Important Point – Malicious criminal proceeding cannot be allowed to continue.

SHALINI PHANSALKAR JOSHI, J.

1. This writ petition takes an exception to the order passed by the Additional Sessions Judge, Nashik on 17.8.2001, in Criminal Revision Application No. 332 of 2000. The said revision was preferred by the petitioners against the order passed by Judicial Magistrate First Class, Nashik on 19th August, 2000 below Exh.19 in Criminal Case No. 165 of 1997. By dismissing the revision application, learned Sessions Judge has confirmed the order passed by the learned Magistrate thereby refusing to act upon the pursis to bring on record that the matter was already compromised and settled between the parties, hence further proceedings are not tenable.

2. Brief facts of this writ petition can be stated as follows:-

The marriage of petitioner and respondent No. 1 had taken place on 16th May, 1981 at Nashik a per Hindu rites and ceremonies. In September, 1997, the petitioner No. 1 had filed a petition for divorce bearing HMP No. 209 of 1997 against respondent No. 1, on the ground of cruelty. During pendency of the said marriage petition, parties arrived at amicable settlement and the consent terms were executed between the parties. As a result thereof the said divorce petition came to be disposed off on the basis of pursis filed on 24th August, 1997. However, meanwhile respondent No. 1 had already filed Criminal Case No. 165 of 1997 against present petitioner No. 1 and his family members for the offence punishable under Section 494 read with Section 109, 114 and 34 of the Indian Penal Code.

3. In view of the settlement arrived at between the parties, an amount of Rs. 5,00,000/- was paid by petitioner No. 1 to respondent No. 1. Respondent No. 1 had agreed to withdraw the said criminal case bearing No. 165 of 1997. When respondent No. 1 received two demand drafts of Rs. 5,00,000/- i.e. one for Rs. 3,00,000/- and another for Rs. 2,00,000/-, she filed pursis at Exh.88 on the date of compromise itself i.e. 24th August, 1997 in R.C.C. No. 165 of 1997 mentioning that she does not want to prosecute the said case in view of settlement arrived at, out of the Court. On the same day, learned Court verified the contents of pursis from respondent No. 1. However, at the relevant time, one Criminal Revision bearing No. 85 of 1999, arising out of the said Criminal Case, was pending in the Sessions Court at Nashik; wherein stay order was passed. Hence the learned Magistrate kept passing of order on pursis in abeyance and directed parties to produce the order vacating the stay by the Sessions Court.

4. On 5th May, 2000, the petitioner produced certified copy of the order passed in Criminal Reversion No. 85 of 1999, showing that in view of the settlement, Revision Petition is already withdrawn. On the same day, petitioner also filed Application at Exh.19 praying to dismiss R.C.C. No. 165 of 1997, in view of the pursis Exh.88, on the ground that the parties have arrived at settlement. On that day, respondent No. 1, was, however, absent and hence matter was kept for passing order on 8.5.2000. But subsequently neither respondent No. 1 appeared nor any order was passed on the said application till 19th August, 2000. On that day respondent No. 1 appeared in the matter and gave her say, mentioning that she has withdrawn her pursis dated 24.8.1999 and she wants to prosecute case. Respondent No. 1, however, did not give any reason for withdrawing the said pursis.

5. In view of her say, learned Magistrate was pleased to reject the application given for dismissal of the case on the ground of compromise between parties.

6. The said order was challenged before the Revisional Court. Revisional Court, by its impugned order, confirmed order of learned Magistrate, by holding that in order to dispose off the case on the basis of compromise arrived at between the parties under Section 320 (8) of Code of Criminal Procedure, consent of respondent-complainant was very much essential and without her consent matter cannot be compounded or dispose