Gujarat High Court
Minor Hitesh Sunilbhai Dhameliya ... vs State Of Gujarat on 5 April, 2018
Author: S.H.Vora
Bench: S.H.Vora
R/CR.MA/6259/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6259 of 2018
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MINOR HITESH SUNILBHAI DHAMELIYA THROUGH SUDHABEN
SUNILBHAI DHAMELIYA
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN K DAVE(3296) for the PETITIONER(s) No. 1,2,3,4
for the RESPONDENT(s) No. 2
MS NISHA THAKORE, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 05/04/2018
ORAL ORDER
1. Learned A.P.P. Ms. Nisha Thakore appears for respondent No.1 - State.
2. Learned advocate Ms. Shvani Modi states at bar that she has instructions to appear for respondent No.2 - complainant and seeks permission to file her appearance on behalf of respondent no.2 - complainant.
3. Permission is granted.
4. Rule. The respondents waive service.
5. Considering the short dispute involved as also the settlement between the parties, the matter is taken up for final hearing today.
6. An F.I.R. came to be registered at C.R.No.I- 29 of 2018 Page 1 of 5 R/CR.MA/6259/2018 ORDER with Rajkot University Police Station, Rajkot, complaining that on 25.02.2018 at 8 o' clock in the evening, the complainant was sitting his friends namely Mr. Hitesh and Mr. Allauddin near Shankar Temple and were messaging on Instagram in between when the complainant stopped his friend Mr. Hitesh from messaging, the applicant no.1 started quarrel wit the complainant and the complainant left his home and at around 11 o' clock, the complainant reached Zaker Hussain School to meet his friend Mr. Hitesh and he met his friend Mr. Hitesh and after that few other friends of Mr. Hitesh came there and started quarrel with him regarding the message quarrel by abusing complainant and thereafter, free fight started between the complainant and applicant no.1 and his friends and thereafter, applicant no.1 started beating the complainant from back side and they had knife in their hand with which they gave 2 to 3 blows to the complainant on his left hand, back and butt because of which he started bleeding and he somehow managed to flea away and reached his home and thereafter, his neighbour namely Mr. Ajaybhai called 108 and took him to the government hospital.
7. Before this Court, the complainant i.e. respondent No.2 tenders affidavit acknowledging settlement between the complainant and the applicants which is ordered to be taken on record. It has been affirmed by the respondent No.2 - complainant that the complainant has no grievance against the applicants. The learned advocates for the applicants and respondent No.2 thus, would submit that looking to the nature of allegations against the applicants, even otherwise, no case against the applicants for the offences punishable under Sections 323, 504, 324 and 114 of the IPC and Section 135(1) Page 2 of 5 R/CR.MA/6259/2018 ORDER of the G.P. Act is made out. It was, therefore, urged to quash the complaint and proceedings arising therefrom qua the present applicants.
8. The learned A.P.P. opposed the settlement contending that the offence in question are serious in nature, against the society and are not compoundable.
9. 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 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 Page 3 of 5 R/CR.MA/6259/2018 ORDER 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 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."
10. Considering the ratio as above, submissions of the learned A.P.P. cannot be countenanced. Mere invocation of the provisions for serious offences would not necessarily lead to inference of commission of such offences. It is noticed that in Page 4 of 5 R/CR.MA/6259/2018 ORDER the complaint, half-hearted allegation against the applicants is made and further, when respondent No.2 - complainant has made intention of not supporting the prosecution case, clear by filing an affidavit, chances of prosecution succeeding against the applicants are very bleak. Only achievement in such a trial would be wastage of public time, money and energy. Under the circumstances, it is deemed appropriate to acknowledge the settlement placed on record by way of affidavit by respondent No.2 - complainant.
11. Accordingly, the settlement is acknowledged and the complaint and all connected proceedings arising therefrom, qua the present applicants, are quashed. Rule is made absolute with no order as to costs. Direct service is permitted.
(S.H.VORA, J) TAUSIF SAIYED Page 5 of 5