Kantibhai Budhabhai Vaghela vs State Of Gujarat
2021 Latest Caselaw 10663 Guj

      R/SCR.A/3689/2021                             ORDER DATED: 05/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 3689 of 2021

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                          KANTIBHAI BUDHABHAI VAGHELA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR DARSHIT R BRAHMBHATT (8011) for the Applicant(s) No. 1,2
MR CHIRAG BRAHMBHATT for the Respondent(s) No. 2
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 05/08/2021

                                 ORAL ORDER

1. Rule. Learned Additional Public Prosecutor and learned advocate Mr. Chirag Brahmbhatt waive service of notice of rule on behalf of the respective respondents. Learned advocate Mr. Brahmbhatt is permitted to file his Vakalatnama with the Registry.

2. This petition has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the impugned complaint being C.R. No. I-186 of 1985 registered with Chaklasi Police Station for offences punishable under Sections 376, 363, 366, 380 and 114 of IPC and all consequential proceedings initiated in pursuance thereof.

3. Learned advocate Mr. Darshit Brahmbhatt for the petitioners submits that the case was registered in the year 1985 as C.R. No. I-186 of 1985 with Chaklasi Police Station under Sections 376, 363, 366, 380 and

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114 of IPC. The petitioner No.1 and the victim had eloped. It was a case of love affair and they had married after about two years, i.e. on 10.03.1987. After about 35 years, i.e. on 11.02.2021, the petitioner No.1 came to be arrested. It is stated that in Sessions Case No.22 of 1987, the co-accused, Vitthalbhai Dahyabhai Padhiyar, who was alleged to have helped the petitioner No.1 and the victim, came to be acquitted. He further submits that after the marriage, the couple have two daughters, who are, presently, aged about 22 and 20 years. Both the daughters are also married.

4. The respondent-original complainant is the maternal uncle of the victim, who is present in the Office of learned advocate Mr. Chirag Brahmbhatt, who has identified the complainant. The virtual Court verified the contents of the compromise with the original complainant. The parties have admitted about the factum of settlement of dispute.

5. Learned Additional Public Prosecutor submitted that any first information report should be quashed in accordance with the guidelines of the Apex Court and the parameters laid down therein.

6. This Court has heard learned advocates on both the sides and has perused the material on record. The offence alleged against the petitioners is non-compoundable; however, it could be compounded with the permission of the Court. In Gian Singh v. State of Punjab and another reported in 2012 (10) SCC 303, the Apex Court has set out the criteria where the inherent jurisdiction of the High Court could be exercised for quashing a First Information Report on the basis of a settlement. In paragraph-61 of the said judgment, it has been observed thus:

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"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 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

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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."

7. 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 a First Information Report lodged for the offences punishable under sections 307 and 34 IPC could be quashed on the basis of settlement between the parties. Para-13 reads 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 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

R/SCR.A/3689/2021 ORDER DATED: 05/08/2021

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."

8. In the present case, the alleged offence took place in the year 1985. In 1987 the parties got married and out of the wedlock, two daughters were born, who are also reported to be married. The offence under Section 376 IPC was incorporated vide order dated 15.02.2021. The age of the victim girl was 16 years and 05 months at the relevant point of time. Their relationship was consensual in nature and taking into consideration the provision of Section 375 of IPC prior to 03.02.2013, the offence is required to be quashed as the age of the victim at the relevant time was above 16 years. 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.

R/SCR.A/3689/2021 ORDER DATED: 05/08/2021

9. In the result, the petition is allowed. The impugned complaint being C.R. No. I-186 of 1985 registered with Chaklasi Police Station and all consequential proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.

( GITA GOPI, J )

PRAVIN KARUNAN