Vishalbhai Anilbhai Parmar ... vs State Of Gujarat
2021 Latest Caselaw 5112 Guj

       R/SCR.A/3805/2021                                    ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO. 3805 of 2021

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               VISHALBHAI ANILBHAI PARMAR (RAJPUT)
                              Versus
                       STATE OF GUJARAT
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Appearance:
MR V A ZALA(11441) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                           Date : 07/04/2021

                            ORAL ORDER

By way of present application, applicant has prayed to quash

and set aside the FIR being C.R.No.11198047200099 of 2020

registered with Shihor Police Station, Dist.: Bhavnagar for the

offence punishable under Sections 363, 366 and 376 of the Indian

Penal Code (hereinafter referred to as "the IPC" for short) and

Sections 4 and 18 of the Protection of Children from Sexual

Offences (POCSO) Act, 2012 (hereinafter referred to as "the

POCSO Act" for short) and has further prayed to stay further

proceedings thereto.

Notice to respondent no.1. Learned APP waives service of

notice on behalf of respondent no.1.

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Heard learned advocate for the applicant and learned APP for

the respondent­State.

It is submitted by learned advocate for the applicant that

after the incident took place, the matter is amicably settled

between the parties with the intervention of the family members

and relatives of the society and therefore, the FIR may be quashed

and set aside. That after knowing to the complainant that the

present FIR was lodged by mistake and without knowing the facts

and circumstances, present complainant approached the applicant

and settled on present FIR. That the complainant and the applicant

entered into the settlement agreement dated 09.03.2021 in which

it is stated by the complainant that the present FIR was lodged on

saying of others which was wrong and made in hastily. Learned

advocate for the applicant has drawn attention of this Court

towards the affidavit of the complainant - Nirmalaben Vinodbhai

Rathod and submitted that the dispute is amicably settled between

the parties and the FIR may be quashed and set aside.

Learned APP for the respondent­State has strongly opposed

the submissions made by learned advocate for the applicant and

has drawn attention of this Court towards the contents of the FIR

as well as report along with the statement of the victim submitted

R/SCR.A/3805/2021 ORDER

by the police authorities dated 20.02.2020 and submitted that

initially the FIR was registered against the applicant under Sections

363 and 366 of the IPC as well as Section 18 of the POCSO Act and

after recording the statement of the victim, during the course of

investigation, Section 376 of the IPC as well as Section 4 of the

POCSO Act were requested to be added. That at the time of

committing the offence, the age of the victim was 15 years and she

was minor and therefore, investigation is required. That the

applicant was not available and therefore, investigation should be

continued. It is submitted that consent of the complainant may not

be considered by this Court. Hence, it is requested to dismiss the

present application as the victim was minor aged about 15 years at

the time of committing the offence.

Having gone through the facts and circumstances and

submissions made by learned advocate for the applicant, this Court

does not deem it fit to issue notice to respondent no.2. It appears

that on 16.02.2020, the complaint was lodged by the complainant

against present applicant with the specific allegations of abducting

her minor daughter on 13.02.2020 for the offence punishable

under Sections 363 and 366 of the IPC. The name of the applicant

is shown in the complaint and age of the victim shown by the

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complainant is 15 years at the time of committing the offence. It

also appears from the report submitted by the Police Inspector,

Shihor Police Station, Dist.: Bhavnagar along with the statement of

the victim dated 20.02.2020 that physical relation was developed

by the present applicant with the victim, and therefore, Section 376

of the IPC and Section 4 of the POCSO Act were requested to be

added. Necessary permission to add the aforesaid sections were

granted by the learned Trial Court. Now the dispute is amicably

settled between the parties and the complainant has no grievance

as per submission made y learned advocate for the applicant. An

affidavit of the complainant is produced on record (Annexure­C),

wherein it is stated that she does not want to proceed further and

she wants to withdraw the FIR dated 16.02.2020. Admittedly, the

complaint was registered against present applicant initially for the

offence punishable under Sections 363 and 366 of the IPC and

Section 18 of the POCSO Act by the Investigating Officer. It is not

in dispute that the age of the victim was minor i.e. 15 years at the

time of committing the offence by the present applicant. Even today

also, the victim is minor and her mother i.e. complainant has

lodged the complaint and now she has filed her affidavit stating

that she has no grievance against present applicant. This Court

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would like to refer the judgment of the Hon'ble Apex Court in case

of State of Madhya Pradesh v. Laxmi Narayan and others,

reported in (2019) 5 SCC 688, wherein the Hon'ble Supreme has

held as under:

