Gujarat High Court
Sohil Alibhai Bambhaniya vs State Of Gujarat & on 20 October, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/28017/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 28017 of 2016
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SOHIL ALIBHAI BAMBHANIYA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR CHIRAG H PAREKH, ADVOCATE for the Applicant(s) No. 1
MR RONAK RAVAL, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 20/10/2016
ORAL ORDER
1. This is a petition by the petitioner under Article 226 of the Constitution of Indian and under Section 482 of the Code of Criminal Procedure, seeking quashment of the complaint being I-C.R. No.17/2016, registered with Liliya Police Station under Sections 363 and 366 of the Indian Penal Code.
2. The petitioner, who is the original accused, is following 'Islam' and that appears to be the main cause of resistance on the part of Respondent No.2 and his community. The parties have, however, chosen to amicably settle all their disputes now, and therefore, they have approached this Court seeking termination of the criminal prosecution pending between the parties.
3. Respondent No.2-the original complainant, namely Anandbhai Vibhabhai Shiroliya), who happens Page 1 of 5 HC-NIC Page 1 of 5 Created On Sat Dec 03 00:26:24 IST 2016 R/CR.MA/28017/2016 ORDER to be the father of the prosecutrix, is present before this Court. Respondent No.2 stated that the prosecutrix was firstly engaged, when she was four years of age. Thereafter, once again, her engagement took place. The prosecutrix has studied upto Standard-7.
4. The prosecutrix is also brought before this Court. She apprehends any personal harm to her or a forcible marriage.
5. This Court, made inquires from the prosecutrix and also made a request to the learned Advocate, Ms. Kruti Shah, who is present in the Court, to assist the Court. As the prosecutrix is scared of her life and or of forcible marriage, Respondent No.2 shall FILE a pursis in the form of an undertaking before this Court that till the prosecutrix attains the age of majority, no marriage shall take place. She shall also not be forcibly married elsewhere.
6. Here, it may also be noted that the prosecutrix had also shown her desire to talk to the learned Advocate, Ms. Kruti Shah, over telephone on a regular basis so that the prosecutrix can confide in her and can ventilate her grievances, if there arise any.
7. Since, the prosecutrix apprehends that either she shall be done away or shall be forcibly Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Dec 03 00:26:24 IST 2016 R/CR.MA/28017/2016 ORDER married elsewhere, to ensure that no harm is caused to the prosecutrix either physically or otherwise, the IO concerned is directed to ENSURE her safety. Further, a lady protection officer of the area concerned shall also visit the prosecutrix EVERY WEEK and shall ensure her protection.
8. The aforesaid arrangement shall continue for a period of SIX MONTHS from today.
9. Under the circumstances, here, it would be profitable to refer to the observations made by the Hon'ble Apex Court in the case of GIAN SINGH VS. STATE OF PUNJAB AND ANR., (2012) 10 SCC 303, wherein, at Paragraph-61, the Apex Court observed 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 Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Dec 03 00:26:24 IST 2016 R/CR.MA/28017/2016 ORDER 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 Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Dec 03 00:26:24 IST 2016 R/CR.MA/28017/2016 ORDER 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."
10. In the result, while QUASHING the impugned complaint with all consequential proceedings, the matter is kept ALIVE to ensure the safety of the prosecutrix.
11. At this stage, this Court places on record the services rendered by the learned Advocate, Ms. Kruti Shah.
12. S.O. to 22ND NOVEMBER, 2016. Direct service is permitted.
(MS SONIA GOKANI, J.) UMESH Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Dec 03 00:26:24 IST 2016