Gujarat High Court
Bharatbhai Kalidas Rashmiya vs State Of Gujarat on 26 October, 2020
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.MA/13819/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13819 of 2020
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BHARATBHAI KALIDAS RASHMIYA
Versus
STATE OF GUJARAT
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Appearance:
MR MIHIRKUMAR V PATEL(10112) for the Applicant(s) No. 1,2,3,4,5,6,7
MS SHIVANGI J GUPTA(10542) for the Applicant(s) No. 1,2,3,4,5,6,7
MR ADARSHKUMAR D PATEL(10728) for the Respondent(s) No. 2
PRIYANK S DAVE(9465) for the Respondent(s) No. 2
MS MOXA THAKKER 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 : 26/10/2020
ORAL ORDER
1. The present petition has been filed under Section 482 of the Criminal Procedure Code for quashment of the FIR being C.R.No.11192018200372 of 2020 registered with Dhandhuka Police Station, Dhandhuka along with consequential proceedings on various grounds stated in the memo of petition which includes the settlement arrived at between the parties.
2. It is alleged that if the parties have resolved the dispute amicably with the intervention of family members and other well-wishers and due to that there is no heart burnings survive between the parties and, therefore, the present petition may be allowed and the impugned FIR may be quashed and set aside.
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3. During the course of hearing, original complainant Dineshbhai Dhanjibhai Rashmiya has appeared through video converencing and on inquiry, he has stated that the deceased was his wife and the petitioners are the neighbours and settlement has been arrived at between the parties and he has no objection if the FIR is quashed and the petition may be allowed.
4. The original complainant has filed the affidvit at page No.20, wherein he has stated in paras-2 to 6 as under:-
2. I say and submit that I reside at the abovementioned residence. It is submitted that on 30.05.2020, I left for my work at my cart near bus stand and around 11:45 AM my younger son brought tiffin for me. Thereafter my elder son was taking her mother (my wife) in auto ricksaw to the hospital around 12:15 to 12.30 PM. While going to the hospital my elder son has informed me that her mother (my wife) deceased has consumed the poisonous medicine.
Thereafter, me and my both the sons have reached the hospital wherein the doctor has informed me to take (my wife) her to the government hospital. After reaching the government hospital the doctor who was checking the deceased (my wife) Manjulaben asked me to take the patient to Bhavnagar as the condition of the patient was deteriorating. While I was taking deceased (my wife) to the Bhavnagar my wife has suddenly stopped the moment of her body while we were going to the Bhavnagar and the doctor who was in the Ambulance asked me to take deceased (my wife) to Vallabhpur Government Clinic. After reaching the Vallabhpur Government Clinic, the doctor in charge has declared her dead. After that I have brought the dead body of my wife Manjulaben to Dhandhuka Government Clinic wherein the postmortem has ben done.
3. I say and submit that on 29.05.2020 the petitioners had quarreled with me and deceased (my wife) and weboth the parties in the past 5 months had instances of verbal abusing and quarrel with each others. The deceased has committed suicide as she couldn't bear the occasional verbal abuse and quarrel with the petitioners. I have made the above allegation in the FIR and the said allegations are Page 2 of 10 Downloaded on : Mon Oct 26 22:22:32 IST 2020 R/CR.MA/13819/2020 ORDER based on presumption and the present pettioners have no antecedents of any crime and me and the petitioners have been living in the same locality for more than 20 years. I was under the impression that the present petitioners (accused no.1 to 7) and their actions were responsible for my wife to take poisonous medicine.
4. I say and submit that after the filing of the aforesaid FIR thereafter, I came to know the whole truth of the incident. My wife used to take a lot of tension in small things. The present petitioners (accused no.1 to 7) did not even know that she had taken poisonous medicine.
5. It is submitted that the present petitioners (accused no.1 to 7) are innocent and has not committed any illegal act. The present petitioners (accused no.1 to 7) are near relatives of mine and we have been sharing the same locality / neighbourhood. The present petitioners (accused no.1 to 7) has a dignified life and holds good character in the society. Under these circumstances, I am not inclined to pursue the aforesaid FIR and any other consequential proceedings against the present petitioners any further.
6. I say that considering the totality of the facts and circumstances of the case, I have no objection if the Hon'ble Court quashes and set aside the F.I.R. Dated 30.05.2020 registered against the petitioners as FIR No.!!! 92018200372 of 2020 with Dhandhuka Police Station, Dhandhuka and other consequential proceedings in the interest of justice.
5. Heard learned advocate for the petitioners, learned APP for the respondent - State and learned advocate for respondent No.2.
6. Learned advocate for the petitioners and learned advocate for resopndent No.2 have submitted that the dispute is amicable settled between the parties and, therefore, the petition may be allowed.
7. Learned APP for the respondent - State has, while Page 3 of 10 Downloaded on : Mon Oct 26 22:22:32 IST 2020 R/CR.MA/13819/2020 ORDER relying upon the judgment dated 01.02.2016 rendered by the Division Bench of this Court in the case of State of Gujarat Vs. Jadav @ Jatin Bhagvanbhai Prajapati in Criminal Appeal No.652 of 2008, submitted that in the present case, the allegation is for the offence under Section 306 of the Indian Penal Code and, therefore, the settlement may not be recognized and the petition may be dismissed.