"At the outset, it is required to be noted that in the present appeals, the High Court in exercise of its powers under Section 482 of the Cr.P.C. has quashed the FIR for the offences under Sections 307 and 34 of the IPC solely on the basis of a compromise between the complainant and the accused. That in view of the compromise and the stand taken by the complainant, considering the decision of this Court in the case of Shiji (supra), the High Court has observed that there is no chance of recording conviction against the accused persons and the entire exercise of a trial would be exercise in futility, the High Court has quashed the FIR.

9.1 However, the High Court has not at all considered the fact that the offences alleged were non­compoundable offences as per Section 320 of the Cr.P.C. From the impugned judgment and order, it appears that the High Court has not at all considered the relevant facts and circumstances of the case, more particularly the seriousness of the offences and its social impact. From the impugned judgment and order passed by the High Court, it appears that the High Court has mechanically quashed the FIR, in exercise of its powers under Section 482 Cr.P.C. The High Court has not at all considered the distinction between a personal or private wrong and a social wrong and the social impact. As observed by this Court in the case of State of Maharashtra vs. Vikram Anantrai Doshi, (2014) 15 SCC 29, the Court's principal duty, while exercising the powers under Section

R/SCR.A/3805/2021 ORDER

482 Cr.P.C. to quash the criminal proceedings, should be to scan the entire facts to find out the thrust of the allegations and the crux of the settlement. As observed, it is the experience of the Judge that comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. In the case at hand, the High Court has not at all taken pains to scrutinise the entire conspectus of facts in proper perspective and has quashed the criminal proceedings mechanically. Even, the quashing of the FIR by the High Court in the present case for the offences under Sections 307 and 34 of the IPC, and that too in exercise of powers under Section 482 of the Cr.P.C. is just contrary to the law laid down by this Court in a catena of decisions.

This Court must hasten to add that the plenitude of the power under Section 482 CrPC by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for this Court to enumerate the situations in which the exercise of power under Section 482 may be justified. All that this Court need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law.

29.3 Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private

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in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute 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

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;

Here, in the present case, allegations made by the complainant against the present applicant are serious in nature because the applicant/accused gave assurance/promise to the complainant that he will give divorce to his wife as his relation with his wife were not good and will ready to marry with her. On giving such assurance/promise to the complainant, he started physical relations with her and thereafter, he refused to marry with her on the ground that it was not possible for him as he was suffering heart disease and would not live for more than 5 to 10 years. Therefore, the gravity of the offence and the conduct of the accused would require to be considered by this Court and solely on the ground that he had never forced the complainant for physical relation and it was a consensual as they were in love with each other cannot be sole ground to quash the complaint, at this juncture without recording evidence before the trial Court."

Having considered the ratio laid down by the Hon'ble Apex

Court and considering the facts and circumstances of the facts, it

R/SCR.A/3805/2021 ORDER

appears that the victim is minor and the complainant has filed a

complaint against the applicant for the offence punishable under

Sections 363, 366 and 376 of the IPC and Sections 4 and 18 of the

POCSO Act and the investigation is not completed. It is under

progress. Applicant himself is not arrested yet. As per the

submissions made by learned advocate for the applicant, consent of

mother of the minor victim granting concession to the present

applicant for quashing the FIR would not be considered by the

Court, and therefore, prayer made by present applicant to quash

the FIR would not be accepted by this Court.

In view of the above observations, present application

deserves to be dismissed and accordingly, the same is dismissed.

(B.N. KARIA, J) rakesh/