Gujarat High Court
Bachubhai Mangalbhai Chavda vs State Of Gujarat & on 9 January, 2013
Author: N.V.Anjaria
Bench: N.V.Anjaria
BACHUBHAI MANGALBHAI CHAVDA....Applicant(s)V/SSTATE OF GUJARAT R/CR.RA/160/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 160 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE N.V.ANJARIA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ BACHUBHAI MANGALBHAI CHAVDA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1 MR PAWAN A BAROT, ADVOCATE for the Respondent(s) No. 2 PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 09/01/2013 ORAL JUDGMENT
On 4.12.2012, the following order was passed in the present revision application.
1. The present Revision arises out of the judgment and order of the learned Chief Judicial Magistrate, Rajkot confirmed by the learned Additional Sessions Judge, Second Fast Track Court, Rajkot convicting the accused No.1-applicant herein for the offence under Section 498-A of the Indian Penal Code. On the record of the Revision Application, an affidavit dated 16th July, 2012 affirmed by one Devuben Bachubhai Chavda, who happens to be wife of the applicant, wherein it is stated inter alia that disputes between spouses no longer continue and they are staying together.
2. The applicant Bachubhai Mangalbhai Chavda is present in the Court. Wife Devuben Bachubhai Chavda is also personally present in the Court as stated by the respective learned advocates representing them. The parties present confirm of they having amicably resolved the disputes and having been staying together.
1.1 The matter was adjourned to today as was requested by learned advocate for the parties.
2. In view of the fact that the parties have settled their disputes, learned advocate for the respondent no.2 original complainant jointly with learned advocate for the applicant submitted that offence may be permitted to be compounded.
3. As per the complaint filed, the applicant-original accused was tried under sections 452, 323, 324, 506(2) and 114 and 498A of IPC. However, accused was acquitted of all other charges except the offence under sec. 498A, IPC. For the offences under section 498 he was convicted and came to be sentenced to three years simple imprisonment and to pay fine with default stipulation. The offence under section 498A, IPC having been not included in the offences under section 320 of the Code of Criminal Procedure, 1973 (hereinafter referred as the Code ) is not compoundable as such. It was however, submitted that since the parties are at peace and have settled the dispute, this Court may permit the compounding of the offence in the interest of the justice.
4. The parties are husband and wife. Respondent No.2 - wife filed a case against husband, alleging interalia that accused illegally trespassed into the house and through her out of the house, and then harassed her physically and mentally. The trial led to conviction as above and the same is confirmed by the lower appellate court.
5. An affidavit on behalf of Respondent No.2 wife - original complainant dated 16.07.2012 is produced on record wherein the original complainant confirms about the settlement having been arrived at. In the affidavit, the wife has stated as under.
I further say and submitted that, I herein respondent No.2 original complainant and also being wife of present petitioner No.1. I say and submit that now I have no conflict and any kind of grudge against the present petitioner No.1 husband and further stated that due to the intervention of family members and head of the societies the dispute between husband and wife is now amicably settled and being a original complainant I do not want further proceed the proceedings of the original complainant lodged before Pradhumannagar Police Station being C.R.No.I-84 of 1996.
I further say and submitted that now onwards I am residing with my elder son namely Rajesh Chavda and his wife Darshnaben Rajeshbhai Chavda and also with younger daughter Dharmishthaben. I further say and submit that now onwards there is no dispute remaining between me and present petitioner No.1 and if the proceedings against him is being quashed and set aside I have no objection. I further say and submitted that, if the present Criminal Revision Application No. 160 of 2011 is being allow in the favour of present petitioner No.1 i.e. husband. I have no objection and further stated that I do not want to further prosecute the original accused No. 1 i.e. present petitioner No.1 (Husband).
I further say and submitted that, the present issue is now being settled and compromised amicably there is not any pressure or undue influence has been imposed.
5.1 From the above and upon enquiries made by the Court from the applicant and respondent No.2 wife, who were personally present on the previous date i.e. 4.12.2012, as recored in previous order, the Court was satisfied on the aspect that the parties have willingly settled their dispute. The dispute was essentially matrimonial in nature. It transpires that the parties are now not at conflict against each other and have no grievance or compliant of any kind surviving between them.
6. The offence under Sec. 498A, IPC prayed to be compounded is not one included under section 320 of the Code. Learned advocate for the applicant submitted that in the facts and circumstances of the case, the Court may exercise its inherent powers under section 482 of the Code and may permit compounding of the offences in the facts and circumstances of the case.
6.1 In Gian Singh vs. State of Punjab and Another [(2012) 10 SCC 303], the Apex court has considered the relative scope of section 482 and section 320 of the Code and has laid down the parameters as to in what kind of cases and facts and circumstances, the High Court can advert to its inherent power under section 482 of the Code to quash criminal proceedings. The Supreme Court examined previous decisions of the Apex Court in B. S. Joshi vs. State of Haryana [(2003) 4 SCC 675], Nikhil Merchant vs. CBI [(2008) 9 SCC 677] and Manoj Sharma vs. State [(2008) 16 SCC 1].
6.2 In Gian Singh (supra), it is held, 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.
(para 57) 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 well-being of society and it is not safe to leave the crime-doer 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.
(para 58) 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. 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 pre-dominatingly 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.
(para 61) 6.3 It was also observed that exercise of inherent powers by the High Court would depend upon the facts and circumstances of each case. It is not permissible to have a straight jacket formula. No precise and inflexible guidelines can be provided.
7. Having considered and assessed on the basis of the above guidelines and the criteria provided by the Supreme Court in Gian Singh (supra), the conviction of the applicant accused was under section 498A of IPC, which had matrimonial dispute in its origin. It was upon complaint of the respondent No.2 - wife that she was being treated with cruelty. The cruelty was alleged with reference to the trespass. It was further alleged that since last five years, the applicant was staying with another woman. The dispute being matrimonial, was a private in nature. Now, the circumstances have changed and amiability between the spouses has been restored, as is evident from the settlement. As stated in the affidavit by complainant-wife, she has been staying with elder son. She has further stated that she has no conflict nor any grudge against the petitioner-husband. Thus, she has now been settled in her personal and family life.
7.1 The settlement has brought peace in the family and the parties who were once aggrieved, are now contented and are willing to lead harmonious life. In such circumstances, continuance of criminal proceedings will not serve any purpose. On the contrary, it would be harassing and also counteractive to the congenial relationship which is restored between the parties.
8. Taking into account the facts and circumstances obtaining in the case and considering the observations of the Apex Court in Gian Singh (supra), the nature of offence in the instant case being a private matrimonial dispute which is of not serious nature such as the offences like murder, rape, dacoity, etc. which have harmful effect on the public or effect of endangering and threatening the well-being of the society, it would not have harmful effect on the public when dispute essentially arises out of private, if allowed to be compounded; when the same is amicably settled and parties have buried the past. It is, therefore, just and proper and would be in larger interest of justice as well as for family peace of the parties that the offence is permitted to be compounded by exercising inherent powers. Accordingly, the proceedings reflected in the present criminal proceedings carrying in this criminal application are terminated by directing compounding of the offences.
9. As a result, the offence under section 498A, IPC is permitted to be compounded for the reasons recorded above. As a result the judgment and order dated 20.03.2009 of learned Chief Judicial Magistrate, Rajkot convicting the applicant for the offence under section 498A and sentencing him to simple imprisonment for one month and to pay fine of Rs. 1000/- in criminal case No. 1943 of 2006 as well as the confirming judgment of the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot are hereby quashed and set aside.
Rule is made absolute in the above terms.
(N.V.ANJARIA, J.) cmjoshi Page 9 of 9