Jaiminiben W/O Himanshubhai ... vs State Of Gujarat

1. The Applicant has filed this Application under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the FIR being II-CR No. 3029/2019 registered with Sola High Court Police Station, Ahmedabad City for Page 1 of 9 Downloaded on : Sun Aug 30 13:35:16 IST 2020 R/CR.MA/11855/2020 JUDGMENT the offences punishable under Sections 323, 294(b) of the Indian Penal Code with all further and consequential proceedings including charge-sheet no.62/2019 and Criminal Case No.10938/2019 pending in the Court of 8-6 th Judicial Magistrate, Ahmedabad (Rural) at Mirzapur.

2. Heard learned Advocate Mr. N.D. Gohil for the applicant, learned APP Mr. H. K. Patel for the Respondent - State of Gujarat through video conference. Learned advocate Mr. Vikram Thakore is permitted to appear on behalf of the Respondent No. 2 - original complainant since his Vakalatnama is on record.

3. Learned Advocate for the applicant has submitted to the Court that the amicable settlement is arrived at between the Complainant and the applicant Accused and the Affidavit to that effect is also placed on record at annexure- D. He further submitted that the applicant Accused has no any antecedents and therefore, the discretion may be exercised by this Hon'ble Court and the Application may be allowed and FIR and the consequential proceedings arising therefrom may be quashed.

3.A. Learned advocate Mr. Vikram Thakor 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. Learned advocate for the respondent no. 2 has placed on record Affidavit sworn by the Respondent No. 2 - original complainant dated 04.08.2020. The Affidavit reads thus:

"I Sonaliben wife of Hirenbhai Amrutbhai, Age : 36 years, Page 2 of 9 Downloaded on : Sun Aug 30 13:35:16 IST 2020 R/CR.MA/11855/2020 JUDGMENT Female, Occ. Household, Hindu by religion Residing at : A/504, Everest Empire Flat, Nr. Astha Bungalows, Science City Road, Sola, Ahmadabad, the respondent no.2 original complainant herein, do hereby state on solemn affirmation as under;

1. That I am the respondent no.2 and the original complainant of impugned complaint being II-C. R. No. 3029/2019 registered at Sola High Court Police Station on 22/2/2019 for the offences punishable U/s. 323, 294(b) of I.P.C. against the petitioner of above numbered quashing petition filed on the ground of dispute having been resolved between the parties.

2. That it is true that the disputes between the petitioner and me and my family is resolved in view of amicable settlement between the parties and therefore, we both the parties have resolved and decided to leave all bitterness, agony and animosity and to live peacefully and harmoniously in the interest of both the families since petitioners on the one hand and me and my family on the other hand are neighbours and residents of the same society and also belong to same community. Since we both the parties have amicably settled our disputes being complainant, I am not willing to prosecute the petitioner in the above numbered criminal case and therefore I have no objection if the Hon'ble Court is inclined to quash and set aside the impugned complaint and all further proceedings arising from the impugned complaint including the charge-sheet and Criminal Case No. 10938/2019 pending in the Court of Ld. 8-6th Chief Judicial Magistrate, Ahmedabad (Rural) at Mirzapur.

3. I have sworn this affidavit to file before this Hon'ble Court in the above numbered petition since we both the parties have decided to withdraw the criminal cases filed against each other.

What is stated above is true.

Solemnly affirmed on this 4th day of August, 2020 at Ahmedabad."

R/CR.MA/11855/2020 JUDGMENT

5. Learned Advocate for the applicant and learned advocate for the original complainant have submitted that the parties have entered into an amicable settlement by way of affidavit which is produced on record. Therefore, they have submitted that the Application may be allowed and the FIR may be quashed.

6. This Court has considered the arguments advanced by the learned Advocates appearing for the respective parties and also referred the authorities submitted by the learned advocate for the applicant.

7. 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:

R/CR.MA/11855/2020 JUDGMENT "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 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 Page 5 of 9 Downloaded on : Sun Aug 30 13:35:16 IST 2020 R/CR.MA/11855/2020 JUDGMENT 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 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 Page 6 of 9 Downloaded on : Sun Aug 30 13:35:16 IST 2020 R/CR.MA/11855/2020 JUDGMENT 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 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, 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 Page 7 of 9 Downloaded on : Sun Aug 30 13:35:16 IST 2020 R/CR.MA/11855/2020 JUDGMENT 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."

8. 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.

9. Having heard the arguments advanced by the learned Advocates appearing for the respective parties and the authorities cited by the learned advocate for the applicant, it transpires that the offence is registered upon the applicant Accused for the offences punishable under Sections 323 and 294(B) of the Indian Penal Code. The punishment for the offences under Section 323 is upto one year and under Section 294(B) the punishment is upto three months, but the offences are not so grave which invite the latest law of the land that whenever there is serious offences in that case the High Court may not exercise discretion under Section 482 of Cr.P.C. but in the present case, the offences are minor offences. Further, there is amicable settlement arrived at between the complainant and the accused person by way of an affidavit, therefore, it would be futile exercise if the trial shall take place and the purpose of the same would not be served and therefore in humble view of this Court, it would be just and proper to quash the aforesaid FIR.

10. In view of the aforesaid facts and circumstances and the further Page 8 of 9 Downloaded on : Sun Aug 30 13:35:16 IST 2020 R/CR.MA/11855/2020 JUDGMENT development that took place in the matter as come forward by way of an Affidavit by the Respondent No.2 - Original Complainant, learned Advocate appearing for the applicant has submitted that now the cause does not survive and therefore the FIR may be quashed and set aside.

11. 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 very minor which is discussed earlier. Therefore, with respect, latest law is not applicable to the present case.

12. In view of the aforesaid discussion and the submission made by the learned Advocates appearing for the parties, this Court is inclined to exercise discretion in favour of the applicant vested under Section 482 of the Cr.PC. Therefore, the present petition deserves to be allowed and accordingly stands allowed. FIR being II-CR No. 3029/2019 registered with Sola High Court Police Station, Ahmedabad City for the offences punishable under Sections 323, 294(b) of the Indian Penal Code and all the consequential proceedings including charge-sheet no.62/2019 and Criminal Case No.10938/2019 pending in the Court of 8-6th Judicial Magistrate, Ahmedabad (Rural) at Mirzapur, are hereby quashed and set aside.

13. Rule is made absolute accordingly with no order as to costs.

14. Copy of this order be sent to the concerned Court and concerned Police Station through e-mail / fax.

(DR. ASHOKKUMAR C. JOSHI,J) prk/Zgs Page 9 of 9 Downloaded on : Sun Aug 30 13:35:16 IST 2020