Gujarat High Court
Vaishali Nimesh Thakker vs State Of Gujarat on 2 September, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1856
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
R/CR.MA/11637/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11637 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VAISHALI NIMESH THAKKER
Versus
STATE OF GUJARAT
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Appearance:
BHARATKUMAR A DESAI(8513) for the Applicant(s) No. 1,2,3
MR. ANAND V THAKKAR(7091) for the Respondent(s) No. 2
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 02/09/2020
ORAL JUDGMENT
1. The Applicants has filed this Application under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the FIR being I-CR No. 11191001200071 registered with Anandnagar Police Station, Ahmedabad for the offences punishable under Sections 384, 406, 420, 448, 506(1) and 120B of Page 1 of 9 Downloaded on : Wed Sep 02 23:37:40 IST 2020 R/CR.MA/11637/2020 JUDGMENT the Indian Penal Code.
2. Heard learned Advocate Mr.Bharatkumar A Desai for the Applicant, learned APP Mr. HK Patel for the Respondent - State of Gujarat, through video conference. Learned advocate Mr. Anand V Thakkar for respondent no2 has not remained present.
3. Learned Advocate for the Applicant has placed heavy reliance upon the various judgments of the Hon'ble Supreme Court as well as this Court that in catena of decisions, the Hon'ble Supreme Court and this Court has permitted quashing of the FIR upon amicable settlement time and again inter se / between the parties. In support of this argument, learned Advocate for the Applicant has placed reliance on the following judgments:
3.1. Learned advocate for the applicant has placed reliance upon four different authorities of Hon'ble Supreme Court and this Court, viz. (i) The Hon'ble Supreme Court in case of Narender Singh & Others vs. State of Punjab and Another reported in (2014) 6 SCC 466, (ii) Iqbal Dawood Hala Vs. State of Gujarat, reported in 2013 (0) AIJEL-HC 229756, (iii) a judgment in case of Janki Chintan Shah Vs. State of Gujarat, reported in 2014 (0) AIJEL-HC 231973 and (iv) Arun Singh And Others vs. State of Uttar Pradesh Through Its Secretary And Another, reported in (2020) 3 Supreme Court Cases 736.
4. The affidavit in terms of settlement deed sworn by Respondent No.2 -
(Original Complainant) dated 09.03.2020 is produced on record, the same reads as under:
"Whereas :
The Party of the first(Complainant) part and Second Part conducted as settlement meeting/ conference. The said meeting was conducted by and between the parties and their known persons thereafter they have mutually decided to amicably settle the issue/ dispute as arisen by and between the concerned parties, upon certain Page 2 of 9 Downloaded on : Wed Sep 02 23:37:40 IST 2020 R/CR.MA/11637/2020 JUDGMENT Terms and conditions:
The conditions of the said proposed settlement deed are imbibed as under :
(a) The Party of the First and Party of the Second with the unknown persons respectively conducted the meeting and decided to resolve the dispute amicably.
(b) The Party of the First Part and the Party of the Second Part have willfully consented and decided to settle the issue and dispute as arisen by and between them for their better future professional relationship and repetition.
(c) The Party on the First Part (complainant) is the owner of Flat being A/403 Seppal Garnet, besides Platnem Hotel, Anand Nagar, 100 Ft. Road Settlite, Ahmedabad having AMC Tenament No.0628-05-5068- 0001-U. Having Torrent Power Meter No.3326243.
(d) The Party of the First Part (Complainant) has entered into leave and license agreement dated 08.04.2017 with the Party of Second Part (accused) for an amount of license fees agreed between both the parties from 01.04.2018 to 21.03.2018.
(e) After the expiration of leave and license agreement the Party on the First Part insisted the Party on the Second Part to vacate the premises owned by the complainant and also to pay the due license fees.
(f) The Party on the Second Part send a false and frivolous legal notice dated 23.10.2019.
(g) Subsequently the Parties on both Parts arrived at a settlement and the peacefull and vacant possession of the said premises was handed over to the complainant on 28.01.2020 by the accused.
