Gujarat High Court
Bhemjibhai Hathibhai Dhulia vs State Of Gujarat & on 27 February, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/302/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 302 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
================================================================
1 Whether Reporters of Local Papers may be allowed to see the NO
judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the NO
interpretation of the Constitution of India or any order made
thereunder ?
================================================================
BHEMJIBHAI HATHIBHAI DHULIA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MR PARESH A. PATEL, ADVOCATE for the Applicant(s) No. 1
MR MB RANA, ADVOCATE for the Respondent(s) No. 2
MS HB PUNANI ADD. PUBLIC PROSECUTOR for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 27/02/2015
ORAL JUDGMENT
This petition is filed under Article 226 of the Constitution of India wherein the petitioner has prayed that the First Information Report being C.R. I-127 of 2011 registered with Deesa (Rural) Police Station be Page 1 of 7 R/SCR.A/302/2012 JUDGMENT quashed and set aside qua the petitioner.
2. Heard learned advocate Shri Paresh A. Patel for the petitioner original accused No.3. Learned advocate submitted that the First Information Report being C.R.I-127 of 2011 came to be registered with the Deesa Rural Police Station against the petitioner and others for the offences punishable under Section 465, 467, 468, 420, 193, 120B and 114 of the Indian Penal Code. The petitioner has therefore preferred this petition for quashing and setting aside the said F.I.R. and the charge sheet filed thereunder on merits. Learned advocate submitted that this Court by order dated 17.4.2012 observed the contentions of the petitioner and other side. The order passed by this Court reads as under:-
"2. Learned advocate for the petitioner submits that the petitioner is a retired Mamlatdar aged about 71 years. The impugned complaint is filed on 01.07.2011 for the alleged offence of certifying entry and in appeal filed by the aggrieved persons the entries are restored to the original position. It is submitted that subjecting the petitioner to the trial for the above allegations would cause undue hardship.
3. Learned APP for the respondent-State of Gujarat and learned advocate for the respondent No.2 submit that prima facie it appears that for the alleged irregularities charge sheet is filed and, therefore, at this stage, no interference is called for by this Court.
Having heard learned advocates for the parties and considering the nature of allegations and for the alleged incidents of 1988 complaint is filed in the year 2011 and further civil & revenue proceedings were initiated, at this stage, I am inclined to admit the petition and grant stay in favour of the petitioner."
3. Learned advocate further submitted that however during the pendency of this petition the dispute is settled with respondent No.2, and Page 2 of 7 R/SCR.A/302/2012 JUDGMENT therefore respondent No.2 has filed an affidavit before this Court that if the impugned F.I.R. is quashed and set aside qua the petitioner he has no objection. The said affidavit is produced at page 254 of the compilation.
4. Learned advocate Shri M.B. Rana appearing for respondent No.2 also submitted that the matter is amicably settled out of court with the petitioner, and therefore if the impugned F.I.R. and the charge sheet filed thereunder are quashed and set aside respondent No.2 is not having any objection.
5. Learned A.P.P. Ms. H.B. Punani has also submitted that the dispute between the parties is settled, and therefore this Court may pass appropriate order in the interest of justice.
6. I have considered the arguments canvassed on behalf of the learned advocates for the parties and also gone through the relevant record of the case. This Court has admitted the petition and granted interim relief in favour of the petitioner on merits. However, now when the matter is settled between the petitioner and the respondent No.2, I am not inclined to go into the merits of this petition and the petition is required to be allowed on the ground that the dispute is amicably settled between the parties. In the affidavit filed by respondent No.2, it is stated in paragraph No.2 as under:
"2. That the dispute, if any, was between me and the Petitioner that had arose because of miscommunication and misunderstanding between the petitioner and me, is now fully settled and no useful purpose would be served in continuing with the proceedings and therefore, I have no objection and grievance, if the F.I.R. being I-C.R.No.127 of 2011 registered with Deesa Rural Police Station, Deesa, as well as charge sheet Page 3 of 7 R/SCR.A/302/2012 JUDGMENT No.6 of 2012 along with the further proceedings of the Criminal Case No.462 of 2012 pending before the Learned Add. Chief Judicial Magistrate at Deesa, are quashed, wherein I am the complainant."
