D. G. DESHPANDE, J.

( 1 ) HEARD advocates for the petitioner and respondent No. 1. Petitioner is the husband and respondent No. 1 is the wife. A case was instituted against the petitioner under section 498-A of the Indian Penal code. He came to be convicted by the trial Court. The matter went in appeal. Before the appellate Court, the matter was settled between the parties. The petitioner and respondent No. 1 obtained divorce by mutual consent. Respondent no. 1 agreed not to press for the petitioner's conviction. The appellate Court maintained the conviction of the petitioner and gave him benefit of provisions of probation of Offenders' Act.

( 2 ) FIRSTLY the petitioner has filed Criminal Revision Application No. 255 of 2004 against the order of the Sessions Judge because no appeal was maintainable. When this Revision Application came up before learned Single judge, Justice Khanwilkar passed an order referring the Revision Application to a larger Bench.

( 3 ) THEREAFTER, apprehending that the judges deciding the reference, may raise an objection that there is no application under section 482. Therefore, the petitioner filed an application being Criminal Application No. 4079 of 2005 in the Criminal Appellate Jurisdiction of this Court and, the prayers therein were, for setting aside the judgment dated 3rd March, 2004 passed by the 3rd Extra joint District Judge and Additional Sessions Judge, Pune in Criminal Appeal No. 125 of 2001 and for quashing and setting aside C. R. No. 128 registered at swargate Police Station under section 482 of the Criminal Procedure Code. This criminal Application appears to have been filed on 27th June, 2005.

( 4 ) AT or about the same time, i. e. on 25th July, 2005, in anticipation that if the Division Bench or the Bench to which the reference is made comes to the conclusion that this cannot be done in Criminal Application, the petitioner has filed this petition, being Writ Petition No. 1738 of 2005 challenging the constitutional validity of section 320 (9) of the Criminal Procedure Code. By this writ petition the petitioner prayed for a declaration that the provisions of section 320 (9) of the Code of Criminal Procedure are unconstitutional to the extent the same do not permit compounding of offence under section 498-A of the Indian penal Code and, second prayer was that the petitioner may be permitted to compound the conviction recorded by the Additional Sessions Judge, Pune in criminal Appeal No. 125 of 2001.

( 5 ) WE had given number of opportunities to the advocate for respondent no. 1 to keep respondent No. 1 present. But he failed to do so. Ultimately, the matter was heard by us.

( 6 ) THE petitioner has annexed copy of the judgment of the JMFC Pune by which the petitioner was convicted and sentenced to suffer R. I. for three years and also to pay fine of Rs. 5,000/- and I/d. to suffer further R. I. for three months. He has also annexed copy of the judgment given by the IIIrd Extra Joint District judge, Pune in Criminal Appeal No. 125/2001 filed by the petitioner against his conviction. In this judgment, the appellate Court had recorded reasons in para 3 and it is stated as under :-"it must be mentioned here that, today all the concerned parties are present before the Court, stating that the matter has been amicably settled between the husband appellant and wife complainant viz. accused No. 1 kiran T. Ingale and complainant Smt. Anupama Kiran Ingale. They even have submitted their settlement before the Court as per Exhibits 7 and 8. The offence being non-compoundable cannot be compounded. However, certainly taking into consideration the circumstances of this case, benefit of probation under section 4 (1) of the Probation of Offenders' Act can be made available to the appellant accused No. 1 who is admittedly first offender and entitled for such benefit. "consequently, the conviction was confirmed but the sentence was converted to a bond of Rs. 5,000/- as provided by the Probation of Off

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