Gujarat High Court
Dashrathbhai Bholidas Patel vs State Of Gujarat on 2 May, 2023
Author: Samir J. Dave
Bench: Samir J. Dave
R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5593 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE SD/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DASHRATHBHAI BHOLIDAS PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR COUNSEL for MR HEMAL P SHAH(3948) for
the Applicant(s) No. 1
NIMIT Y SHUKLA(8338) for the Applicant(s) No. 1
GAURAV K LAKHWANI(9520) for the Respondent(s) No. 2
MR MEET P THANKI(13015) for the Respondent(s) No. 2
MR MITESH AMIN, PUBLIC PROSECUTOR with MS M. H. BHATT, APP for
the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 02/05/2023
ORAL JUDGMENT
1. Considering the issue involved in the present application and with consent of the learned advocates appearing for the respective parties Page 1 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 as well as considering the fact that the dispute amongst the applicant and complainant has been resolved amicably, this matter is taken up for final disposal forthwith.
2. By way of this petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (for short, "the Cr.P.C."), the petitioner has prayed to quash and set aside the complaint being FIR No.11192011220374 registered with Bopal Police Station, District: Ahmedabad for the offences punishable u/s. 406, 419, 420, 465, 467, 468, 471, 474, 120(B) of IPC and all other consequential proceedings.
3. Learned counsel for the respective parties submitted that during pendency of the criminal proceedings, the parties have amicably settled their issue by way of mutual settlement and pursuant to understanding arrived at, the Complainant has accordingly filed an affidavit, which is on record. The complainant has categorically stated in the affidavit that dispute is amicably resolved and has no objections if the present proceedings are quashed and there is no surviving grievance between them.
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4. Having heard learned advocate for the petitioners and learned APP for the respondent State, it appears that present applicant accused had clearly played an active role in the commission of serious offence of forgery, used such forged documents as genuine to grab the land of the original complainant. It appears that the present applicant accused and his brother who is in judicial custody in connection with the present offence, are in habit of grabbing the lands by such and similar modus operandi and other criminal complaints of forgery have been lodged against the present applicant. It also appears that the applicant accused is habitual offender and he is involved in total 7 offences including the present and he is shown as absconder since the charge-sheet is filed qua other accused. It also appears that the conduct of the applicant of not cooperating with the investigating agency though there are conditional bail orders passed by the Hon'ble Apex Court as well as by this Hon'ble Court. The present applicant was considered on regular bail by the Hon'ble Apex Court vide order dated 26.08.2022 in Criminal Appeal No.1350 of 2022 in connection of offence registered with the Vastrapur Police Station, however, the State of Gujarat had filed an Page 3 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 application for cancellation of bail of the applicant accused in connection with C.R. NO.I- 11191020201493 registered with Vastrapur Police Station and the same is pending for its adjudication before this Court.
5. This Court notices that this request is made for exercise of inherent powers under section 482 of the Cr.P.C., which are very wide amplitude. These inherent powers can be exercised either to sure the ends of justice or to prevent the abuse of process of law.
However, it would dependent on the facts and circumstances of each case and no category is prescribed by the Court for the same. What is required to be considered is the nature and gravity of the offence. Heinous and serious offences, such offence of rape or dacoity or murder or the offence leading to serious injuries etc. may not be considered for the purpose of exercise of inherent powers.
6. Ordinarily, it is expected that the category of commercial offences or disputes of mercantile and of civil nature or matrimonial disputes or disputes of partnership firms etc., the Court may consider to exercise these powers, when the parties have chosen to settle the disputes. The Court also need to record, whether the Page 4 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 continuation of the criminal prosecution would cause extreme prejudice to the accused or would cause him injustice, if not allowed the quashment, even after the parties have settled all their disputes. These powers are required to be exercised sparingly, as stated above. Since, the offence against the society, it cannot be said to be a private FIR between the parties.
7. In a series of decisions, the Apex Court has explained the contours of the power under Section 482 Cr.P.C. In the case of Prabhatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. Vs. State of Gujarat and Anr., (2017) 9 SCC 641, the Hon'ble Supreme Court has observed as under:
"10. On the other hand, learned counsel appearing on behalf of the state has supported the judgment of the High Court. Learned counsel emphasized the circumstances which weighed with the High Court, including (i) the seriousness of the allegations; (ii) the conduct of the appellants who were absconding; and (iii) the criminal antecedents of the appellants. Hence, it was urged that the appellants were not entitled to the relief of quashing the FIR merely because they had entered into a settlement with the complainant.