(h) Thereafter party on Second part have been legally entered the premises to took over the possession of the premises and also demanded money to vacate the premises.
(i) Such acts by the accused herein compelled the Party on First Part to file an FIR numbered 24/2020 for illegal tresspass and extortion on 06.03.2020 before Anand Nagar Police Station.
(j) Thereafter the Parties on both the Parts arrived at a settlement and subsequently the peaceful and vacant possession of the said premise was handed over to the parties on the First Part on 09.03.2020 pursuant to the aforementioned letter of handing over possession dated 28.01.2020. The Party on Second Part has also vacated all the belonging, goods luggage of their on the aforementioned date.
(k) The Party on First Part paid the party on the Second Part an amount of Rs.3 Lakhs in cash as full and final consideration towards settlement.
(l) The complainant on getting the possession of premises has agreed with the accused that both the parties together will file consent quashing petition for quashing of the FIR."
Page 3 of 9 Downloaded on : Wed Sep 02 23:37:40 IST 2020R/CR.MA/11637/2020 JUDGMENT
5. In view of the order passed by the Coordinate Bench as aforesaid and thereafter further development in the matter as come forward by way of an Affidavit in terms of Settlement Deed by the Respondent No.2 -Kishore Acharya - Original Complainant, learned Advocates appearing for the parties have submitted that now the cause does not survive and therefore the FIR may be quashed and set aside.
6. The Hon'ble Supreme Court (i) in case of Narender Singh & Others vs. State of Punjab and Another reported in (2014) 6 SCC 466 has observed as under:
"8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary powers to refuse to compound the offence. However, compounding under section 320(1) of the Code is permissible only in minor offences or in non- serious offences. Likewise, when the parties reach settlement in respect of the offences enumerated in section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. Insofar as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of theses powers were described by this Court in B.S. Joshi vs. State of Haryana which has been followed and further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter."
12.Thereafter, the Court summed up the legal position in the following words:
"61. 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 Page 4 of 9 Downloaded on : Wed Sep 02 23:37:40 IST 2020 R/CR.MA/11637/2020 JUDGMENT 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 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 victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put Page 5 of 9 Downloaded on : Wed Sep 02 23:37:40 IST 2020 R/CR.MA/11637/2020 JUDGMENT 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."
The Court in Gian Singh case was categorical that in respect of serious offences or other offences of mental depravity or offence of merely decoity under special statute, like the prevention of Corruption Act or the offences committed by public servant while working in that capacity. The mere settlement betweent he parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such henious crime cannot have imprimatur of the Court."
(ii) The Coordinate Bench (Coram: K.M. Thaker, J.) in a judgment in case of Iqbal Dawood Hala Vs. State of Gujarat, reported in 2013 (0) AIJEL-HC 229756, held as under:
"Code of Criminal Procedure, 1973-S.482-Indian Penal Code, 1860-S.504, 143, 147, 148, 149, 326 - Arms Act, 1959 - S.25(1)
(c)- Bombay Police Act, 1951-S.135(1)-quashing of the criminal complaint- dispute between the parties is of private and personal nature - complainant has admitted that the complainant and original accused i.e. the applicants have voluntarily settled the dispute - complainant - respondent No.2 has also admitted that he does not want to prosecute the complaint further qua the applicants - held no fruitful purpose will not be served in continuing the prosecution of the complaint - fit case for exercising powers u/s. 482 of the Code to prevent abuse of the process of Court - criminal complaint quashed - application allowed."
(iii) The Coordinate Bench (Coram: R.M. Chhaya, J.) in a judgment in case of Janki Chintan Shah Vs. State of Gujarat, reported in 2014 (0) AIJEL-HC 231973, held as under:
"Code of Criminal Procedure, 1973 - S. 482 - Indian Penal Code, 1860 - S. 120B, 307, 326 - Arms Act, 1959 - 25(1)(b), 25(1)(a) - quashing of complaint - applicant was not named as an accused in the complaint but was shown as witness - however later on investigating officer joined him as an accused - compromise and settlement between the parties - both the sides present before the Court - complainant filed an affidavit in support of the applicant/accused and confirmed about the Page 6 of 9 Downloaded on : Wed Sep 02 23:37:40 IST 2020 R/CR.MA/11637/2020 JUDGMENT settlement - denial of allegation by the complainant against the applicant - no objection to the complainant if complaint is quashed qua applicant only - case of narinder Singh (Supra) referred and relied upon - fit case to exercise jurisdiction u/s 482 of the Code - complaint qua applicant quashed - application allowed."
