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Cri.Appln.No.1111/2009

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 1111 OF 2009

Smt.Banu Hashim Warunkar,

Age 35 years, Occ.: Household,

Residing at:- School Mohalla,

Mahabaleshwar, Taluka : Mahabaleshwar,

District: Satara

...Applicant

(Original Applicant)

vs.

1) Abdul Rahiman Amin Warunkar,

Age 65 years, Occ.: Business,

2) Mrs.Mumtaj Abdul Rahiman Warunkar,

Age 60 years, Occ.: Household

and Business,

3) Shri Alimoon Abdul Rahiman Warunkar,

Age 30 years, Occ.: Business,

All residing at: 196B, School Mohalla,

Mahabaleshwar, Tal.: Mahabaleshwar,

District : Satara,

4) The State of Maharashtra

...Respondents

(Original Opponents)

Mr.A.V. Anturkar i/b. Mr.Sugandh B. Deshmuch for the

Applicant.

Mr.A.V. Sakhare with Mr.Siddharth Karpe i/b.

M/s.Y.K.S. Legal for Respondent Nos.1 to 3.

Smt.V.R. Bhosale, APP for Respondent No.4-State.

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Cri.Appln.No.1111/2009

CORAM : J.H. BHATIA, J.

DATED : AUGUST 17, 2010

ORAL JUDGMENT :-

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Heard the learned Counsel for the parties.

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Deceased Hashim, husband of the present

applicant, was son of respondent nos.1 and 2 and

elder brother of respondent no.3. According to the

applicant, she was married to Hashim on 28^th March,

1989 and after the marriage, she was living with him

along with respondent nos.1, 2 and 3 in the same

house. On 3^rd September, 1992, her husband died in a

motor accident. According to her, since 1985 her

husband was carrying on business of hotel at Mahatma

Gandhi Mini Market at Mahabaleshwar. He had obtained

licence in respect of gala/shop no.2 in the said

Mahatma Gandhi Mini Market from Municipal Council in

the name of the present applicant. After the death

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Cri.Appln.No.1111/2009

of her husband, the applicant was carrying on the

business of hotel from gala no.2. Gala no.5 was

taken by Viren Veera on licence from the Municipal

Council. In the year 2006, father of the applicant

secured the said shop no.5 from Viren Veera in the

name of Aawez Hashim Warunkar, the son of the

applicant for which amount of Rs.1,27,000/- was paid

to said Viren Veera and thus, shop no.5 also came

in possession of the applicant and she was carrying

on business from shop no.5 also since 24^th May, 2006.

According to her, respondent no.3 was not doing any

business or work and she was maintaining the whole

family including the respondents. From 14^th March,

2007, respondent nos.1 to 3 began to sit in the

galas no.2 and 5. She objected the same. On 26^th

March, 2007, when she was going to open the shop,

respondent no.3 abused and assaulted her for which

she lodged a report at the police station. On that

day, the respondent no.3 also took forcible

possession of galas no.2 and 5 and tried to remove

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Cri.Appln.No.1111/2009

her from the room in which she was living.

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In view of this circumstance, she filed

Application No.4 of 2007 on 23^rd April, 2007 before

the Judicial Magistrate, First Class, Wai, under

Section 12 of The Protection of Women from Domestic

Violence Act, 2005 ( Domestic Violence Act

in

brief) in respect of Shop No.2 and on 27^th April,

2007, she filed Application No.5 of 2007 under

Section 12 of the Domestic Violence Act before the

JMFC, Wai in respect of shop no.5. The learned

Magistrate called the report from the Protection

Officer under the provisions of the Act. The

evidence was led by both the parties. On the basis

of the material placed before him, the learned

Magistrate passed a common order in Application Nos.

4/2007 and 5/2007 on 23^rd September, 2008 and

directed the respondent nos.1, 2 and 3 to handover

possession of the galas no.2 and 5 to the applicant.

However, the learned Magistrate rejected the prayer

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Cri.Appln.No.1111/2009

of the applicant for compensation.

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Bein