Gujarat High Court
Kamlesh Bhurchad Bilwa vs State Of Gujarat on 5 November, 2020
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.MA/14659/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14659 of 2020
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KAMLESH BHURCHAD BILWA
Versus
STATE OF GUJARAT
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Appearance:
M S PADALIYA(7406) for the Applicant(s) No. 1
MS MOXA THAKKER APP (2) for the Respondent(s) No. 1
S M KIKANI(7596) for the Respondent(s) No. 2
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 05/11/2020
ORAL ORDER
1. Heard Mr.Padaliya, learned advocate for the applicant, Ms.Thakker, learned Additional Public Prosecutor for the respondent - State and Mr.Kikani, learned advocate for the original complainant through Video Conferencing.
2. At the request of learned advocates for the parties, the matter is taken up for final hearing.
3. By invoking the provisions of Section 482 of the Criminal Procedure Code, 1973, the applicant has sought relief to quash and set aside the impugned FIR being C.R.No.I - 21/2016 registered with Kuvadva Road Police Station, District: Rajkot dated 07.02.2016 for the offence punishable under Sections 366, 363, 114 etc. of the Indian Penal Code.
4. An affidavit-in-reply has been filed by the complainant to Page 1 of 6 Downloaded on : Fri Nov 06 04:18:40 IST 2020 R/CR.MA/14659/2020 ORDER the following effect.
"2. I have lodged the FIR registered as C.R.No.I-21/2016 for the offences punishable u/s. 366, 363, 114 of IPC with Kuvadva Road Police Station, Rajkot dated 07.02.2016. I say that I am the original complainant in the said offence - complaint. I say that I have gone through with this memo of application and I am fully conversant with the facts and circumstances of this case and therefore I am duly competent to execute this affidavit. At the outset, I say that the facts stated in the memo of application are not disputed by me.
3. I say and submit that both the present applicant and my victim daughter of the FIR having 2 son amongst them eldest son is "Mohit" and younger son namely "Manav" and they are happily married to each other and maintaining their two children; having no disputes and grievances left they are living happy life with each other. The descriptions of both the children are as below.
4. I further state and submit that even I am residing with my victim daughter along with the present petitioner and helping to maintain both the children of my victim daughter and present applicant. Therefore, I am having no disputes and grievances left behind and I don't want to proceed with the proceedings of this FIR. I say and submit that my dughter was major even at the time of FIR as well and she is also happy with the present petitioner.
5. I say that I have settled the dispute and differences with the applicants and I do not wish to go on with the complaint lodged by me against them as the isues between us are settled outside of the court. I further say and submit that FIR in question was lodged by me out of desperation, anger and anxiety. I say that I have lodged the impugned FIR out of tenseness and nervousness.
6. I say that after lodging of impugned FIR, the respected elders of our society have intervened and I realized the nature of hardships and inconvenience, socially and mentally, it will cause to both sides. If the criminal proceedings continue and both the sides are subjected to rigors of criminal trail, it will immensely affect our further prospects of better life.
7. In the facts and circumstances as narrated above, I my free will, wish and desire stating on oath that I do not wish to prosecute the criminal proceedings with the applicants herein as the dispute and differences between us have been amicably settled and resolved peacefully. I state that this Criminal Miscellaneous Application for quashing the complaint (being C.R. Page 2 of 6 Downloaded on : Fri Nov 06 04:18:40 IST 2020 R/CR.MA/14659/2020 ORDER No. I - 21/2016 for the offences punishable u/s. 366, 363, 114 of IPC with Kuvadva Road Police Station, Rajkot dated 07.02.2016) be allowed in the interest of justice."
5. An affidavit-in-reply has been filed by the victim / prosecutrix to the following effect.
"I am the victim / prosecutrix of the FIR registered as C.R.No.I- 21/2016 for the offences punishable u/s. 366, 363, 114 of IPC with Kuvadva Road Police Station, Rajkot dated 07.02.2016. I say that I am the victim in the said offence - complaint. I say that I have gone through with this memo of application and I am fully conversant with the facts and circumstances of this case and therefore I am duly competent to execute this affidavit. At the outset, I say that the facts stated in the memo of application are not disputed by me.
I say and submit that both the present applicant and I having 2 son during our married life amongst them eldest son is "Mohit"
and younger son namely "Manav" and they are happily married to each other and maintaining their two children; having no disputes and grievances left they are living happy life with each other. I have annexed the Birth Certificates of both my children along with this petition at Annexure - B Colly.
I further state and submit that even I am residing with the present petition and having very happy married life as well. Therefore, I am having no disputes and grievances I don't want to proceed with the proceedings of this FIR. I say and submit that I was major even at the time of FIR as well and I am also happy with the present petitioner.
I say that I have settled the dispute and differences with the applicants and I do not wish to go on with the complaint lodged by me against them as the issues between us are settled outside of the court. I further say and submit that FIR in question was lodged by me out of desperation, anger and anxiety. I say that I have lodged the impugned FIR out of tenseness and nervousness.
I say that after lodging of impugned FIR, the respected elders of our society have intervened and I realized the nature of hardships and inconvenience, socially and mentally, it will cause to both sides. If the criminal proceedings continue and both the sides are subjected to rigors of criminal trail, it will immensely affect our further prospects of better life.
In the facts and circumstances as narrated above, I my free will, Page 3 of 6 Downloaded on : Fri Nov 06 04:18:40 IST 2020 R/CR.MA/14659/2020 ORDER wish and desire stating on oath that I do not wish to prosecute the criminal proceedings with the applicants herein as the dispute and differences between us have been amicably settled and resolved peacefully. I state that this Criminal Miscellaneous Application for quashing the complaint (being C.R. No. I - 21/2016 for the offences punishable u/s. 366, 363, 114 of IPC with Kuvadva Road Police Station, Rajkot dated 07.02.2016) be allowed in the interest of justice."
6. Now, it is submitted by learned advocates for both the parties as well as the original complainant and victim, who have joined through Video Conferencing that there is settlement arrived at between the parties. The original complainant and the victim have stated that they have no objection if the FIR is quashed.
7. Learned Additional Public Prosecutor for respondent - State has objected to quash the FIR.
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 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 Page 4 of 6 Downloaded on : Fri Nov 06 04:18:40 IST 2020 R/CR.MA/14659/2020 ORDER 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 Page 5 of 6 Downloaded on : Fri Nov 06 04:18:40 IST 2020 R/CR.MA/14659/2020 ORDER 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."
8. 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 offences. Considering the affidavits filed on behalf of the original complainant and the victim, it appears that the matter has been amicably settled between the parties. Therefore, no useful purpose would be served to continue with the proceedings and if continued, it would be nothing but a futile exercise.
9. Therefore, in view of the affidavit filed by the complainant, the present application is allowed. The impugned First Information Report being C.R.No.I - 21/2016 registered with Kuvadva Road Police Station, District: Rajkot dated 07.02.2016 for offences alleged therein and all other consequential proceedings thereof are hereby quashed and set aside qua the present applicant. The application stands disposed of.
(DR. A. P. THAKER, J) VR PANCHAL / DIPTI PATEL Page 6 of 6 Downloaded on : Fri Nov 06 04:18:40 IST 2020