Kiranbhai Kanjibhai Rathod vs State Of Gujarat

Gujarat High Court

Kiranbhai Kanjibhai Rathod vs State Of Gujarat on 7 May, 2025

                                                                                                               NEUTRAL CITATION




                             R/SCR.A/6756/2025                                  ORDER DATED: 07/05/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6756 of 2025
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                                                   KIRANBHAI KANJIBHAI RATHOD
                                                              Versus
                                                     STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MR GAURAV CHUDASAMA(5660) for the Applicant(s) No. 1
                       MR. MANAN MAHETA, LD.ADDL.PUBLIC PROSECUTOR for the
                       Respondent(s) No. 1
                       ==========================================================
                            CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
                                             Date : 07/05/2025
                                                 ORDER

1. By this application under section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023, the applicant seeks to invoke the inherent powers of this Court praying for quashing of the first information report being C.R. No.11203024240551/2024 registered before the 'B' Division City Junagadh Police Station, Junagadh for the offence punishable under sections 296(b) and 351(3) of BNS, 2023 and under Sections 66(1)(b) and 65A of the Gujarat Prohibition Act, 1949.

2. The sum and substance of the allegation made in the FIR is that the respondent No.2-complainant is running a restaurant at Chitakhana Chowk, and on 24.07.2024, three unknown persons came at the restaurant of the complainant at around 11:45 pm to dine, and after seating on the table, they placed an order. It is alleged that thereafter, one of them wearing white coloured T-shirt took out some unidentified drink and poured it in the glass and then offered the said drink to one of his friends wearing a blue coloured T-shirt, and the third person mixed water in the drink. Thereafter, as the Page 1 of 9 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 09 2025 Downloaded on : Sat May 10 16:03:45 IST 2025 NEUTRAL CITATION R/SCR.A/6756/2025 ORDER DATED: 07/05/2025 undefined ordered food was not available in the restaurant, the same could not be served to them, and therefore, all the three persons started hurling abuses to the waiter, and when the complainant intervened, the person in blue T-shirt hurled abuses to the complainant also and threatened the complainant, and at that time, the said person in blue T-shirt smelled of alcohol. With this sort of allegations the impugned FIR came to be lodged.

3. Learned advocate Mr. Gaurav Chudasma appearing for the applicant, with the consent of the learned advocate Ms. Aafrin Shaikh, who has received instructions to appear on behalf of the original complainant, submits that the matter has been amicably settled between the applicant and the respondent No.2-complainant, and the respondent No.2- complainant does not have any objection if the Impugned FIR is quashed and set aside, and to that effect, the respondent No.2-original complainant has also filed an affidavit, which is appended along with the memo of the application. He submits that the complainant is also present before this Court, who has been identified his learned advocate Ms. Aafrin Shaikh. He, therefore, prays that in view of the amicable settlement arrived at between the parties, the impugned FIR be quashed and set aside.

4. Heard the learned counsel appearing for the respective parties.

5. The present application is titled as consent quashing due to the amicable settlement arrived at between the parties.

NEUTRAL CITATION R/SCR.A/6756/2025 ORDER DATED: 07/05/2025 undefined Generally, the Court is not hesitating in quashing the FIRs on the basis of the settlement arrived at between the parties after having been found the settlement genuine in nature. However, a perusal of the record in the present case suggests that the applicant herein is a public servant, serving in the most reliable department, i.e., police department as a head constable, against which, the allegations are that he made a quarrel with the complainant in an intoxicated/drunken condition and as per plethora of decisions, the power under Section 482 Cr.P.C or 528 BNSS is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

6. In Monica Kumar (Dr.) v. State of U.P., (2008) 8 SCC 781, the Supreme Court held that inherent jurisdiction under Section 482 of the Cr.P.C has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.

7. In exceptional cases, to prevent abuse of the process of the Court, the High Court might in exercise of its inherent powers under Section 482 quash criminal proceedings. However, interference would only be justified when the complaint did not disclose any offence, or was patently frivolous, vexatious or oppressive, as held by this Court in Mrs. Dhanalakshmi v. R. Prasanna Kumar.

8. In Narinder Singh v. State of Punjab, CRIMINAL APPEAL NO.686/2014, the Supreme Court held that in case of heinous Page 3 of 9 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 09 2025 Downloaded on : Sat May 10 16:03:45 IST 2025 NEUTRAL CITATION R/SCR.A/6756/2025 ORDER DATED: 07/05/2025 undefined and serious offences, which are generally to be treated as crime against society, it is the duty of the State to punish the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of society that the offender should be punished to deter others from committing a similar crime.

9. In State of Madhya Pradesh v. Laxmi Narayan & Ors., 2019 (5) SCC 688, a three-Judge Bench discussed the earlier judgments of the Supreme and laid down the following principles:-

"15. 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:

15.1. 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;

15.2. 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;

15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;

NEUTRAL CITATION R/SCR.A/6756/2025 ORDER DATED: 07/05/2025 undefined 15.4. 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 Page 18 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/delicate 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 paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [(2014) 6 SCC 466: (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

15.5. 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 impact 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."

