Gujarat High Court
Janak @ Rajeshbhai Dashratbhai Nayak vs State Of Gujarat & on 7 January, 2015
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/14646/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION ) NO. 14646 of 2014
(FOR QUASHING & SET ASIDE FIR/ORDER
=============================================
JANAK @ RAJESHBHAI DASHRATBHAI NAYAK....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
=============================================
Appearance:
JAGAT V PATEL, ADVOCATE for the Applicant(s) No. 1
MR HARDIK A DAVE, ADVOCATE for the Applicant(s) No. 1
NILESH N NAYAK, ADVOCATE for the Respondent(s) No. 2
MR ANKIT N SHAH, APP for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 07/01/2015
ORAL ORDER
1. By way of the present application filed under Section 482 of the Code of Criminal Procedure, the applicant - original accused has prayed to quash and set aside the FIR being C.R.No. I 83 of 2014 registered with Kalupur Police Station, Ahmedabad for the offences punishable under Sections 376, 323 and 506(2) of the Indian Penal Code along with all the subsequent proceedings thereto mainly on the ground that the complainant - prosecutrix and the applicant are close relatives and they have amicably settled the matter due to intervention of respected members of the family as well as the society.
2. Brief facts of the case arise from the record are as under:
2.1. That respondent No.2, who is sisterinlaw of the present applicant (sister of his wife), lodged an FIR on 20.06.2014 with Kalupur Police Station, Ahmedabad for the offences punishable under Sections 376, 323 and 506(2) of the Indian Penal Code alleging Page 1 of 5 R/CR.MA/14646/2014 ORDER that since the prosecutrix, who was residing with her husband, was not conceiving, the present applicant on several occasions entered into the physical relationship with her against her will and committed rape. Since the applicant continued in similar crime, she was compelled to lodge the FIR.
3. Mr. Hardik Dave, learned advocate for the applicant would submit that due to temporary differences and dispute between the family members relating to monetary transaction and property, the said FIR came to be lodged by the prosecutrix. He would further submit that the said aspect has been confirmed by the prosecutrix by filing affidavit dated 12.09.2014 before this Court. By taking me through the affidavit filed by the prosecutrix, he would further submit that the matter is amicably settled between the parties, it would be futile exercise if the applicant is subjected to trial, and therefore, the FIR and the subsequent proceedings thereto to be quashed and set aside.
4. Mr. Hardik Dave, learned advocate for the applicant 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.
5. I have heard Mr.Nilesh N. Nayak, learned advocate for respondent No. 2 - prosecutrix. He would submit that the whatever has been submitted by the applicant and whatever has been mentioned in the affidavit dated 12.09.2014 filed by the prosecutrix are correct.Page 2 of 5
R/CR.MA/14646/2014 ORDER He has also identified the prosecutrix, who is present in the Court.
He would further submit that the prosecutrix has no objection, if the FIR and the subsequent proceedings thereto are quashed and set aside.
6. Mr. Ankit N.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.
7. I have heard learned advocate for the respective parties, perused the papers of investigation, FIR and affidavit filed by the prosecutrix. It is an undisputed fact that applicant is the husband of real sister of the prosecutrix and as stated by them, the dispute was with regard to some monetary transaction between the parties.
The affidavit filed by prosecutrix dated 12.09.2014 reads as under:
"I, the undersigned, Shilpaben Janakkumar Nayak, aged 35 yrs., Occupation : Household, residing at present 2267, Durgamata Pol, Tragadwad, Swaminarayan Mandir Road, Kalupur, Ahmedabad and Respondent No. 2 in the petition filed by Janak @ Page 3 of 5 R/CR.MA/14646/2014 ORDER Rajeshbhai Dashrathbhai Nayak for the purpose of quashing of the FIR filed by me vide Ist C.R.No. 83 of 2014 before Kalupur Police Station state on oath and solemnly affirm that;
I say and submit that Applicant is my real brotherin law and initiation of the impugned FIR is because of temporary differences and disputes between the family members relating to monetary transaction and properties and now due to intervention of the respected members of the society and family mutual understanding and agreement is arrived between me and original accused person in the above said FIR i.e. Janak @ Rajeshbhai Dashrathbhai Nayak i.e. Applicant / Accused and now I don't have any grievance with him.
I further state that as such now I intend that I have no objection if the FIR is quashed filed against Janak @ Rajeshbhai Dashrathbhai Nayak Applicant / Accused.
I state that what is stated herein above is true and correct to the best of my knowledge, information and belief and I believe the same to be true."
8. 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 Page 4 of 5 R/CR.MA/14646/2014 ORDER considered the case on hand. I have perused the papers of FIR and nature and gravity of the offence. In the present case, even if the allegations are looked into, the prosecutrix and the accused persons are married and are living with their spouses and considering the overall facts and circumstances of the case, the present application is allowed. The FIR being C.R.No. I 83 of 2014 lodged with Kalupur Police Station, Ahmedabad along with all the proceedings thereunder i.e. chargesheet, the proceedings and Criminal Case No. 10670 of 2014 pending in the Court of Metropolitan Magistrate, Court No. 16, Ahmedabad are hereby quashed and set aside qua the applicant. Rule is made absolute accordingly. Direct service is permitted.
(A.J.DESAI, J.) *Kazi...
Page 5 of 5