Gujarat High Court
Vijay Odhabhai Zaverbhai Dharjiya vs State Of Gujarat on 29 July, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/10347/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10347 of 2020
==========================================================
VIJAY ODHABHAI ZAVERBHAI DHARJIYA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. BHAVESH RATHOD WITH MR MAULIK M SONI(7249) for the
Applicant(s) No. 1
MR NIMESH M PATEL(6780) for the Respondent(s) No. 2
MS SHRUTI PATHAK, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/07/2020
ORAL ORDER
1. Rule. Ms. Shruti Pathak, learned Additional Public Prosecutor and and Mr. Nimesh Patel, learned advocate for respondent No.2, waives service of notice of rule on behalf of the respective respondents.
2. This petition has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the first information report bearing C.R. No.I-31 of 2019 registered with Babra Police Station, Amreli for offfences punishable under sections 363 and 366 of IPC and section 18 of the Protection of Children from Sexual Offences Act, 2012 and the proceedings initiated pursuant thereto.
3. Mr. Bhavesh Rathod, learned advocate appearing for Mr. Maulik Soni, learned advocate for the applicant, submitted that Page 1 of 7 Downloaded on : Thu Jul 30 00:18:03 IST 2020 R/CR.MA/10347/2020 ORDER the parties have settled the dispute amicably outside the Court and that there remains no grievance between them. It was submitted that both the families had decided to enter into a marriage relationship whereby, the applicant was to get married with the daughter of the original complainant and the sister of the applicant was to get married to the son of the original complainant. However, some differences arose between the two families and therefore, the sister of the applicant herein and the son of the original complainant decided to elope. The daughter of the original complainant carried the belief that her family would get her married to someone else against her wish and consent. Therefore, she left her home with her brother. However, the impugned complaint came to be registered.
3.1 It was submitted that the applicant and the daughter of the complainant got married on 08.07.2020 and their Marriage Certificate has been produced on record. It was submitted that in the larger interest of both the families, the impugned complaint may be quashed and set aside. It was submitted that both the applicant and the daughter of the original complainant are present in the Office and that the Court may verify the above aspects directly through the virtual medium.
4. Mr. Nimesh Patel, learned advocate for respondent No.2, original complainant, concurred with the factum of settlement of the dispute and of marriage of the applicant with the daughter of respondent No.2.
5. The virtual Court verified the factum of settlement with the parties, who were present in Office of learned advocate Mr. Bhavesh Rathod. The respondent no.2, original complainant, Page 2 of 7 Downloaded on : Thu Jul 30 00:18:03 IST 2020 R/CR.MA/10347/2020 ORDER affirmed about the execution of the Affidavit dated 14.07.2020 before the Notary wherein the terms of settlement have been recorded. The respondent no.2, original complainant, categorically stated that she has no grievance against the applicant and that she has no objection to the quashment of the impugned first information report filed by her.
6. Ms. Shruti Pathak, learned Public Prosecutor, submitted that the victim was a minor at the relevant time and that there is no averment in the impugned complaint that the victim had left her house with her brother. It was, accordingly, urged that the impugned complaint may not be quashed.
7. This Court has heard the learned advocates on both the sides and has perused the material on record. In the Affidavit dated 14.07.2020 filed by respondent no.2, original complainant, it has been categorically averred that the dispute with the applicant has been amicably resolved with the help of friends and relatives and that the impugned complaint had been filed because of some misunderstanding and misconception. It is also averred that there is no ill-will between the parties and that the applicant and the daughter of the original complainant have got married on 08.07.2020 and have been residing happily.
8. It is true that the offence alleged is non-compoundable. Considering the principle laid down by the Apex Court in the case of Gian Singh v. State of Punjab and another reported in 2012 (10) SCC 303, the present matter would fall under the criteria laid down therein. In paragraph-61 of the said judgment, it has been observed thus:
Page 3 of 7 Downloaded on : Thu Jul 30 00:18:03 IST 2020R/CR.MA/10347/2020 ORDER "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 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 victims 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 flavour 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 Page 4 of 7 Downloaded on : Thu Jul 30 00:18:03 IST 2020 R/CR.MA/10347/2020 ORDER 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put 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."
9. In the case of State of Madhya Pradesh v. Laxmi Narayan and others reported in (2019) 5 SCC 688, the Apex Court had the occasion to consider the issue as to whether an FIR lodged for the 2 offences punishable under sections 307 and 34 IPC could be quashed on the basis of the settlement between the parties. While considering the said issue, the Apex Court observed in para-13 thus:
"13. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:
(i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-
compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
(ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;
(iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be Page 5 of 7 Downloaded on : Thu Jul 30 00:18:03 IST 2020 R/CR.MA/10347/2020 ORDER quashed merely on the basis of compromise between the victim and the offender;
(iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;
(v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non- compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc."
Page 6 of 7 Downloaded on : Thu Jul 30 00:18:03 IST 2020R/CR.MA/10347/2020 ORDER 10. In the present case, the Affidavit of the original
complainant, respondent no.2 herein, regarding settlement of the dispute has been executed on 14.07.2020. The applicant and the daughter of the complainant got married on 08.07.2020. Admittedly, the dispute is a private and personal affair. In view of the settlement arrived at between the parties, there exists no scope for any further proceeding in the matter. The continuance of proceedings would lead to wastage of precious judicial time as there would remain no possibility of any conviction in the case. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised for securing the ends of justice.
11. In the result, the petition is allowed. The impugned first information report bearing C.R. No.I-31 of 2019 registered with Babra Police Station, Amreli and the proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.
(GITA GOPI,J) NEHA GUPTA Page 7 of 7 Downloaded on : Thu Jul 30 00:18:03 IST 2020