Gujarat High Court
Rajeshbhai Keshavbhai Sarla vs State Of Gujarat on 10 August, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/5422/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5422 of 2018
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RAJESHBHAI KESHAVBHAI SARLA
Versus
STATE OF GUJARAT
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Appearance:
MR LAXMANSINH M ZALA(5787) for the PETITIONER(s) No. 1,2
PARIMALSINH J VAGHELA(8455) for the PETITIONER(s) No. 1
SWETA A DAVE(8247) for the PETITIONER(s) No. 1
MR. YASH JOSHI, APP (4) for the RESPONDENT(s) No. 2,3
MS. M.D. MEHTA, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/08/2018
ORAL ORDER
1. This is an application for seeking quashment of the First Information Report being IC.R. No. 36 of 2016 registered at Lakhtar Police Station, Dist.: Surendranagar for the offences punishable under sections 363 and 366 of the Indian Penal Code as well as for quashing of Special (POCSO) Case No. 46 of 2016 and Special (POCSO) Case No. 49 of 2016 pending before the learned Special Judge & 2nd Additional Sessions Judge, Surendranagar.
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R/CR.MA/5422/2018 ORDER
2. The applicant No. 1 was having affair with victim and they both ran away from their houses. The respondent no.3 - victim was minor at that time, as her birth date is 04.12.1998 i.e. 17 years and 5 months. The complaint came to be lodged by the respondent no.2 - original complainant being IC.R. No.36 of 2016 registered at Lakhtar Police Station. The Investigating Officer has filed report before the learned Trial Court on 25.07.2016 for inserting Section 376 (2) N and under Sections 3(a) and 4 of the Prevention of Children From Sexual Offences Act, 2012.
3. After due investigation, chargesheet has been filed and Special case has been registered being Special (POCSO) Case No. 46 of 2016 and on the basis of the additional supplementary charge sheet, Special (POCSO) Case No. 49 of 2016 also has been registered, which has remained pending before the learned Special Judge and 2nd Additional Sessions Judge, Surendranagar.
4. Affidavitinreply has been filed by the Page 2 of 12 R/CR.MA/5422/2018 ORDER victim in the present proceedings stating therein that, there was a misunderstanding on the part her parents. However, due to intervention of common relatives and friends of both the sides, the issue / dispute has been resolved amicably, as both of them have already married. The original complainant Thakarshibhai Shankarbhai Hada who is father of the victim has also filed affidavit on 23.04.2018, paragraphs 3 to 5 of the affidavit read as under:
"3. I say that, there was a misunderstanding on my part; therefore, I lodged the FIR. I say that, the applicant also belong to our caste. Therefore, subsequent to lodging the FIR the common relatives of both the side intervened in the issue. Therefore, I with consent of my family members decided to settle the issue. Now, I am having no grievance or grudge regarding the incident. I say that, the victim girl is now aged about 19 years and if she desires to marry with applicant no.1, I shall not take any objection.
4. I say that I have no objection if the application filed by the applicants is allowed and the entire proceedings of Special POCSO Case No. 46 of 2016 with Special POCSO Case No. 49 of 2016 arising out of the FIR which was registered by me at Lakhtar Police Station vide C.R. No. I36 of 2016 for the offence punishable Page 3 of 12 R/CR.MA/5422/2018 ORDER under Sections 363, 366, 376 (2) N of Indian Penal Code and under section 3(a) and 4 of the Protection of Children From Sexual Offences Act, 2012 are quashed and prayer made by the applicants in the present application is granted by this Hon'ble Court.
5. I say that for the sake of harmonious relations with the applicant and remorse admitted by the applicant for his deed, compromise arrived at amongst us.
Therefore, I have filed this affidavit. Neither I have been threatened nor been enticed by any person including the accused / applicant for filing this affidavit of compromise."
5. This court has heard learned advocate Mr. Laxmansinh Zala for the applicants, learned Additional Public Prosecutor Ms. M.D. Mehta, for the respondent - State and learned advocate Mr. Yash Joshi, for the respondent nos. 2 and 3.
6. 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 Page 4 of 12 R/CR.MA/5422/2018 ORDER request of the applicants of the aforesaid application is acceded to.
7. 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 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, Page 5 of 12 R/CR.MA/5422/2018 ORDER 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 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.Page 6 of 12
R/CR.MA/5422/2018 ORDER 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."
8. 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 Page 7 of 12 R/CR.MA/5422/2018 ORDER 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 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 Page 8 of 12 R/CR.MA/5422/2018 ORDER 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 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 Page 9 of 12 R/CR.MA/5422/2018 ORDER 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 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 Page 10 of 12 R/CR.MA/5422/2018 ORDER 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 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."
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R/CR.MA/5422/2018 ORDER
9. 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.
10. For the foregoing reasons, the present application is allowed and First Information Report being IC.R. No. 36 of 2016 registered at Lakhtar Police Station, Dist.: Surendranagar alongwith the Special (POCSO) Case No. 46 of 2016 and Special (POCSO) Case No. 49 of 2016 are hereby quashed and set aside alongwith all the proceedings emanating therefrom.
This application is allowed, accordingly. Direct service is permitted.
(MS SONIA GOKANI, J) pradhyuman Page 12 of 12