Gujarat High Court
Jigneshbhai @ Tinabhai Ishwarbhai ... vs State Of Gujarat & on 6 May, 2015
Author: A.J.Desai
Bench: A.J.Desai
R/SCR.A/2626/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2626 of 2015
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JIGNESHBHAI @ TINABHAI ISHWARBHAI PARMAR....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DHARMESH R PATEL, ADVOCATE for the Applicant(s) No. 1
MR N.J.SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 06/05/2015
ORAL ORDER
1. Mr.Aakash R. Patel, learned advocate states that he has received instruction to appear on behalf of respondent No.2 original complainant and he shall file his appearance within a period of one week from today. He tendered affidavit of the prosecutrix, which is taken on record. He has also identified the prosecutrix, who is present in the Court along with her husband Arvindbhai Shivabhai Parmar.
2. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
3. Rule. Mr.N.J.Shah, learned APP waives service of Rule on behalf respondent No.1 State of Gujarat and Mr.Aakash R. Patel, learned advocate waives service of Rule on behalf of respondent No. 2 original complainant.
4. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973, the applicants original accused Page 1 of 5 R/SCR.A/2626/2015 ORDER persons, have prayed for quashing of the FIR registered at CR No. I 25 of 2015 dated 23.03.2015 before Modasa Rural Police Station, District Arvalli filed against him for the offenses punishable under Sections 376(e), 506 and 511 of the IPC on the ground that the matter is of private nature and at the intervention of respected members of the society the dispute has already been settled between the parties.
5. Mr. Dharmesh R. Patel, learned advocate for the applicant would submit that the matter is of private nature and at the intervention of respected members of the society the dispute has already been settled between the parties and it would be futile exercise if the applicants are subjected to trial, and therefore, the FIR and the subsequent proceedings thereto, if any, to be quashed and set aside. He placed reliance on the decision of the Hon'ble Apex Court in case of Gian Singh versus State of Punjab & Anr. reported in 2012(10)SCC 303 as well as in the case of Jitendra Raghuvanshi & Ors. V/s. Babita Raghuvanshi & Anr. reported in [2013(3)] 54 (3) G.L.R 1875 and submitted that since the matter is settled and all the grievances raised in the FIR do not exist, there is no need to proceed further with the trial with regard to the FIR.
6. Heard Mr.Aakash R. Patel, learned advocate for respondent No. 2.
He would submit that though the petitioner has been charged for the offences punishable under Section 376(e), however, Section 376(e) is wrongly made applicable to the present case and the petitioner has never been convicted in past for the offences punishable under Section 376(e). He would further states that whatever has been mentioned in the affidavit dated 30.04.2015 filed by the prosecutrix are correct. He would further submit that Page 2 of 5 R/SCR.A/2626/2015 ORDER the prosecutrix has no objection, if the FIR and the subsequent proceedings thereto are quashed and set aside.
7. Mr.N.J.Shah, learned APP has opposed this application since the present applicant is facing charge for the offence is registered under Section 376 of the Indian Penal Code, which is non compoundable offence and, therefore, even though compromise have been arrived at between the parties, the FIR cannot be quashed as the said offence is against the public. By relying upon Paragraph - 61 of the judgement delivered in the case of Gian Singh vs. State of Punjab (Supra) learned APP would further submit that in certain heinous crime, the victim and victims family and the offender have settled the dispute, the Court should not exercise the power under Section 482 of the Code. Hence, the petition may be dismissed.
8. On inquiry, Mr.N.J.Shah, learned APP states that the petitioner has never been convicted for the offences punishable under Section 376(e) of the IPC.
9. The affidavit filed by prosecutrix dated 30.04.2015 reads as under:
"I, Jashiben W/o Arvindbhai Shivabhai Parmar, Hindu, Adult, Aged 30 years, Residing at Village Jitpur, Ta. Modasa, District Arvalli, do hereby state on oath as under:
1. That the deponent is the complainant in connection with the complaint being C.R.No. I 25 of 2015 registered with Modasa Rural Police Station under section 376 (E), 506 and 511 of the Indian Penal Code, the respondent No. 2 in present petition most respectfully state that dispute against the present petitioner has been resolve by intervention of the villagers.
2. That the deponent further submits that she does Page 3 of 5 R/SCR.A/2626/2015 ORDER not want to proceed with the complaint and deponent has no objection if the same may be quashed.
3. That the deponent further states that she also does not have any objection with regard to the release of the petitioner from jail as the deponent does not want to pursue complaint."
10. So far as the decision rendered in the case of Gian Singh vs. State of Punjab (Supra) is concerned, the Hon'ble Apex Court has held that in the cases of heinous and serious offences of mental depravity or offences like murder, rape, decoity, etc., the FIR could not be quashed, even though, the victim or victims family and the offender have settled the dispute, However, in the said decision, the Hon'ble Apex Court has held that if the High Court finds that continuance of the trial would be futile exercise and quashment of the FIR would meet the ends of justice, inherent power would be exercised. Gravity of the offence is required to be looked into in the case of quashment of the noncompoundable offence. High Court has to consider the nature and gravity of the crime and its impact on society. On the background of the ratio laid down in the case of Gian Singh vs. State of Punjab (Supra), I have accordingly considered the case on hand. I have perused the papers of FIR and nature and gravity of the offence. Considering the overall facts and circumstances of the case and the affidavit filed by the prosecutrix, the present application requires consideration and the same is allowed. The FIR being CR No. I 25 of 2015 dated 23.03.2015 before Modasa Rural Police Station, District Arvalli filed against him for the offenses punishable under Sections 376(e), 506 and 511 of the IPC along with all the proceedings thereunder, if any, are hereby quashed and set aside qua the applicants. Rule is made absolute accordingly. Direct service is permitted.
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11. Since the FIR itself has been quashed and set aside by this Court, the petitioner, who is in custody, shall be released forthwith, if not required in any other case.
(A.J.DESAI, J.) *Kazi...
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