is set in motion and the complaint is recorded in the police station, the concerned police cran2639.10 -5- station officer cannot settle the matter. It is thus against the rejection of compromise pursis by the learned J.M.F.C. the applicants have approached this Court in its extra ordinary writ jurisdiction under Section 482 of Cr.P.C. 6 In response to the notice issued to respondent No.2, the said respondent appeared before this court and filed her affidavit in reply. In uncertain words, in para 8 of the said affidavit in reply, respondent No. 2 has admitted that the matter is already settled before the court below and she has received back the possession of the property of her late husband. According to her, as her rights are recognized by the applicants and settlement pursis was filed before the learned C.J.S.D. she had no objection to settle the matter. 7 I have heard respective counsel. In the light of the above referred facts, no doubt prior to amendment introduced to Cr.P.C. to Section 23 which came into force on 31.12.2009, Section 420 earlier was not compoundable, even with permission of the court. But by virtue of this amendment to Section 320(2), Section 420 were brought within the ambit of offence compoundable with the permission of the court, if the person who is cheated his interest to compound the offence. Considering the amendment to Section 320(2) of Cr.P.C. as cran2639.10 -6- the person who is cheated, here respondent No.2 has shown her willingness to compound the offence as the matter is settled before the competent Civil Court and the decree is accordingly drawn. She has also admitted that she has received back the possession of the property which she had earlier lost and she has further admitted that her rights were recognized by these applicants before the competent Civil Court. 8 Even though the remaining offences as alleged in the complaint i.e. offences punishable under sections 466, 467, 474 etc. are concerned they are not compoundable. These offences alleged in the complaint are offshoot of the main offence under Section 420 of I.P.C. As she had earlier lost the property of her husband at the hands of applicant No.1 which was delivered to applicant No.2 but now she is put back in possession of the property. It is also an admitted fact that the offence under Section 420 is now made compoundable in view of the amendment introduced in Cr.P.C. as stated above. 9 In the light of the observations of the Apex Court in the matters of B.S. Joshi and others Vs. State of Haryana and another, reported in AIR 2003 SC 1386 and Madhu Limaye Vs. State of Maharashtra reported in AIR 1978 SC 47, wherein the scope of cran2639.10 -7- exercise of extra ordinary powers under Section 482 of Cr.P.C. r.w. Article 226 of the Constitution are discussed in para 8. Wherein it is observed that considering the ratio of the judgment observed in those rulings of the Apex Court does not lay down any general proposition limiting the power to quash criminal proceedings, F.I.R. or complaint as vested in Section 482 of Cr.P.C. or extra ordinary power under Article 226 of the Constitution of India. Therefore, to secure the ends of justice, quashing of F.I.R. becomes necessary and Section 320 would not be a bar to exercise the power to quash the F.I.R. 10 It is however, different matter depends upon incident of each case, whether to exercise such power or not. Considering the scope of the powers vested in this Court in its extra ordinary writ jurisdiction under Section 482 of Cr.P.C. r.w. Article 226 of the Constitution bearing in mind the main offence alleged under Section 420 of I.P.C. now made compoundable by virtue of amendment introduced to the Cr.P.C. and the other offences are offshoot of the main offences keeping in mind that respondent No.2 and applicant No.1 are close relatives, it becomes necessary to quash the said offences. The parties have already settled their dispute before the competent Civil Court and to keep peace and harmony between the parties to the proceeding, this is fit case wherein the parties can be allowed to cran2639.10 -8- compound the offence in the extra ordinary jurisdiction of this Court. 11 In view of the facts discussed herein above, criminal application deserves to be allowed in terms of prayer clause “B” and “D” and the same is accordingly allowed in terms of prayer clause “B” and “D” and disposed of. Rule is thus made absolute in the terms as indicated above. *****