Gujarat High Court
Girishbhai vs State on 14 July, 2009
Author: Harsha Devani
Bench: Harsha Devani
CR.MA/828820/2008 6/ 6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 8288 of 2008 ========================================= GIRISHBHAI RAJIVBHAI PATEL & 1 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MR VIRAT G POPAT for Applicant(s) : 1 - 2. MR DC SEJPAL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR KANDARP V RANA for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 14/07/2009 ORAL ORDER
Rule.
Mr.D.C.Sejpal, learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent No.1 State of Gujarat and Mr.Kandarp V. Rana, learned advocate waives service of notice of rule on behalf of respondent No.2.
Having regard to the facts of the case and with the consent of the learned advocates for the parties, the matter is taken up for final hearing today.
By this petition under Section 482 of the Code of Criminal Procedure, 1973 (the Code), the applicants have prayed to quash and set aside the order dated 5.5.2008 passed by the learned Chief Judicial Magistrate, Ahmedabad (Rural), below Exhibit-13 in Criminal Case No.1716 of 2006 as well as the proceedings of Criminal Case No.1716 of 2006 pending in the Court of the learned Chief Judicial Magistrate, Ahmedabad (Rural).
The facts of the case stated briefly are that the respondent No.2 herein had lodged the First Information Report in question being Sola Police Station I C.R. No.18/2001 against the present applicants for the offences punishable under Sections 304, 418, 420 read with Section 120-B of the Indian Penal Code and Section 3, 7 and 42 of the Gujarat Ownership of Flats Act, 1973. The applicant moved an application for discharge for the offences under Sections 304 and 120-B IPC. Vide order dated 24.2.2006, the learned Additional Sessions Judge, Ahmedabad (Rural) deleted the charges under Section 304 and 120-B of the IPC. Thereafter, on 22.03.2006, the applicants moved an application for discharge for the offence under Sections 418 and 420 IPC and under Sections 3(2)(1)(ii) 2 and 42 of the Gujarat Ownership of Flats Act, 1973. By the impugned order dated 5.5.2008 passed by the learned Chief Judicial Magistrate, Ahmedabad (Rural), the said application came to be rejected. Being aggrieved, the applicants have moved the present petition seeking the reliefs noted hereinabove.
Heard Mr.Virat G.Popat, learned advocate for the applicants, Mr.D.C.Sejpal, learned Additional Public Prosecutor for the respondent No.1 State of Gujarat and Mr.Kandarp V. Rana, learned advocate for respondent No.2.
On the merits of the case, Mr.Popat, learned advocate for the applicants has submitted that even if the allegations mentioned in the First Information Report and the papers of the chargesheet are accepted to be true in their entirety, no offence, much less the offences punishable under Sections 418 and 420 of the Indian Penal Code and Section 3, 7 and 42 of the Gujarat Ownership of Flats Act, 1973, are made out against the applicants. It is further submitted that, neither in the First Information Report nor in the chargesheet papers, is it averred that, right from the very beginning of the transaction, the applicants had the intention to cheat or defraud the complainant, hence, the charges under Section 418 IPC are required to be quashed. It was submitted that there is no material to show that the building had collapsed on account of poor quality of the material used. It was urged that the building collapsed because of the earthquake which is an act of God and no overt act was attributed to the applicants, hence, the charges under Sections 418 and 420 of the Indian Penal Code and Section 3(2)(c)(d), 7(1)(i)(ii) and 42 of the Gujarat Ownership of Flats Act, 1973 for the contravention of Sections 3 and 7 of the Gujarat Ownership of Flats Act, 1973, are not made out against the applicants. The learned advocate has made various submissions on the merits of the case, however, in view of what is stated hereinafter, it is not necessary to re-produce the same or to deal with the same at length.
In Ground (B) of Paragraph No.3 of the petition, it has been stated that, after the earthquake, the apartments are reconstructed at the cost of the petitioners and the affected members and relatives of the persons who have died in the unfortunate incident have been given a declaration before this Court and the learned Magistrate to the effect that they have no grievance against the petitioners. It is, accordingly, urged that if the trial is allowed to proceed against the petitioners, the same would amount to abuse of process of law. It is, accordingly, urged that the first information report in question be quashed, in the interest of justice.
Mr.Kandarp Rana, learned advocate for the respondent No.2 original complainant has reiterated what is stated by the learned advocate for the applicants that the parties have amicably settled the matter between them, pursuant to which the respondent No.2 is no longer desirous of prosecuting the petitioners. The learned advocate for the applicants as well as respondent No.2 have jointly submitted that the First Information Report in question be quashed, in the interest of justice.
This Court has also heard Mr.D.C.Sejpal, learned Additional Public Prosecutor for the respondent No.1 State of Gujarat.
This Court has considered the submissions advanced by the learned advocates for the parties and has perused the material on record. Apart from the averments made in Ground (B) of Paragraph No.3 of the petition as noted hereinabove, the applicants have annexed the affidavits of the complainant as well as other witnesses, along with the present petition, wherein it is stated that the applicant and Virendra Ravjibhai Patel had in due compliance with the undertaking given by them constructed their flats and had paid compensation of Rs.75,000/- to the relatives of each deceased person, and that they are fully satisfied by their actions and have no dispute with them. That they are no longer interested in prosecuting Criminal Case No.1716/2006 against them. It is also categorically stated that they have no objection if the applicant and Virendra Patel are discharged.
The Supreme Court in the case of State of Karnataka v. L.Muniswamy and others, (1977)2 SCC 699, while considering the scope of inherent power of quashing under Section 482 of the Code, has held that, in the exercise of this wholesome power, the High Court is entitled to quash the proceedings if it comes to the conclusion that the ends of justice so require.
Applying the principles laid down in the decision cited hereinabove to the facts of the present case, considering the fact that the complainant has stated on oath that the applicant has duly compiled with the undertaking given by him in the proceedings of the bail application preferred by him before this Court. That he is fully satisfied with the action of the applicant and is no longer desirous of prosecuting him. The other affected members have also have made statements on oath along similar lines. In the circumstances, even if the trial is permitted to continue, the same cannot result in conviction as the main witnesses would not support the case of the prosecution. Besides, when the parties have amicably settled the matter and the grievances of the complainant and other affected persons no longer survive, continuation of the proceedings would amount to an abuse of process of law. In the circumstances, this is a fit case for exercise of powers under Section 482 of the code.
In the result, the petition succeeds and is, accordingly, allowed. The proceedings of Criminal Case No.1716 of 2006 pending in the Court of the learned Chief Judicial Magistrate, Ahmedabad (Rural) and the order below Exhibit-13 passed by the learned Chief Judicial Magistrate, Ahmedabad (Rural), dated 5.5.2008, are hereby quashed qua the present applicants. Rule is made absolute accordingly.
[HARSHA DEVANI, J.] parmar*