8. In rejoinder, learned advocate for the petitioners and learned advocate for the complainant have relied upon the following decisions.
1. Rameshbhai Kantibhai Rawal Vs. State of Gujarat dated 01.10.2019 rendered in Criminal Misc. Application No.14829 of 2019;
2. Jorubhai Amrubhai Varu Vs. State of Gujarat dated 19.08.2020 rendered in Criminal Misc. Application No.9538 of 2020;
3. Yogeshkumar Radheshyam Shah Vs. State of Gujarat dated 13.12.2016 rendered in Criminal Misc. Application No.13751 of 2015;
4. Narinder Singh and others Vs. State of Punjab and another, (2014) 6 SCC 466;
5. Madan Mohan Abbot Vs. State of Punjab, (2008) 4 SCC 582;
6. Gian Singh Vs. State of Punjab and another, (2012) 10 SCC 303;
7. Bhagwan Das Vs. Kartar Singh and others, (2007) 11 SCC 205;
8. Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618;
9. M. Mohan Vs. State represented by the Deputy Superintendent of Police, (2011) 3 SCC 626;
10. State of Haryana and others Vs. Bhajanlal and others, 1992 Supp (1) SCC 335;
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9. Learned advocate for the petitioners has submitted that even when there is a case of Section 306 of the Indian Penal Code, in that case also, when there is settlement arrived at between the parties, the petition were allowed and the FIRs were quashed. He has submitted that on reading of the FIR, essential ingredients of abetment under Section 107 of the Indian Penal Code are not made out. He has, therefore, submitted that in view of the aforesaid decisions, when there is no ingredients of Section 107 of the Indian Penal Code, then, no case under Section 306 of the Indian Penal Code be continued. He has submitted that as the complainant has already filed the affidavit regarding genuineness of the settlement and he has no objection if the FIR is quashed, in that case, even the matter would be tried before the Trial Court, the complainant would not support the prosecution case and the entire exercise would be misuse of process of law and it will be futile exercise in vein. He has prayed to allow the present petition.
10. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the Page 5 of 10 Downloaded on : Mon Oct 26 22:22:32 IST 2020 R/CR.MA/13819/2020 ORDER administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.
11. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.
12. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the Page 6 of 10 Downloaded on : Mon Oct 26 22:22:32 IST 2020 R/CR.MA/13819/2020 ORDER offence.
13. Having considered the submissions of both the sides and perusing the decisions cited at the Bar, especially one relied upon by the learned APP is concerned, it appears that in that case, the Trial Court has acquitted the accused on the basis of the evidence of three material witnesses, who turned hostile. Those witnesses were the father and near relatives of the deceased. That fact was challenged before this Court and considering the peculiar scenario thereof, this Court has depricated practice of the Trial Court and the learned PP, who has conducted the case and reversed the decision and convicted the accused. Now, in the present case, the petitioners are not the family of in-laws of the deceased, but they are neighbours of the complainant and as per the affidavit of the complainant, he has, under impression, lodged complaint as there were some quarrel going on between the complainant side and accused side.
14. It also appears from the record that the allegation against the present petitioners are that they have harassed the deceased which induced her to consume poison. On perusal of the FIR itself, it appears that there is no ingredients of abetment under Section 107 of the Indian Penal Code and, therefore, the commission of offence under Section 306 of the Indian Penal Code itself is doubtful. Further, the complainant himself has narrated the fact on oath that the continuation of the proceedings before the Page 7 of 10 Downloaded on : Mon Oct 26 22:22:32 IST 2020 R/CR.MA/13819/2020 ORDER Trial Court would be nothing but futile exercise in vain. The complainant will not support the case of the prosecution and there is no chance of any conviction of the accused.
15. 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 Page 8 of 10 Downloaded on : Mon Oct 26 22:22:32 IST 2020 R/CR.MA/13819/2020 ORDER 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 answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
16. Considering the ratio as above, submissions of the learned Additional Public Prosecutor cannot be accepted. Mere invocation of the provisions for serious offences would not necessarily lead to inference of commission of such Page 9 of 10 Downloaded on : Mon Oct 26 22:22:32 IST 2020 R/CR.MA/13819/2020 ORDER offences. It is noticed that in the complaint, half-hearted allegation against the petitioners 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 petitioners 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.
17. Accordingly, the settlement is acknowledged and the FIR being C.R.No.11192018200372 of 2020 registered with Dhandhuka Police Station, Dhandhuka for the offence under Sections 306, 504, 506(2), 114 etc. of the Indian Penal Code and Section 174 of the Criminal Procedure Code and all connected proceedings arising therefrom, qua the present petitioners, are quashed. No order as to costs. Direct service is permitted.
(DR. A. P. THAKER, J) VR PANCHAL / cmk Page 10 of 10 Downloaded on : Mon Oct 26 22:22:32 IST 2020