(iv) The Hon'ble Supreme Court in case of Arun Singh And Others vs. State of Uttar Pradesh Through Its Secretary And Another, reported in (2020) 3 Supreme Court Cases 736, has partly allowed the Criminal Appeal wherein quashing petition was allowed under Section 482 of the Cr.P.C. and it was held that when there is abuse of process of law the FIR is required to be quashed.
(v) The Coordinate Bench (Coram: Sonia Gokani,J) in a judgment in case of Kalubhai Virabhai Thakor (Mauluna) v. State of Gujarat, 2019 (0) AIJEL- HC 240101 (Criminal Miscellaneous Application No. 1399 of 2019) has observed as under:
"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, Page 7 of 9 Downloaded on : Wed Sep 02 23:37:40 IST 2020 R/CR.MA/11637/2020 JUDGMENT 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 proceedings which in all likelihood would end in acquittal, in any case."
7. Upon all such authorities, which have been submitted by the learned advocate for the applicants, authorities nos. (i) in case of Narender Singh & Others vs. State of Punjab and Another (ii) Iqbal Dawood Hala Vs. State of Gujarat and (iii) Janki Chintan Shah Vs. State of Gujarat are fully applicable to the present case. In addition to that this Court has also referred to the latest order passed by the co-ordinate Bench (Coram: Sonia Gokani,J) in case of Kalubhai Virabhai Thakor (Mauluna) v. State of Gujarat, 2019 (0) AIJEL- HC 240101 and therefore this Court is of the view that when the parties have amicably settled the disputes in such offences, there is no requirement of trial and same would be against the ends of justice. Therefore, FIR is required to be quashed under section 482 of the Cr.P.C.
8. This Court has also taken into consideration the Affidavit in terms of settlement deed filed by original complainant. Therefore by holding the FIR and the further investigation and further judicial process, same would be futile and it would be an abuse of process of law and ultimately it would not serve the purpose of law. Simultaneously, it would not meet the ends of justice. Therefore, in special case, it would be in the best interest of justice to quash the FIR. Further, as per the plain reading of Section 482 of Cr.P.C. also, the extraordinary powers can be exercised if there is an abuse of process of law or to seek ends of justice. Hence, it would not be in fitness to continue the judicial process and therefore also the FIR is required to be quashed along with the consequential relief or proceedings, if any, against the parties concerned and Page 8 of 9 Downloaded on : Wed Sep 02 23:37:40 IST 2020 R/CR.MA/11637/2020 JUDGMENT with reference to the FIR which is registered in this petition.
9. This Court has referred to the land mark decision of Hon'ble Supreme Court in case of Parbatbhai Aahir vs. State of Gujarat reported in 2017 SCC online SC 1189 and in case of State of Madhyapradesh vs. Laxmi Narayan and Others reported in (2019) 5 SCC 688. Normally, this Court would not entertain the quashing petition in serious offences like offences under Sections 376 and 302 of the IPC. But, in the present case offfences which are registered upon the applicant are minor which is discussed earlier. Therefore, with respect, latest law is not applicable to the present case.
10. In view of the aforesaid discussions and the submissions made by the learned Advocates appearing for the parties, the present petition deserves to be allowed and accordingly stands allowed. The FIR being I-CR No. 11191001200071 registered with Anandnagar Police Station, Ahmedabad for the offences punishable under Sections 384, 406, 420, 448, 506(1) and 120-B of the Indian Penal Code is hereby quashed and set aside.
11. Rule is made absolute accordingly with no order as to costs.
(DR. ASHOKKUMAR C. JOSHI,J) prk Page 9 of 9 Downloaded on : Wed Sep 02 23:37:40 IST 2020