Gujarat High Court
Hiteshbhai Rameshbhai Nili vs State Of Gujarat on 13 December, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/10656/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10656 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 10621 of 2018
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HITESHBHAI RAMESHBHAI NILI
Versus
STATE OF GUJARAT
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Appearance:
MR. NITESH G JAIN(7178) for the PETITIONER(s) No. 1,2,3,4,5
for the RESPONDENT(s) No. 2
MR. MANAN MEHTA, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 13/12/2018
COMMON ORAL ORDER
1. This Court on 05.12.2018 had passed the following order:
"1. In both the matters, parties are present for seeking quashment of FIR being ICR No. 142 of 2012 registered with Limbayat Police Station, Surat where the Court has convicted the applicants under Sections 498A, 323, 504, 506(2), 114 of IPC and under Sections 3, 5 and 7 of Dowry Prohibition Act.
2. The second petition is filed for seeking quashment of proceedings arising from the Domestic Violence Act.
3. Affidavit of respondent No.2original complainant in the both the matters are brought on record. The original complainant confirms to enter into the settlement for buying lasting peace she has also agreed to end the dispute. By way of full and final Page 1 of 12 R/SCR.A/10656/2018 ORDER settlement to bring lasting peace, she also agreed to give divorce and that purpose would be final by way of mutual consent under Section 13B in the Hindu Marriage Act, 1955. On a query raised by this Court to the respondent's wife, she has submitted that she is yet to receive her belongings and her streedhan from the present applicants. Let the same be handed over to her. The amount of Rs.5,00,000/ has already been paid, which she had received. The Demand Draft of Rs. 5,00,000/ further is handed over today to her and remaining amount of Rs.3,00,000/ is to be given to the complainant, once the decree is passed by the Competent Court. Let the amount of Rs.3,00,000/ by way of Demand Draft is submitted before the Registry by next week. Both the matters be listed on 13th December 2018 in the first 25 matters."
2. This is an application for seeking quashment of the First Information Report being IC.R. No. 142 of 2012 registered at Limbayat Police Station, Surat for the offences punishable under Sections 498 (A), 323, 504, 506 (2) and 114 of the Indian Penal Code and Sections 3, 5 and 7 of the Dowry Prohibition Act and all other proceedings arising therefrom including order of conviction dated 05.10.2017 passed in Criminal Case No. 21566 of 2012 in Special Criminal Application No. 10656 of 2016, and order dated 30.04.2018 passed in Criminal Misc. Application No. 278 of 2013 passed by 10th Additional Civil Judge and Judicial Magistrate First Class, Surat in Special Criminal Application No. 10621 of Page 2 of 12 R/SCR.A/10656/2018 ORDER 2018.
3. Today, learned advocate Mr. Nitesh Jain submits that, Rs.3,00,000/ if deposited by way of demand draft in the name of respondent no.2, it may cause some difficulty, as decree of divorce may not be passed within three months. Let the demand draft be drawn in the name of Registrar General, High Court of Gujarat, Sola, Ahmedabad. This is to be presented within a one week from the date of receipt of the order. On such draft being presented, the amount shall be fixed deposited by the Registry for the purpose of 12 weeks, if necessary for further 12 weeks.
4. In the meantime, the parties have moved for consent decree before the Court concerned. The concerned family court shall authorize the person for the transfer of amount of Rs.3,00,000/ to the Registry of the Family Court or directly contact the Registry of this Court to deposit the amount in the account of the present respondent no.2, her bank account details be furnished alongwith the pursis today.
5. The respondent no.2 who is present before this Court has stated that all her belongings and Streedhan has been received by her. She has also received the permanent alimony, except the sum of Rs.3,00,000/ (rupees Three Lakhs only), nothing Page 3 of 12 R/SCR.A/10656/2018 ORDER now is required to be exchanged between the parties.
6. This Court has heard learned advocates appearing for the respective parties.
7. Having heard both the sides and also considering the broad guidelines issued by the Apex court in the case of Gian Singh v. State of Punjab and Another reported in (2012) 10 SCC 303 and Narinder Singh and others v. State of Punjab and another reported in (2014) 6 SCC 466, the request of the applicants of the aforesaid application is acceded to.
8. Considering the findings and observations of the Apex Court in the case Gian Singh (supra) in paragraphs 53, 54 and 57 read as under:
"53. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the Page 4 of 12 R/SCR.A/10656/2018 ORDER ultimate consequence may be acquittal or dismissal of indictment.
54. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although 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. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens wellbeing of society and it is not safe to leave the crimedoer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.
57. 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 Page 5 of 12 R/SCR.A/10656/2018 ORDER 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 victim's 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 Page 6 of 12 R/SCR.A/10656/2018 ORDER 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."
9. Considering the findings and observations of the Apex Court in the case Narinder Singh (supra) in paragraphs 11, 12 and 27 read as under:
"11.As to under what circumstances the criminal proceedings in a non compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines:
"Where the High Court quashes a criminal proceeding having regard to the facts 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. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the wellbeing of the society and it is not safe to leave the crimedoer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Page 7 of 12 R/SCR.A/10656/2018 ORDER Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavor having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hardandfast category can be prescribed."
12.Thereafter, the Court summed up the legal position in the following words:
"The position that emerges from the above discussion can be summarized 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 plentitude with no statutory limitation but it has to be exercised in accord with the guidelines engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to Page 8 of 12 R/SCR.A/10656/2018 ORDER prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the 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 victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 flavor stand on a 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, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal Page 9 of 12 R/SCR.A/10656/2018 ORDER 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 or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
27.At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173,Cr.P.C. is also placed before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of Page 10 of 12 R/SCR.A/10656/2018 ORDER justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case."
10. Noticing that the dispute has been settled due to intervention of the family and friends, therefore, no purpose is likely to be served continuing the litigation. Therefore, the request of the parties is acceded to.
11. For the foregoing reasons, the present applications are allowed and First Information Report being IC.R. No. 142 of 2012 registered at Limbayat Police Station, Surat and all other proceedings arising therefrom including order of conviction dated 05.10.2017 passed in Criminal Case No. 21566 of 2012 and order dated 30.04.2018 passed in Criminal Misc. Application No. 278 of 2013 passed by 10th Additional Civil Judge and Judicial Magistrate First Class, Surat are hereby quashed and set aside alongwith all the proceedings emanating therefrom.
12. Subject to the direction given above, Page 11 of 12 R/SCR.A/10656/2018 ORDER the present applications are allowed.
13. Parties shall abide by the document of the consequent terms for filing of the divorce petition.
These applications are allowed, accordingly.
Direct service is permitted.
(MS SONIA GOKANI, J) pradhyuman Page 12 of 12