Janki Chintan Shah vs State Of Gujarat & on 4 December, 2014

[Cites 12, Cited by 60]

Gujarat High Court

Janki Chintan Shah vs State Of Gujarat & on 4 December, 2014

Bench: R.M.Chhaya

      R/CR.MA/9740/2014                                    CAV JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                          FIR/ORDER) NO. 9740 of 2014

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE R.M.CHHAYA
===========================================================
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, 1950 or any
     order made thereunder ?

5    Whether it is to be circulated to the civil judge ?

================================================================
                     JANKI CHINTAN SHAH....Applicant(s)
                                 Versus
                   STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MR HJ DHOLAKIA, ADVOCATE for the Applicant(s) No. 1
MR ALKESH N SHAH, APP for the Respondent(s) No. 1
MR RUTURAJ NANAVATI, ADVOCATE for the Respondent(s) No. 2
===========================================================
        CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA

                               Date : 04/12/2014


                                CAV JUDGMENT

1. Heard Mr.Yatin Oza, learned Senior Counsel with Mr.H.J.Dholakia, learned counsel for the petitioner, Mr.Alkesh N. Shah, learned Additional Public Page 1 of 11 R/CR.MA/9740/2014 CAV JUDGMENT Prosecutor for the respondentState and Mr.Ruturaj Nanavati, learned counsel for respondent No.2First Informant.

2. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting aside the impugned FIR being C.R.No.I361 of 2013 registered with Naranpura Police Station, Ahmedabad, for the offences punishable under Sections 307, 120(b) of the Indian Penal Code, Section 25(1)(b)(a) of the Arms Act and Section 135(1) of the Gujarat Police Act.

3. Mr.Oza, learned Senior counsel for the petitioner submitted that this Court vide order dated 03.07.2014 admitted the matter and passed the following order: "Heard Mr. Yatin Oza, learned Senior Advocate with Mr. H.J. Dholakia for the applicant, Mr. L.R. Pujari, learned APP for respondent No.1 - State and Mr. R.H. Nanavati, learned advocate for respondent No.2.

Rule returnable on 21.7.2014. Mr. L.R. Pujari, learned APP waives service of Rule on behalf of respondent No.1

- State and Mr. R.H. Nanavati, learned advocate waives service of Rule on behalf of respondent No.2. Adinterim relief in terms of Para 10(C) qua the applicant only. It is made clear that this order would apply only to the present applicant."

4. Thereafter, the matter was heard on 23.07.2014 and the following order was passed.

"1. Mr.Alkesh N. Shah, learned Additional Public Prosecutor tenders a copy of the Affidavit-in-reply filed by Senior Police Inspector, Naranpura Police Station, Ahmedabad and the same is taken on record.

2. Mr.Yatin Oza, learned Senior Counsel appearing with Mr.H.J.Dholakia, learned counsel for the applicant i.e. wife of respondent No.2-first informant asserted that the applicant and respondent No.2-First informant being husband and wife have amicably resolved the issue. Mr.Oza, learned Senior Counsel has relied upon the judgment of this Court rendered in Criminal Misc. Application No.1015 Page 2 of 11 R/CR.MA/9740/2014 CAV JUDGMENT of 2014 as well as the Apex Court in the case of Narinder Singh & Ors. Vs. State of Punjab & Anr., 2014 (2) Crimes 67 (SC).

3. Learned counsel for respondent No.2-First informant has identified respondent No.2, who is personally present in the Court. A copy of the driving license of respondent No.2-First informant is permitted to be produced on record to establish the identity of respondent No.2.

4. Respondent No.2-First Informant viz. Mr.Chintan Rajendrabhai Shah has declared before this Court that he has amicably resolved the issue with the applicant and he stays as on date with the present applicant.

5. Pursuant to the affidavit tendered by learned Additional Public Prosecutor, response, if any, be filed by the applicant on or before the next date of hearing. S.O to 05th August, 2014

5. Respondent No.1State has filed an affidavit. At the outset, it may be noted that the applicant is the wife of respondent No.2First Informant and are staying together as husband and wife and are parents of two minor children.

