Gujarat High Court
Bhanji Magan Dafda vs State Of Gujarat & 2 on 3 March, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/5477/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5477 of 2014
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BHANJI MAGAN DAFDA....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
DARSHAN M VARANDANI, ADVOCATE for the Applicant(s) No. 1
MR SOAHAM M JOSHI, ADVOCATE for the Respondent(s) No. 2
MS.H.B.PUNANI, APP for the Respondent(s) No. 1 & 3
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 03/03/2015
ORAL ORDER
1. RULE. Learned APP Ms.H.B.Punani waives service of notice of Rule on behalf of respondent No.1 and respondent No.3. Learned advocate Shri Soaham Joshi waives service of notice of Rule on behalf of respondent No.2original complainant. Rule is made returnable forthwith. With the consent of learned advocates for the parties, petition is taken up for final hearing.
2. Heard learned advocate Shri Darshan Varandani for the petitioner. Learned advocate for the petitioner submitted that the FIR bearing C.R.No.I75 of 2014 Page 1 of 7 R/SCR.A/5477/2014 ORDER came to be registered with Mahila Police Station (East), Kutch, for the offenses punishable under Sections 323, 504, 498A and 114 of the Indian Penal Code. Learned advocate further submitted that however, after registration of said FIR, now the matter is settled out of the Court with the respondent No.2 and therefore, this Court may not go into the merits of this case. Learned advocate for the petitioner submitted that if the impugned FIR is quashed and set aside, the respondent No.2 has no objection. Learned advocate for the petitioner has relied upon the decision rendered by the Hon'ble Supreme Court in case of B.S.Joshi v. State of Haryana and Others, reported in 2003 (4) SCC 675 and submitted that in view of the decision rendered by the Hon'ble Supreme Court and this Court in similar type of cases on the ground of settlement, the impugned FIR be quashed and set aside.
3. On the other hand, learned advocate Shri Joshi appearing for the respondent No.2 has also submitted that the dispute is settled out of the Court and therefore, the respondent No.2 has filed an affidavit before this Court. The said affidavit is taken on record. Learned advocate has identified the Page 2 of 7 R/SCR.A/5477/2014 ORDER respondent No.2 who is personally present in the Court. Paras 3 to 6 of the affidavit filed by the respondent No.2 reads as under:
"3. I say and submit that the dispute is settled between me and the petitioner herein, in presence of the respected members of the society and the same is adduced in writing. Annexed hereto and marked as Annexure R1 is a copy of the Compromise Deed.
4. I say and submit that pursuant to the said agreement I and the accused herein have mutually agreed to resolve the dispute and I have no objection if this Hon'ble Court quashes the said FIR.
5. I further say and submit that I have entered into the said compromise without being influenced by any persons, family members or relatives.
6. I further say and submit that I have no objection to the quashing of FIR No.75 of 2014 dated 10.10.2014 under sections 323, 504, 498A, and 114 of the Indian Penal Code. I have entered into a compromise in this regard dated 18.02.2015."
Learned advocate for the respondent No.2 therefore submitted that the impugned FIR be quashed and set aside in view of the said settlement.
7. Learned advocate for the petitioner further relied upon the decision of the Hon'ble Supreme Court given in the case of Yogendra Yadav and Others Vs. The Page 3 of 7 R/SCR.A/5477/2014 ORDER State of Jharkhand and Anr., reported in AIR 2014 SC 3055 and the decision of the Hon'ble Supreme Court given in the case of Narindarsingh and others Vs. State of Punjab and others, reported in 2014 (6) SCC
466. Learned advocate for the petitioners further relied upon the orders passed by this Court in similar matters i.e. Criminal Misc. Application No.20710 of 2014, Criminal Misc. Application No.16167 of 2014 and Criminal Misc. Application No.11060 of 2014 and Special Criminal Application No.287 of 2015 and submitted that in all the aforesaid cases, on the ground of settlement between the parties, the Hon'ble Supreme Court and this Court has quashed the FIR, which was filed under Section 307 of the Indian Penal Code.
8. On the other hand, learned APP Ms.Punani submitted that looking to the facts and circumstances of the case, this Court may pass appropriate order in the interest of justice.
9. I have heard learned advocates for the parties and considered the submissions made on their behalf. I have also gone through the record produced before this Page 4 of 7 R/SCR.A/5477/2014 ORDER Court.
10. The Hon'ble Supreme Court in the case of Yogendra Yadav (supra) observed in para No.4 to 7 as under:
"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 non compoundable 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 Page 5 of 7 R/SCR.A/5477/2014 ORDER 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 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 complainant Anil 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 Page 6 of 7 R/SCR.A/5477/2014 ORDER us to reject the prayer made by the appellant and the second respondent for quashing of the proceedings.
7. In view of the compromise and in view of the legal position which we have discussed hereinabove, we set aside the impugned order dated 4/7/2012 and quash the proceedings in S.C.No.9/05 pending on the file of 2nd Additional Sessions Judge, Godda. The appeal is disposed of.
11. In view of the aforesaid, I am of the opinion that, no fruitful purpose would be served in continuation of the Criminal Proceedings in the present case and it will be an exercise in futility. Justice in the case demands that the dispute between the parties be put to an end and peace be restored.
12. In the result, the application is allowed. FIR bearing C.R.No.I75 of 2014 registered with Mahila Police Station (East), Kutch, is ordered to be quashed qua the petitioner. Consequently, all the proceedings pursuant to the said FIR stands terminated. Rule is made absolute. Direct service is permitted.
(VIPUL M. PANCHOLI, J.) ANKIT Page 7 of 7