Gujarat High Court
Arunbhai Bhagwanjibhai Vyas (Jaspara) vs State Of Gujarat on 19 December, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/21377/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21377 of 2018
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ARUNBHAI BHAGWANJIBHAI VYAS (JASPARA)
Versus
STATE OF GUJARAT
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Appearance:
HARSHESH R KAKKAD(7813) for the PETITIONER(s) No. 1
MR RC KAKKAD(389) for the PETITIONER(s) No. 1,2
for the RESPONDENT(s) No. 2
MS. JIRGA JHAVERI, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 19/12/2018
ORAL ORDER
1. This Court on 19.11.2018 passed the following order:
"1. The present respondent No.2 who is the complainant has lodged an FIR being C.R. No.I143 of 2018 at Keshod Police Station, Junagadh on 21.10.2018 for the offences punishable under Sections 498A, 323, 504, 506(2) and 114 of the Indian Penal Code.
2. The earlier complaint made being C. R. No. I3 of 2017 registered with Keshod Police Station, Junagadh on 28.03.2015 for the offences punishable under Sections 498A, 323, 506(2) and 114 of the Indian Penal Code.
3. According to the learned advocate appearing for the applicants, the learned Additional Chief Judicial Magistrate, Page 1 of 11 R/CR.MA/21377/2018 ORDER Keshod has acquitted the present applicants and others by giving benefits of doubts from all the charges vide judgment and order dated 05.07.2017. He has urged that as such complainant is not desirous of staying under the same roof with the father of the applicant.
4. Let the investigating officer remain present on the next date of hearing.
5. In the meantime, the Investigating Officer shall follow the dictum of the Hon'ble Apex Court rendered in the case of Joginder Kumar V. State of Uttar Pradesh and others, reported in (1994) 4 SCC 260.
6. Let the matter be appear on 27.11.2018."
2. Today, the affidavit of the respondent no. 2
- original complainant, viz. Pratikshaben Prakashbhai Pandya is brought on record, wherein she has stated that parties have arrived at with the settlement and a deed of divorce dated 10.12.2018 have been executed before the Notary, wherein one of the terms is that daughter who is aged 2 ½ years is continued to remain with the father and she also does not claim any amount of maintenance. She has given divorce voluntarily.
3. This court has heard learned advocates appearing for the respective parties as well as learned Additional Public Prosecutor appearing for the respondent - State.
Page 2 of 11R/CR.MA/21377/2018 ORDER 4. 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.
5. 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 Page 3 of 11 R/CR.MA/21377/2018 ORDER 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 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 Page 4 of 11 R/CR.MA/21377/2018 ORDER 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 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."
6. Considering the findings and observations of the Apex Court in the case Narinder Singh Page 5 of 11 R/CR.MA/21377/2018 ORDER (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 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, Page 6 of 11 R/CR.MA/21377/2018 ORDER 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 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 Page 7 of 11 R/CR.MA/21377/2018 ORDER 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 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 Page 8 of 11 R/CR.MA/21377/2018 ORDER 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 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 Page 9 of 11 R/CR.MA/21377/2018 ORDER proceedings which in all likelihood would end in acquittal, in any case."
7. Considering the very young age of the child, whose custody is retained by the father, this Court deemed it fit to refer the matter to the High Court Mediation Center, where the Member Secretary Mr. H.S. Muliya, himself had acted as a Mediator and verified all the details, made all possible attempts. It is reiterated that there is nothing to doubt the genuineness, nor is there coercion or force in arriving at the consent terms by the respondent no.2. With this report, this Court is inclined to consider the request of the quashment of the F.I.R.
8. This Court appreciates the prompt and efficient services rendered by Mr. H.S. Muliya, Member Secretary, High Court Mediation Center.
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. 143 of 2018 registered at Page 10 of 11 R/CR.MA/21377/2018 ORDER Keshod Police Station, District: Junagadh is 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 11 of 11