Gujarat High Court
Mayurbhai Devjibhai Parmar vs State Of Gujarat on 25 September, 2020
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.MA/23617/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23617 of 2019
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MAYURBHAI DEVJIBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
MR SURAJ MAHIDA WITH MR P P MAJMUDAR(5284) for
the Respondent(s) No. 2
MS MAITHILI MEHTA APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 25/09/2020
ORAL ORDER
1. Heard Mr.Jasani, learned advocate for the applicant, Mr.Mehta, learned Additional Public Proecutor for respondent No.1 - State and Mr.Mahida, learned advocate for Mr.Majmudar, learned advocate for respondent No.2 - complainant through Video Conferencing.
2. RULE. The respondents waive service.
3. The present petition has ben filed by the petitioner - original accused who is convicted by the Trial Court as well as Appellate Court for the following reliefs:-
(A) YOUR LORDSIHPS be pleased to issue an Page 1 of 8 Downloaded on : Sat Sep 26 03:04:23 IST 2020 R/CR.MA/23617/2019 ORDER
appropriate writ, order and/or directions quashing and setting aside the judgment and order of conviction and sentence dated 17.02.2017 passed by the lerned 5th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.2352 of 2020 as well as as all proceedings arising therefrom; and further be pleaed to allow Criminal Appeal No.227 of 2018 pending in the Court of learned 12th Additional District Judge, Rajkot in the interst of justice;
(B) Pending admission, hearing and final disposal of this petition, YOUR LORDSIHPS be pleased to stay the judgment and order dated 17.02.2017 passed by the lerned 5th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.2352 of 2020 as well as as all proceedings arising therefrom;
(C) YOUR LORDSIHPS be pleased to grant such other and further orders, as may be deemed fit and proper in favour of the petitioner by this Hon'ble Court in the interest of justice;
4. During the course of hearing, the complainant has has acknowledged that the compromise has already been arrived at between him and the petitioner herein. He has submitted that he has already filed necessary settlement purshis before the Appellate Court on 12.07.2019. He has submitted tha he has no objection if the judgment and order of the Trial Court and pending appeal before Appellate Court are set aside and the petitioner is set at liberty from the charges levelled against him.
5. On perusal of the materials placed on record, it is found that the complainant has specifically mentioned before the Appellate Court, as per the purshis in Criminal Page 2 of 8 Downloaded on : Sat Sep 26 03:04:23 IST 2020 R/CR.MA/23617/2019 ORDER Appeal No.227 of 2018 at Exhibit 29 that there was settlement between them and he has already received the compensation for the injury sustained by him from the accused and, therefore, he has no objection if the petitioner herein is acquitted from the charges levelled against him.
6. In the present case, the original complainant has filed the affidavit which is at page No.61, wherein in paras-2 and 3 he has stated as follows:-
2. I say that I have gone through the memo of petition and facts stated in the memo of petition are not disputed by me. At the outset, I say and submit that the disputes and grievances of both the sides have been amicably settled and I do not wish to prosecute the petitioner any further with respect to the judgment and order of conviction and sentence dated 17.02.2017 passed by the learned 5th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.2352 of 2002 in connection with the FIR registered as C.R. No.I-
68/2002 with Gandhigram Police Station, Rajkot for the offences punishable u/s. 326, 323, 504, 188 and 114 of the Indian Penal Code, 1860 as well as all proceedings arising therefrom.
3. I say and submit that I have already declared before the learned lower Appellate Court in the proceedings of Criminal Appeal No.227 of 2017 by way of filing a compromise purshis stating that I have no grievance against the petitioner and I have no objection in the event the Hon'ble Lower Appellate Court quashes the judgment and order of conviction and sentence against the petitioner. I say and submit that similarly, my son has also fild an affidavit before the Hon'ble Lower Appellate Court reiterating the fact that the matter has been amicably resolved and he has no objection if the Criminal Appeal preferred by the Page 3 of 8 Downloaded on : Sat Sep 26 03:04:23 IST 2020 R/CR.MA/23617/2019 ORDER petitioner is allowed and the judgment and order of conviction and sentence is set aside. I say and submit that I have no grievance against the petitioner and as the petitioner is my neighbour, we have forgotten all our disputes and heart burns. I say and submit that in the said facts and circumstances, this Hon'ble Court may be pleased to allow the present petition as prayed for.
7. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.
8. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face Page 4 of 8 Downloaded on : Sat Sep 26 03:04:23 IST 2020 R/CR.MA/23617/2019 ORDER do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section
482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.
9. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence.
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 Page 5 of 8 Downloaded on : Sat Sep 26 03:04:23 IST 2020 R/CR.MA/23617/2019 ORDER 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 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 Page 6 of 8 Downloaded on : Sat Sep 26 03:04:23 IST 2020 R/CR.MA/23617/2019 ORDER 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."
11. Considering the material placed on record, it is clearly found that there is amicable settlement arrived at between the parties and, therefore, the relief sought for by the petitioner is required to be granted in exercise of power under Section 482 of the Criminal Procedure Code.
12. Accordingly, the settlement is acknowledged and the judgment and order of conviction and sentence dated 17.02.2017 passed by the learned 5 th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.2352 of 2002 and all connected proceedings arising therefrom, filed against the present petitioner and the proceedings pending before pending in the Court of learned 12 th Additional District Judge, Rajkot the Criminal Appeal No.227 of 2018, are quashed and set aside. The petitioner is hereby acqutted from all the charges levelled against them. Rule is made absolute with no order as to costs. Direct service is permitted.
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13. The Trial Court as well as Appellate Court be informed accordingly.
(DR. A. P. THAKER, J) VR PANCHAL / SALIM Page 8 of 8 Downloaded on : Sat Sep 26 03:04:23 IST 2020