NEUTRAL CITATION R/SCR.A/6756/2025 ORDER DATED: 07/05/2025 undefined

10. In Arun Singh and Others v. State of Uttar Pradesh Through its Secretary and Another, AIR 2020 SC 1758 the Supreme Court held:-

"14. In another decision in Narinder Singh v. State of Punjab (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] it has been observed that in respect of offence against the society it is the duty to punish the offender. Hence, even where there is a settlement between the offender and victim the same shall not prevail since it is in interests of the society that offender should be punished which acts as deterrent for others from committing similar crime. On the other hand, there may be offences falling in the category where the correctional objective of criminal law would have to be given more weightage than the theory of deterrent punishment. In such cases, the court may be of the opinion that a settlement between the parties would lead to better relations between them and would resolve a festering private dispute and thus may exercise power under Section 482 CrPC for quashing the proceedings or the complaint or the FIR as the case may be.

15. Bearing in mind the above principles which have been laiddown, we are of the view that offences for which the appellants have been charged are in fact offences against society and not private in nature. Such offences have serious impact upon society and continuance of trial of such cases is founded on the overriding effect of public interests in punishing persons for such serious offences. It is neither an offence arising out of commercial, financial, mercantile, partnership or such similar transactions or has any element of civil dispute thus it stands on a distinct footing. In such cases, settlement even if arrived at between the complainant and the accused, the same cannot constitute a valid ground to quash the FIR or the charge-sheet.

16. Thus the High Court cannot be said to be unjustified in refusing to quash the charge-sheet on the ground of compromise between the parties."

NEUTRAL CITATION R/SCR.A/6756/2025 ORDER DATED: 07/05/2025 undefined

11. In Gian Singh v. State of Punjab, AIR 2012 SC (Cri) 1796, the Supreme Court discussed the circumstances in which the High Court quashes criminal proceedings in case of a non- compoundable offence, when there is a settlement between the parties and enunciated the following principles:-

"58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal Page 13 proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such Page 7 of 9 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 09 2025 Downloaded on : Sat May 10 16:03:45 IST 2025 NEUTRAL CITATION R/SCR.A/6756/2025 ORDER DATED: 07/05/2025 undefined settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed".

12. Thus, before exercising power under Section 482 of the Cr.P.C. to quash an FIR, criminal complaint and/or criminal proceedings, the High Court, should have to be kept in mind the nature and gravity of the offence. Heinous or serious crimes, which are not private in nature and have a serious impact on society cannot be quashed on the basis of a compromise between the offender and the complainant and/or the victim. The crime alleged to have been committed in the present case is neither private nor civil in nature. The same is against the society. In no circumstances can prosecution be quashed on compromise, when the offence falls within the ambit of crime against society. It is true that the offence alleged in the impugned FIR is for making quarrel in a drunken condition, which can be quashed on the basis of a settlement arrived at between the parties in normal course. However, the present case does not fall within the normal category of cases. Here the perpetrator is a public servant, and that too working in the police department, whose duty is to protect the public at large. In the case on hand, as per the FIR, the applicant was found to be in a drunken condition and upon being reprimanded by the complainant, the applicant started hurling abuses to the complainant. It is true that the offence as alleged is a Magistrate triable offence. Day in and day out, number of prohibition offences are come on surface, and are being put to Page 8 of 9 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 09 2025 Downloaded on : Sat May 10 16:03:45 IST 2025 NEUTRAL CITATION R/SCR.A/6756/2025 ORDER DATED: 07/05/2025 undefined an end on one ground or the other. However, in the case on hand, the offence as alleged can be said to be heinous in nature having serious impact on the Society as the applicant herein is a police officer having been found indulged in doing such an illegal act at a public place. Moreover, the possibility of buying off and pressurizing the complainant by the applicant under the pretext of being a police officer, also cannot be disregarded. Thus, quashing of an FIRs and/or complaints in the peculiar facts and circumstances of the present case, only on basis of an agreement with the complainant, would set a dangerous precedent.

13. In my considered opinion, the criminal proceeding cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr. P.C. only because there is a settlement between the complainant and the accused. As stated above, looking to the allegations made in the FIR being levelled against a public servant working in the most trusted organization, and when the police officers have turned rogue, then the same is infinitely more dangerous than the criminals they pursue daily. The case has to thus proceed towards the trial and any interference at the end of this Court at this stage shall amount to abuse of the process of law.

14. For the foregoing reasons, the present application fails and is hereby rejected.

(DIVYESH A. JOSHI,J) VAHID Page 9 of 9 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri May 09 2025 Downloaded on : Sat May 10 16:03:45 IST 2025