6. Mr.Oza, learned Senior Counsel for the petitioner has taken this Court to the factual matrix arising out of this application and submitted that considering the relationship between the applicant and respondent No.2, parties have amicably resolved the issue and as such no dispute remains between the parties. It was further submitted that the applicant was not named in the FIR at all and, on the contrary, in the FIR itself it is stated that the applicant was at home when the incident occurred. Mr.Oza, relying upon the affidavit filed by respondent No.2First Informant in Criminal Misc. Application No.8181 of 2014, which was filed by the applicant for regular bail, wherein it was declared by respondent No.2First Informant that it was the applicant, who immediately took him to the Page 3 of 11 R/CR.MA/9740/2014 CAV JUDGMENT hospital and the applicant in fact, informed all his relatives including his father. Mr.Oza further submitted that respondent No.2 has declared that because the applicant managed medical assistance immediately, respondent No.2First Informant has survived. Mr.Oza, reiterated that today the applicant and respondent No.2 are staying happily as husband and wife and are parents of two minor children.

7. Mr.Oza, learned Senior Counsel for the petitioner relying upon the judgment rendered in the case of Gian Singh Vs. State of Punjab & Anr., reported in (2012) 10 SCC 303 and Narinder Singh and Ors. Vs. State of Punjab & Anr., reported in 2014(6) SCC 466, submitted that in view of the fact that the parties, who are husband and wife have buried the hatchet at the threshold of the investigation, any further continuance of the criminal proceedings pursuant to the impugned FIR would result into the harassment to the parties, who otherwise stay together as husband and wife. Mr.Oza, further relied upon the judgment of the Apex Court in the case of Yogendra Yadav & Ors. Vs. The State of Jharkhand & Anr., passed in Criminal Appeal No.1205 of 2014 and has submitted that in view of personal relation between the parties, any further continuance of the proceedings would amount to abuse of process of law and the trial would be futile. Therefore, this is a fit case wherein this Court would be pleased to exercise its inherent powers under Section 482 of the Code and quash the complaint.

Page 4 of 11 R/CR.MA/9740/2014 CAV JUDGMENT

8. Mr.Ruturaj Nanavati, learned counsel for respondent No.2First Informant has reiterated the contentions as raised by learned counsel for the applicant. Mr.Nanavati, has drawn the attention of this Court to the affidavit filed by respondent No.2, wherein it is stated that the parties have amicably resolved the issue and are living happily as husband and wife. Therefore, the present petition may kindly be allowed as prayed for.

9. Per contra, Mr.Alkesh N. Shah, learned Additional Public Prosecutor for the respondentState has candidly submitted that the chargesheet is already filed against other accused. It was contended that the applicant herself is behind the entire incident and there was preplanned conspiracy. It was further contended that there was intention and knowledge on part of the applicant and several time the applicant has remained in contact with the main accused, however, ultimately, respondent No.2 is saved. It was further contended that both the judgments, which relied upon by learned Senior Counsel for the applicant would not apply to the present facts and circumstances and, therefore, the present application be rejected.

10. Learned Additional Public Prosecutor has also relied upon the affidavit filed by the respondent State and has submitted that in light of the averments made in this affidavit, this is not a fit case, wherein this Court would be pleased to exercise its Page 5 of 11 R/CR.MA/9740/2014 CAV JUDGMENT inherent powers under Section 482 of the Code.

No other and further submissions are made by learned counsel for the respective parties.

11. Before adverting to the submissions made by learned counsel for the parties, it may be noted that the present applicant was not arraigned as an accused, but was made a witness and thereafter, the applicant came to be arraigned as an accused. This Court (Coram:A.J.Desai, J.) while granting the bail to the applicant vide order dated 12.06.2014 passed in Criminal Misc. Application No.8184 of 2014 has also considered the fact that the dispute has been resolved between the applicant and respondent No.2. It is an admitted position that the applicant and respondent No.2 are husband and wife and are staying together today. It may further be noted that on 23.07.2014, respondent No.2First Informant personally remained present before this Court and has declared before this Court that he has amicably resolved the issue with the applicant and as on date both of them stay together as husband and wife.

12. Learned Additional Public Prosecutor has further pointed out that the applicant was in contact with the main accused and the offence was not private in nature and it would seriously affect the society. Learned APP has further relied upon the fact that there was some dispute between the applicant and respondent No.2 and because of which, the applicant conspired with other accused and gave shape to the present incident, Page 6 of 11 R/CR.MA/9740/2014 CAV JUDGMENT whereby respondent No.2 was attacked. However, respondent No.2 has survived.

13. As against this, respondent No.2First Informant himself has filed an affidavit denying the allegations levelled by the Investigating Officer before this Court. Further the fact remains that the applicant and respondent No.2 are wife and husband and are staying together as happy family with two minor children. Though the chargesheet is filed against the other accused, no chargesheet is filed against the present applicant. Respondent No.2 has in unequivocal terms declared before this Court that they have buried the hatchet.

14. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of Narinder Singh and Ohters. Vs. State of Punjab and Another (2014(6) SCC 466), wherein the Apex Court while considering the timing of settlement has observed thus: "27. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173,Cr.P.C. is also placed before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement Page 7 of 11 R/CR.MA/9740/2014 CAV JUDGMENT between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case."

15. Similarly the Apex Court in the case of Yogendra Yadav & Ors. Vs. The State of Jharkhand & Anr., in Criminal Appeal No.1205 of 2014 has observed thus: "4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 of the IPC which are noncompoundable. Needless to say that offences which are noncompoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab[1]). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace.

5. In Gian Singh this Court has observed that where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands Page 8 of 11 R/CR.MA/9740/2014 CAV JUDGMENT that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. Needless to say that the above observations are applicable to this Court also.

6. Learned counsel for the parties have requested this Court that the impugned order be set aside as the High Court has not noticed the correct position in law in regard to quashing of criminal proceedings when there is a compromise. Affidavit has been filed in this Court by complainantAnil Mandal, who is respondent No. 2 herein. In the affidavit he has stated that a compromise petition has been filed in the lower court. It is further stated that he and the appellants are neighbours, that there is harmonious relationship between the two sides and that they are living peacefully. He has further stated that he does not want to contest the present appeal and he has no grievance against the appellants. Learned counsel for the parties have confirmed that the disputes between the parties are settled; that parties are abiding by the compromise deed and living peacefully. They have urged that in the circumstances pending proceedings be quashed. State of Jharkhand has further filed an affidavit opposing the compromise. The affidavit does not persuade us to reject the prayer made by the appellant and the second respondent for quashing of the proceedings ."

16. In the instant case, respondent No.2 himself has declared before this Court that the parties have amicably resolved the dispute, who are the husband and wife. In addition to that, it is also declared before this Court by respondent No.2 that the applicant took him to hospital and managed medical assistance, because of which, the life of respondent No.2 is saved. In light of these facts and circumstances arising in this petition, more particularly considering the fact that the applicant and respondent No.2 are husband and wife and because of compromise between the parties, two minor daughters have united together at the stage when the investigation qua present applicant is not yet over, neither trial has taken even considering the crucial aspect of time when the compromise is arrived at between the applicant and Page 9 of 11 R/CR.MA/9740/2014 CAV JUDGMENT respondent No.2 and considering the judgments of the Apex Court rendered in the cases of Gian Singh Vs. State of Punjab & Anr., reported in (2012) 10 SCC 303, Narinder Singh and Ors. Vs. State of Punjab & Anr., reported in 2014(6) SCC 466, Yogendra Yadav (supra), Madan Mohan Abbot Vs. State of Punjab, reported in (2008) 4 SCC 582, Nikhil Merchant Vs. Central Bureau of Investigation & Anr., reported in 2009 (1) GLH 31, Manoj Sharma Vs. State & Ors., reported in 2009 (1) GLH 190 and Dimpey Gujral Vs. Union Territory, reported in AIR 2013 SC 518, any further continuance of the proceedings pursuant to the impugned FIR would not only cause harassment to the parties but would fracture the relations and united family would breakdown and children would be badly affected.

17. Considering the affidavits filed by the applicant and respondent No.2 as well as the statement made before this Court and as the parties buried the hatchet, more particularly considering the personal relationship, trial would be futile and any further continuance of the proceedings would amount to abuse of process of Court and law. In facts of this case, therefore, in order to secure the ends of justice, the impugned FIR qua present petitioner deserves to be quashed.

18. The objections raised by learned Additional Public Prosecutor to the effect that it is a serious crime against the society. However, the facts and Page 10 of 11 R/CR.MA/9740/2014 CAV JUDGMENT circumstances arising in this application qua present applicant clearly shows that the parties have buried the hatchet and are staying happily as husband and wife, the contentions raised by learned Additional Public Prosecutor deserves to be negatived.

19. Resultantly, present application is allowed. Impugned FIR bearing C.R.No.I361 of 2013 registered with Naranpura Police Station, Ahmedabad, filed against the present applicant is hereby quashed and set aside qua the petitioner. Consequently, any other proceedings, if any, arising out of the aforesaid FIR qua the petitioner, are also quashed and set aside. It is however, clarified that this judgment would apply only to the present applicant. Rule is made absolute accordingly. Direct Service is permitted.

(R.M.CHHAYA, J.) Suchit Page 11 of 11

Unlock Advanced Research with PRISMAI

Gujarat High Court