Thus, in view of the aforesaid submissions canvassed on behalf of the learned advocates for the parties, it is clear that the dispute is settled out of court between the parties and respondent No.2.
7. Learned advocate for the petitioners relied upon the decision of the Hon'ble Supreme Court in the case of Yogendra Yadav & Ors. Vs. The State of Jharkhand & Anr. reported in AIR 2014 SC 3055. Learned advocate for the petitioner further relied upon the decision of the Hon'ble Supreme Court in the case of Narinder Singh & Ors. v. State of Punjab & Anr. reported in (2014) 6 SCC 466. Learned advocate for the petitioners further relied upon the orders passed by this Court in Criminal Misc. Application No.20710 of 2014, Criminal Misc. Application No.16176 of 2014 and Criminal Misc. Application No.11060 of 2014, and submitted that in all the aforesaid cases, the concerned complainant filed the complaint for the offences punishable under Section 307 and other Sections of the Indian Penal Code, and when the matter was settled between the original complainant and the injured witnesses, the Hon'ble Courts have quashed the F.I.R. on the ground of settlement.
5. The Hon'ble Supreme Court in the case of Yogendra Yadav (Supra) observed in para 4 to 7 as under:
"4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 of the Indian Penal Code which are noncompoundable. Needless to say that offences which are noncompoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The Page 4 of 7 R/SCR.A/302/2012 JUDGMENT said provision has to be strictly followed (Gian Singh v. State of Punjab[1]). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are noncompoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace.
5. In Gian Singh this Court has observed that where the High Court quashes a criminal proceeding having regard to the fact 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. Needless to say that the above observations are applicable to this Court also.
6. Learned counsel for the parties have requested this Court that the impugned order be set aside as the High Court has not noticed the correct Page 5 of 7 R/SCR.A/302/2012 JUDGMENT position in law in regard to quashing of criminal proceedings when there is a compromise. Affidavit has been filed in this Court by complainant Anil Mandal, who is respondent No. 2 herein. In the affidavit he has stated that a compromise petition has been filed in the lower court. It is further stated that he and the appellants are neighbours, that there is harmonious relationship between the two sides and that they are living peacefully. He has further stated that he does not want to contest the present appeal and he has no grievance against the appellants. Learned counsel for the parties have confirmed that the disputes between the parties are settled; that parties are abiding by the compromise deed and living peacefully. They have urged that in the circumstances pending proceedings be quashed. State of Jharkhand has further filed an affidavit opposing the compromise. The affidavit does not persuade us to reject the prayer made by the appellant and the second respondent for quashing of the proceedings.
7. In view of the compromise and in view of the legal position which we have discussed hereinabove, we set aside the impugned order dated 4/7/2012 and quash the proceedings in S.C.No.9/05 pending on the file of 2nd Additional Sessions Judge, Godda. The appeal is disposed of."
6. In view of the aforesaid factual and legal position, I am of the opinion that no fruitful purpose would be served in continuation of the criminal proceedings in the present case, and it will be an exercise in futility. Justice in the case demands that the dispute between the parties is put to an end and peace is restored. In the result, the petition is allowed. The F.I.R. being C.R. I-114 of 2012 registered with Vadodara Taluka Police Station, Vadodara (Rural) as well as all the consequential proceedings pursuant thereto are quashed and set aside. Consequently, all further proceedings pursuant to the said FIR shall stand terminated. Rule is made absolute. Direct service is permitted.
Page 6 of 7 R/SCR.A/302/2012 JUDGMENT
(VIPUL M. PANCHOLI, J.)
sndevu
Page 7 of 7