Gujarat High Court
Nazimuddin @ Nazim Shamshuddin Shaikh vs State Of Gujarat on 24 December, 2020
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.MA/18392/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18392 of 2020
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NAZIMUDDIN @ NAZIM SHAMSHUDDIN SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
MR SAURABH CHANDE WITH ANKIT BACHANI for the Respondent No. 2
MS MOXA THAKKER APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 24/12/2020
ORAL ORDER
1. Heard Mr.Vaibhav Sheth, learned advocate for the petitioner, Ms.Moxa Thakker, learned APP for the respondent - State and Ms.Saurabh Chande, learned advocate with Mr.Ankit Bachani, learned advocate for respondent no.2 through video conferencing.
2. RULE. Ms.Moxa Thakker, learned APP waives service of notice of rule for the respondent - State and Ms.Saurabh Chande, learned advocate with Mr.Ankit Bachani, learned advocate waives service of notice of rule for respondent no.2.
3. By invoking the provisions of Section 482 of the Criminal Procedure Code, 1973, the petitioner has sought relief to quash and set aside the impugned FIR being C.R.No. I - 505/2019 registered with Salabatpura Police Station, District: Surat dated 22.11.2019 for the offence punishable under Sections 307, 326(a), 506(2) etc. of the Indian Penal Code.
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4. An affidavit-in-reply has been filed by the complainant - Gulnar w/o. Nazim Samshuddin Shaikh wherein she has stated in paras-1 and 2 as under:
"1. I respectfully state that I am respondent no.2 and the original complainant and a victim who registered an FIR dated 22.11.2019 vide C.R.No.I - 505/2019 with Salabatpura Police Station, wherein the investigation officer laid a charge sheet registered as Criminal Case No.31/2020 for the offences alleged to have been committed and punishable under sections 307, 326(A) and 506(2) of IPC pending before the Court of Learned 9th Additional Sessions Judge, Surat and the petitioner is apprehentelded and he is in judicial custody till date and the same is pending trial.
2. I respectfully say that the petitioner and myself have, with the intervention of the elderly family members and friends of both the petitioners and respondent no.2, settled our dispute amicably and peacefully and the impugned FIR was filed due to hot haste and completely out of misunderstanding as the petitioner use to doubt the character of respondent no.2 and during the incidence which took place in the house of respondent no.2, the acide was already lying in the house and as both the peitioner and respndent no.2 started shouting on each other, the container filled with acide was out of accident touched the body of respondent no.2 and the respondent no.2 got superficial injuries and now she is out f danger. Moreover, the petitioner and respondent no.2 have a minor child out of their wedlock and after divorcing each other and after passing of long time which has worked as healing factor, the petitioner and respondent no.2 have decided to remarry eah other and lead a peaceful and happy life and thus, the entire dispute is now amicably settled by and between the petitioner and the respondent no.2 on their own will and volition without any force, coersion or undue influence and no dispute of any nature remains anymore. I further say that I have no objection and give my free consent for quashment of the impugned criminal proceedings and all consequent proceedings arising there from against the petitioner and thus, the parties jointly request this Hon'ble Court to kindly exercise the discretion in favour of the peitioner by quashing the criminal proceedings in view of the amicable settlement arrived at by and between the parties in the interest of justice since the continuation of crimina proceedings would be a futle exercise and would further cause harassment and humiliation to all concerned and no fruitful purpose would be served by continuing the same."Page 2 of 6 Downloaded on : Fri Dec 25 11:50:38 IST 2020
R/CR.MA/18392/2020 ORDER
5. Mr.Vaibhav Sheth, learned advocate for the petitioner has submitted that the offence registered against the petitioner is under Sections 307, 326(a), 506(2) etc. of the Indian Penal Code. He has submitted that the settlement has been arrived at between the parties. He has prayed to allow the present petition.
6. Ms.Saurabh Chande, learned advocate with Mr.Ankit Bachani, learned advocate for respondent no.2 has supported the submissions of the learned advocate for the petitioner.
7. Per contra, Ms.Moxa Thakker, learned advocate for the respondent - State has vehemently objected and submitted that considering the seriousness of the offence, no order may be passed at present in favour of the petitioner. She has also submitted that as the petitioner is in jail, the compromise might have been arrived at and he may commit such offence again against the complainant. She has further submitted that as per the certificate at page 27, the complainant sustained 30% superficial burn injuries and, therefore, this petition may not be allowed.
8. 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 Page 3 of 6 Downloaded on : Fri Dec 25 11:50:38 IST 2020 R/CR.MA/18392/2020 ORDER 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 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 Page 4 of 6 Downloaded on : Fri Dec 25 11:50:38 IST 2020 R/CR.MA/18392/2020 ORDER answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
9. Considering the affidavit filed by the original complainant, it appears that the complainant - cum - victim has settled the dispute with the accused, who is her husband and, therefore, she might not support the version of the prosecution regarding the acid attack. The complainant has specifically stated that the container filled with acide was out of accident which touched her body due to which she got superficial injuries and now she is out of danger. Thus, the victim got 30% superficial injuries due to acid, which s explained by the complainant herself in her affidavit. Even during the inquiry by this Court, she has specifically stated the same facts which are narrated in the affidavit.
10. Now, considering the facts and circumstsances of the case, which is peculiar in nature, this Court is of the considered opinion that the dispute is settled and the complainant is to support the contents of the petition and the FIR, the sattlement is required to be acknowledged and the petition is required to be allowed. No useful purpose would be served to continue with the proceedings and if continued, it would be nothing but a futile exercise.
11. Accordingly, the settlement is acknowledged and the FIR being C.R.No. I - 505/2019 registered with Salabatpura Police Station, District: Surat dated 22.11.2019 for the offence punishable under Sections 307, 326(a), 506(2) etc. of the Indian Penal Code and all connected proceedings arising therefrom, qua the present petitioner, are quashed. The petitioner is ordered to Page 5 of 6 Downloaded on : Fri Dec 25 11:50:38 IST 2020 R/CR.MA/18392/2020 ORDER be set at liberty forthwith if not required in any other case.
12. The petition stands disposed of. Rule is made absolute accordingly. Direct service through fax, email and/or any other suitable electronic mode is permitted. The necessary writ be sent all the concerned.
(DR. A. P. THAKER, J) VARSHA DESAI Page 6 of 6 Downloaded on : Fri Dec 25 11:50:38 IST 2020