Gujarat High Court
Habibbhai Alias Kamabhai Motibhai Sama ... vs State Of Gujarat & on 29 June, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
R/CR.MA/11962/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 11962 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
HABIBBHAI ALIAS KAMABHAI MOTIBHAI SAMA & 9....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR TUSHAR L SHETH, ADVOCATE for the Applicant(s) No. 1 - 10
MS CHETNA M SHAH, ADDL. PUBLIC PROSECUTOR for Respondent(s) No. 1
MR TEJAS M BAROT, ADVOCATE for Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 29/06/2015
ORAL JUDGMENT
1. Leave to amend the causetitle of the Page 1 of 18 R/CR.MA/11962/2015 JUDGMENT application, in order to reflect the correct name of applicant No.2, is granted. The necessary amendment be carried out forthwith.
2. Rule. Ms.Chetna M.Shah, learned Additional Public Prosecutor, waives service of notice of Rule for respondent No.1. Mr.Tejas M.Barot, learned advocate, waives service of notice of Rule for respondent No.2 (first informant). Considering the facts and circumstances in which the matter arises, it is being heard and decided finally, at this stage, with the consent of the learned counsel for the respective parties.
3. This application under Section 482 of the Code of Criminal Procedure, 1973 ("the Code") has been preferred by the applicants for quashing and setting aside the FIR, being I C.R.No.39/2015, registered with Lalpur Police Station, District: Jamnagar, on 31.05.2015, for the offences punishable under Sections 307, 143, 147, 148, 149, 323, 325, 337, and 504 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act, and to release the Page 2 of 18 R/CR.MA/11962/2015 JUDGMENT applicants (ten in number) from the District Jail, Jamnagar.
4. The case of the prosecution, is as follows:
The applicants and respondent No.2 (first informant) are inhabitants of Lalpur Village in District Jamnagar. Applicant No.1 and respondent No.2 (first informant) had certain differences in respect of a lease in connection with Survey No.37 Paiki, which is a Kharaba land. On the day of the incident, an altercation and fight had taken place between the parties. The incident took place between persons of two communities to which the applicants and respondent No.2 respectively belong. Both the parties belong to, and live in, the same village. During the incident, persons from both parties sustained minor injuries. The injured persons in the present case are respondent No.2 (first informant) and fifteen others.
5. A crosspetition, being Criminal Misc.
Application No.11959 of 2015 has been filed by respondent No.2 herein and others, inter alia Page 3 of 18 R/CR.MA/11962/2015 JUDGMENT with a prayer to quash and set aside the FIR, being IC.R.No.38 of 2015, registered with Lalpur Police Station, District: Jamnagar, for offences punishable under Sections 307, 143, 147, 148, 149, 323, 325, 337 and 120B of the Indian Penal Code and Section 135(1) of the Gujarat Police Act, and to release them from District Jail, Jamnagar. Applicant No.1 herein is respondent No.2 (first informant) in the said application.
6. It is the case of the applicants before this Court that the matter has now been amicably settled between them and the first informant and the injured persons from the other community and affidavits to this effect have been filed by respondent No.2 and the injured persons, which are on the record of the application at AnnexureC, collectively. Under the circumstances a prayer is made to quash and set aside the FIR in question, on the basis of the settlement arrived at between the parties.
7. In support of his submissions, the learned Page 4 of 18 R/CR.MA/11962/2015 JUDGMENT advocate for the applicants has submitted that this Court may exercise the inherent power under Section 482 of the Code in order to quash the complaint with regard to noncompoundable offences, such as Section 307 of the Indian Penal Code, in view of the settlement between the parties.
8. He has placed reliance upon the judgments of the Supreme Court in the cases of Madan Mohan Abbot v. State of Punjab reported in (2008)4 SCC 582 and Gian Singh v. State of Punjab And Another reported in (2012)10 SCC 303.
9. It is further submitted that insofar as the offence under Section 307 of the Indian Penal Code is concerned, the Supreme Court, in Narinder Singh And Others v. State of Punjab And Another - (2014)6 SCC 466, has stated that if the injuries sustained by the parties are not grievous, and taking into consideration the other hard realities of the matter, the power under Section 482 of the Code can be exercised in appropriate cases, to quash the FIR, on the Page 5 of 18 R/CR.MA/11962/2015 JUDGMENT basis of a compromise between the parties.
10. It is submitted that in the present case, the injured persons have not received grievous injuries and have stated so, in their affidavits. They have further stated that the parties have settled the disputes between them and as they belong to the same village, they have decided to live in peace, harmony and love, hereafter. It is, therefore submitted that in this view of the matter, the prayers made in the application be granted.
11. Ms.Chetna M.Shah, learned Additional Public Prosecutor for respondent No.1, has submitted that the offence under Section 307 of the Indian Penal Code is not only an offence against an individual but it is an offence against society at large. Keeping this aspect in view, the application may be rejected.
12. Mr.Tejas M.Barot, learned advocate for respondent No.2 (first informant), has submitted that in view of the fact that the dispute has been amicably settled between the applicants and Page 6 of 18 R/CR.MA/11962/2015 JUDGMENT the first informant and other injured persons, and as no grievances remain between the parties, the interest of justice would be met if the compliant is quashed. It is further submitted that none of the injured persons have received grievous injuries. The parties reside in the same village and it would be in the interest of peace and harmony if the prayers made in the application are granted.
13. This Court has heard learned counsel for the respective parties and has taken into consideration the averments made in the application, as well as the affidavits sworn by all the injured persons.
