Gujarat High Court
Mustafa Hakubha Khiyani vs State Of Gujarat on 1 October, 2020
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.MA/14188/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14188 of 2020
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MUSTAFA HAKUBHA KHIYANI
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MS. MOXA THAKKAR, APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 01/10/2020
ORAL ORDER
1. Heard Mr. Pratik Jasani, learned advocate for the applicants, Ms. Moxa Thakkar, learned A.P.P. appears for respondent No.1 - State through Video-conferencing.
2. At this stage, Mr.R.K. Dhruv, learned advocate has submitted that he has instruction to appear on behalf of respondent No.2 complainant and seeks permission to file Vakalatnama. Permission sought for is granted. Registry is directed to accept the Vakalatnama of the learned advocate Mr. Dhruv and place it on record.
2. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. With consent of learned advocates for the parties, the rule is fixed forthwith.
3. Considering the short dispute involved as also the settlement between the parties, the matter is taken up for final Page 1 of 6 Downloaded on : Mon Mar 01 06:28:19 IST 2021 R/CR.MA/14188/2020 ORDER hearing today.
4. The applicant has filed the present application for following reliefs:
"A. YOUR LORDSHIPS be pleased to issue an appropriate writ, order and/ or directions quashing and setting aside FIR No. 11208044200053/2020 registered with Pradumannagar Police Station, Rajkot and all proceedings arising therefrom, in the interest of justice;
B. Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay the further proceedings arising out of FIR No. 11208044200053/2020 registered with Pradumannagar Police Station, Rajkot and all proceedings arising therefrom, in the interest of justice;"
5. Pending investigation/trial, the learned advocates for the parties submitted that the matter has been amicably settled between the parties and therefore in view of the settlement the application may be allowed.
6. Today, the complainant i.e. respondent No.2 Mr. Kamleshbhai Govindbhai Nebhani as well as the injured victim Mr. Vijaybhai Chetanbhai Nebhani are present on videoconferencing. They have tendered their affidavits acknowledging settlement between the complainant and the applicants. It has been affirmed by the respondent No.2 - complainant and the victim that the complainant and the injured victim have no grievance against the applicants. The learned advocates for the applicants and respondent No.2 thus, would submit that looking to the nature of allegations against the applicants, even otherwise, no case against the applicants for the offences punishable under Sections 326, 323, 504, 506(2) and 114 of the IPC and Section 135 of the G.P. Page 2 of 6 Downloaded on : Mon Mar 01 06:28:19 IST 2021 R/CR.MA/14188/2020 ORDER Act is made out. It was, therefore, urged to quash the complaint and proceedings arising therefrom qua the present applicants.
7. The complainant in his affidavit at Page-5 has narrated as under:
"2. I say that I have gone through the memo of petition and the facts stated in the memo of petition are not disputed by me. At the outset, I say and submit that after filing of chargesheet, myself and the petitioners have realised that the incident had occurred at the spur of the moment following a trial issue which had taken a massive shape and therefore, with the intervention of elders, friends and family members, myself and the petitioners have resolved the dispute amicably and there is no heart-burning between us as on date. I say and submit that as the disputes and the grievances of both the sides have been amicably settled and I do not wish to prosecute the petitioners any further with respect to complaint being FIR filed by me which is registered as FIR No. 11208044200053/2020 with Pradumannagar Police Station, Rajkot for the offences punishable U/s. 326, 323, 504, 506(2) and 114 of the Indian Penal Code and Section 135 of Gujarat Police Act as well as all proceedings arising therefrom;
3. I say and submit that after lodging the impugned FIR, I realised that a minor dispute has taken a massive shape. After filing the impugned FIR, I realised the nature of hardships and inconvenience, socially and mentally, it will cause to both the sides, if the criminal proceedings continue and both the sides are subjected to rigors of criminal trial, it will immensely affect our future prospects of better life."
8. The injured victim Mr. Vijaybhai Chetanbhai Nebhani has stated in Para-2 and 3 of his affidavit as follows:
"2. I say that I have gone through the memo of petition and the facts stated in the memo of petition are not disputed by me. At the outset, I say and submit that the dispute and grievances of both the sides have been amicably settlemt myself and the complainant- Respondent No.2 herein do not wish to prosecute the petitioners any further with respect to the FIR No. 11208044200053/2020 filed by Respondent No.2, Page 3 of 6 Downloaded on : Mon Mar 01 06:28:19 IST 2021 R/CR.MA/14188/2020 ORDER which is registered with Pradumannagar Police Station, Rajkot for the offences punishable U/s. 307, 323, 504 and 114 of the Indian Penal Code, 1860 and Section 135(1) of Gujarat Police Act as well as all proceedings arising therefrom;
3. In the facts and circumstances as narrated above, I at my free will wish and desire am statingon oath that I do not wish to prosecute the criminal proceedings against the petitioners as the dispute between us has been amicably settled. I state that I have no objection if the FIR filed by Respondent No.2 which is registered with Pradumannagar Police Station, Rajkot for the offences punishable U/s. 326, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860 and Section 135 of Gujarat Police Act as well as all proceedings arising therefrom are quashed in the interest of justice."
9. The learned A.P.P. opposed the settlement contending that the offence in question are serious in nature, against the society and are not compoundable.
10. 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 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 Page 4 of 6 Downloaded on : Mon Mar 01 06:28:19 IST 2021 R/CR.MA/14188/2020 ORDER 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 between the victim and wrongdoer and whether to secure the ends Page 5 of 6 Downloaded on : Mon Mar 01 06:28:19 IST 2021 R/CR.MA/14188/2020 ORDER 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."
11. Considering the ratio as above, submissions of the learned A.P.P. cannot be countenanced. Mere invocation of the provisions for serious offences would not necessarily lead to inference of commission of such offences. It is noticed that in the complaint, half-hearted allegation against the applicants is made and further, when respondent No.2 - complainant has made intention of not supporting the prosecution case, clear by filing an affidavit, chances of prosecution succeeding against the applicants are very bleak. Only achievement in such a trial would be wastage of public time, money and energy. Under the circumstances, it is deemed appropriate to acknowledge the settlement placed on record by way of affidavit by respondent No.2 - complainant and the injured victim.
12. Accordingly, the settlement is acknowledged and the complaint and all connected proceedings arising therefrom, qua the present applicants, are quashed. Rule is made absolute with no order as to costs. Direct service is permitted.
(DR. A. P. THAKER, J) SAJ/ SALIM Page 6 of 6 Downloaded on : Mon Mar 01 06:28:19 IST 2021