Gujarat High Court
Kishan Mukesh Bhai Dhandhukiya vs State Of Gujarat on 11 September, 2020
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.MA/10212/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10212 of 2020
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KISHAN MUKESH BHAI DHANDHUKIYA
Versus
STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Applicant(s) No. 1
MS.NAMRATA J SHAH(6534) for the Applicant(s) No. 1
MS MAITHILI MEHTA APP (2) for the Respondent(s) No. 1
SHIVAM D PARIKH(9477) for the Respondent(s) No. 2
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 11/09/2020
ORAL ORDER
1. Heard learned advocate for the applicant, learned Additional Public Prosecutor for the respondent No.1 - State and learned advocate for respondent No.2 through Video Conferencing.
2. Considering the short dispute involved as also the settlement between the parties, the matter is taken up for final hearing today.
3. An F.I.R. being C.R.No.I- 23/2019 came to be registered with Bhayavadar Police Station, Rajkot for the offences punishable under Sections 376(2)(n), 366 and 363 of the Indian Penal Code and Section 6 of the POCSO Act.
4. Today original complainant Veljibhai Vishrambhai Vaghediya is present through Video Conferencing and he Page 1 of 6 Downloaded on : Sat Sep 12 01:35:54 IST 2020 R/CR.MA/10212/2020 ORDER has admitted that he has filed the affidavit for grant the prayer made by the applicant. He has submitted that he has no objection if the present application is allowed and the applicant get married with his daughter. It has been affirmed by the respondent No.2 - complainant that the complainant has no grievance against the applicant. He has categorically staged in paras-3 and 4 of the affidavit, which reads as under:-
3. I state that I am willing to get my daughter Hetal get married to the present petitioner as she is six months pregnant through him and without and force or under any influence I and my family have made this decision as my daughter and the present petitioner were in love since three months before we lodged the impugned FIR which we were unaware at the relevant time, but now looking to the present situations as both the families are reuniting we have decided to get them married and there settle this issue.
4. I state that the dispute between the complainant and the applicant is settled amicably and I am satisfied with the said settlement and, since, the dispute is not concerning the public law, the first information report in question may be quashed by this Hon'ble Court. I state that, since the matter is amicably settled between the parties, I am not willing and inclined to prosecute my complaint any further and I am not interested in prosecuting the said first information report against the applicant any further in the court of law. I, therefore, state that I have no objection and I consent to quashing of the said complaint as prayed for by the applicant and/or stay of further proceedings.
5. Learned advocate for the applicant has relied upon the following decisions.
1. Ashish @ Ashiq Dharmsinhbhai Fulbariya (Kharva) Vs. State of Gujarat dated 24.10.2019 rendered in Criminal Misc. Application No.18696 of 2020;
2. Rajeshbhai Keshavbhai Sarla Vs. State of Gujarat dated Page 2 of 6 Downloaded on : Sat Sep 12 01:35:54 IST 2020 R/CR.MA/10212/2020 ORDER 10.08.2018 rendered in Criminal Misc. Application No.5422 of 2018;
3. Jashvantbhai Sardarbhai Pargi Vs. State of Gujarat dated 10.01.2019 rendered in Criminal Misc. Application No.334 of 2019;
4. Vijay Odhabhai Zaverbhai Dharjiya Vs. State of Gujarat dated 29.07.2020 rendered in Criminal Misc. Application No.10347 of 2020;
5. Divyeshbhai Bhimsinhbhai Vala (Koli) Vs. State of Gujarat dated 25.09.2019 rendered in Criminal Misc. Application No.11129 of 2019;
6. Soosaimanikam and others Vs. State through Inspector of Police and others dated 22.01.2020 rendered in Crl.O.P. (MD) No.517 of 2020;
6. The learned advocates for the applicant and respondent No.2 thus, would submit that looking to the nature of allegations against the applicant, even otherwise, no case against the applicant for the offences punishable under Sections 376(2)(n), 366 and 363 of the Indian Penal Code and Section 6 of the POCSO Act. is made out. It was, therefore, urged to quash the complaint and proceedings arising therefrom qua the present applicant.
7. The learned A.P.P. opposed the settlement contending that the offence in question are serious in nature, against the society and are not compoundable. She strongly objected in allowing the present application on the ground that the victim is minor one and, therefore, though there is settlement between the parties, the application may be rejected.
8. In rejoinder, learned advocate for the applicant submitted that in various decisions of this Court, the victim Page 3 of 6 Downloaded on : Sat Sep 12 01:35:54 IST 2020 R/CR.MA/10212/2020 ORDER was minor, this Court has allowed such application as there was amicable settlement arrived at between the parties. He has urged to allow the present application.
9. In the case of Gian Singh V/s. State of Punjab and another reported in (2012)10 SCC 303, the Hon'ble Apex Court, in para 61, laid-down the following proposition of law while distinguishing Section 482 from Section 320 of the Code of Criminal Procedure. The Hon'ble Apex provided the illustrative category of cases suitable for settlement and it was observed that heinous crimes like robbery, dacoity and rape etc. cannot be settled and suitability of the cases for settlement will depend upon the facts of each individual case. It was held that even the cases which are not compoundable under Section 320 of the Code of Criminal Procedure, can be settled under Section 482 of the Code, if the High Court finds the element of settlement. Para 61 reads as under:-
"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and Page 4 of 6 Downloaded on : Sat Sep 12 01:35:54 IST 2020 R/CR.MA/10212/2020 ORDER gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victims family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
10. Considering the ratio as above, submissions of the learned A.P.P. cannot be countenanced. Mere invocation of the provisions for serious offences would not necessarily lead to inference of commission of such offences. It is noticed that in the complaint, half-hearted allegation Page 5 of 6 Downloaded on : Sat Sep 12 01:35:54 IST 2020 R/CR.MA/10212/2020 ORDER against the applicant is made and further, when respondent No.2 - complainant has made intention of not supporting the prosecution case, clear by filing an affidavit, chances of prosecution succeeding against the applicant are very bleak. Only achievement in such a trial would be wastage of public time, money and energy. Under the circumstances, it is deemed appropriate to acknowledge the settlement placed on record by way of affidavit by respondent No.2 - complainant.
11. Learned advocates for the private parties jointly submitted that the parties have decided that the applicant and the daughter of the complainant will be married.
12. However, it is pertinent to note that even if the parties have decided to perform marriage of the victim and the applicant, they should abide by legal provisions relating to minimum age of the concerned applicant and the victim. There should not be any breach of law which may include restriction of a child marriage.
13. Accordingly, in view of the settlement, the complaint and all connected proceedings arising therefrom, qua the present applicant, are quashed. Rule is made absolute with no order as to costs. Direct service is permitted.
(DR. A. P. THAKER, J) VR PANCHAL / KUMAR ALOK Page 6 of 6 Downloaded on : Sat Sep 12 01:35:54 IST 2020