14. A perusal of the above material on record reveals that the injured persons have all stated that they have received minor, or superficial, injuries as the case may be, for which they have been hospitalised for a short period of time and later discharged. Thereafter, they were taken into judicial custody.
15. This Court has also perused the medical Page 7 of 18 R/CR.MA/11962/2015 JUDGMENT certificates of each of the injured persons, produced by the learned Additional Public Prosecutor. It is found that none of the injuries are of a serious or grievous nature and nor have they been inflicted at any vital or delicate part of the body. The injuries are mostly in the nature of cuts or fractures. The fact that the injured persons have been discharged from the hospital after only a few days and then taken into judicial custody, itself shows that no serious injuries were sustained by them. All injured persons, except Gagubhai Ramabhai Vasra are discharged, who has also filed an affidavit in this Court, affirmed on 25.06.2015, to the effect that he has received minor injuries on his hands and legs which are not of a serious nature.
16. Respondent No.2 (first informant) is present in person before the Court and has been identified by his learned advocate. He has reiterated the stand taken by him in the affidavit deposed by him and has stated that he and the other injured persons have no objection to the quashing of the Page 8 of 18 R/CR.MA/11962/2015 JUDGMENT criminal proceedings in view of the settlement between the parties.
17. Though it cannot be disputed that an attempt to take the life of a person is a heinous crime against society, however, as stated by the Supreme Court in Narinder Singh And Others v. State of Punjab And Another (supra), the Court cannot be oblivious to the hard realities of the matter.
18. In the present case, the hard reality is that the clash has taken place between two communities residing in the same village. The Court is informed that uptil now, both the communities were living together in peace and harmony. There is no previous history of acrimony or disputes between them. A single incident in respect of a lease of land in connection with Survey No.37 Paiki, which is a Kharaba land, gave rise to an altercation, which snowballed into a fight and clash between two communities, leading to the registration of the FIR in question.
Page 9 of 18
R/CR.MA/11962/2015 JUDGMENT
19. It cannot be ignored that members from both the communities, that is the applicants and the first informant and his party, are residents of the same village and would continue to live together. While deciding whether the criminal proceedings ought to be quashed on the basis of the settlement between the parties, the Court would have to take into consideration the interest of society at large and the larger public interest. No doubt, the offence of Section 307 of the Indian Penal Code has been registered against the applicants. However, as seen earlier, the injuries sustained by the injured persons are not of a serious nature. The dispute that has arisen due to a minor incident and a fight between two parties took the form of a communal clash. Any decision taken by the Court would be dictated by the consideration that peace, harmony and feelings of brotherhood should prevail between the warring factions. With this end in mind, which would benefit society at large and the inhabitants of Lalpur Village, in particular, this Court is of the Page 10 of 18 R/CR.MA/11962/2015 JUDGMENT view that the FIR in question ought to be quashed, taking into consideration the amicable settlement of the dispute between the parties and their desire to live together in peace and harmony. This situation, in the view of the Court, would benefit society more than the reverse, as not to accept the compromise may lead to hard feelings between the communities which may spark into a conflagration later on. In view of the fact that this Court does not find any material on record to suggest that any serious or grave injuries have been inflicted and as it would be in the interest of society at large to accept the compromise between the parties, especially when an undertaking has been made in the affidavits filed before this Court, to the effect that the parties would live in peace, harmony and love henceforth, the present is a fit case for the exercise of power under Section 482 of the Code, by accepting the plea of the applicants.
20. The view of this Court is fortified by the principles of law enunciated by the Supreme Page 11 of 18 R/CR.MA/11962/2015 JUDGMENT Court in Narinder Singh And Others v. State of Punjab And Another (supra), wherein, the Supreme Court has held:
"26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/chargesheet incorporates the provision of Section 307, IPC would not, by itself, be a ground to reject the petition under Section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong Page 12 of 18 R/CR.MA/11962/2015 JUDGMENT possibility of proving the charge under Section 307, IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307, IPC were unnecessarily included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.
... ... ... ...
29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code.
No doubt, under Section 482 of the Code, the High Court has inherent power to quash the Page 13 of 18 R/CR.MA/11962/2015 JUDGMENT criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
29.3 Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and Page 14 of 18 R/CR.MA/11962/2015 JUDGMENT the offender.
29.4 On the other, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
29.6 Offences under Section 307, IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307, IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307, IPC is there for the sake of it Page 15 of 18 R/CR.MA/11962/2015 JUDGMENT or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307, IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship...."
(emphasis supplied)
21. For the aforestated reasons and guided by the principles of law enunciated by the Supreme Court, as applicable to the facts of the present Page 16 of 18 R/CR.MA/11962/2015 JUDGMENT case, in the view of this Court, it would be in furtherance of securing the ends of justice to exercise the power under Section 482 of the Code to quash the FIR and resultant proceedings in view of the settlement between the parties, in the interest of peace, harmony and a better future for both communities living in Lalpur Village. Hence, the following order is passed:
(1) The FIR, being IC.R.No.39/2015, registered with Lalpur Police Station, District: Jamnagar, on 31.05.2015, for the offences punishable under Sections 307, 143, 147, 148, 149, 323, 325, 337, and 504 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act, and all consequential proceedings are hereby quashed and set aside.
(2) As a consequence of the above, the applicants shall be released from the District Jail, Jamnagar, forthwith, on presentation of a copy of this order, if not required in any other case.
22. The application is allowed in the above terms. Rule is made absolute, accordingly.
23. Direct Service is permitted.
Page 17 of 18
R/CR.MA/11962/2015 JUDGMENT
(SMT. ABHILASHA KUMARI, J.)
sunil
Page 18 of 18