11. Section 482 is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. In Gian Singh (supra) a bench of three learned Page 5 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 Judges of this Court adverted to the body of precedent on the subject and laid down guiding principles which the High Court should consider in determining as to whether to quash an FIR or complaint in the exercise of the inherent jurisdiction. The considerations which must weigh with the High Court are:
"61...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 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 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 flavour 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 Page 6 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 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 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.
12. In Narinder Singh (supra), Dr Justice A K Sikri, speaking for a bench of two learned Judges of this Court observed that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of society that the offender should be punished to deter others from committing a similar crime. On the other hand, there may be offences falling in the category where the correctional objective of criminal law would have to be given more weight age than the theory of deterrence. In such a case, the court may be of the opinion that a settlement between the parties would lead to better relations between them and would resolve a festering private dispute. The court observed that the timing of a settlement is of significance in determining whether the jurisdiction under Section 482 should be exercised:
"29.7 Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain Page 7 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits This Court held, while dealing with an offence under Section 307 of the Penal Code that the following circumstances had weighed with it in quashing the First Information Report:
"33.We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., "respectable persons have been trying for a compromise up till now, which could not be finalized".
This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings...
13. In State of Maharashtra v Vikram Anantrai Doshi, (2014) 15 SCC 29, a bench of two learned Judges of this Court explained the earlier decisions and the principles which must govern in deciding whether a criminal proceeding involving a non- compoundable offence should be quashed. In that case, the respondents were alleged to have obtained Letters of Credit from a bank in favour of fictitious entities. The charge-sheet involved offences under Sections 406, 420, 467, 468, and 471 read with Section 120-B of the Penal Code. Bogus beneficiary companies Page 8 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 were alleged to have got them discounted by attaching fabricated bills. Mr Justice Dipak Misra (as the learned Chief Justice then was) emphasised that the case involved an allegation of forgery; hence the court was not dealing with a simple case where the accused had borrowed money from a bank, to divert it elsewhere . The court held that the manner in which Letters of Credit were issued and funds were siphoned off had a foundation in criminal law:
"26. .... availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the charge-sheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominatingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation."
The judgment of the High Court quashing the criminal proceedings was hence set aside by this Court.
14. The same principle was followed in Central Bureau of Investigation v Maninder Singh, (2016) 1 SCC 389 by a bench of two learned Judges of this Court. In that case, the High Court had, in the exercise of its inherent power under Section 482 quashed proceedings under Sections 420, 467, 468 and 471 read with Section 120-B of the Penal Code. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice Dipak Misra (as the learned Chief Justice then was) observed that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such a situation, the fact that the dispute had been settled with the bank would not justify a recourse to the power under Section 482:
"17. ... In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is well planned and was committed with a deliberate design with an eye of personal Page 9 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved."
15. In a subsequent decision in State of Tamil Nadu v R Vasanthi Stanley, (2016)1 SCC 376, the court rejected the submission that the first respondent was a woman "who was following the command of her husband and had signed certain documents without being aware of the nature of the fraud which was being perpetrated on the bank. Rejecting the submission, this Court held that:
"14.... Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score
15. .... A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system."
16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :
(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to Page 10 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;Page 11 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023
R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
17. Bearing in mind the above principles which have been laid down in the decisions of this Court, we are of the view that the High Court was justified in declining to entertain the application for quashing the First Information Report in the exercise of its inherent jurisdiction. The High Court has adverted to two significant circumstances. Each of them has a bearing on whether the exercise of the jurisdiction under Section 482 to quash the FIR would sub serve or secure the ends of justice or prevent an abuse of the process of the court. The first is that the appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973. The second is that the appellants have criminal antecedents, reflected in the chart which has been extracted in the earlier part of this judgment. The High Court adverted to the modus operandi which had been followed by the appellants in grabbing valuable parcels of land and noted that in the past as well, they were alleged to have been connected with such nefarious activities by opening bogus bank accounts. It was in this view of the matter that the High Court observed that in a case involving extortion, forgery and conspiracy where all the appellants were acting as a team, it was not in the interest of society to quash the FIR on the Page 12 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023 R/CR.MA/5593/2023 JUDGMENT DATED: 02/05/2023 ground that a settlement had been arrived at with the complainant. We agree with the view of the High Court."
8. Considering the allegations made in the impugned FIR, prima facie, the involvement of the petitioner in the alleged offence could not be ruled out. Thus, in view of the principle laid down in the aforesaid judgment and the facts and circumstances of the case, this Court does not find this to be a fit case where discretion under section 482 of Cr.P.C. could be exercised in favour of the petitioner.
9. For the foregoing reasons, the petition is dismissed.
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 13 of 13 Downloaded on : Sat May 06 20:36:50 IST 2023