Parmar (Vankar) Nareshbhai ... vs State Of Gujarat
2021 Latest Caselaw 10820 Guj

     R/CR.RA/194/2021                               ORDER DATED: 05/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 194 of 2021

==========================================================
            PARMAR (VANKAR) NARESHBHAI JIVABHAI
                               Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1,2
MR UMANG R VYAS(5595) for the Applicant(s) No. 1,2
MR JK SHAH ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
TATVDEEP J JANI(7227) for the Respondent(s) No. 1
==========================================================

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 05/08/2021

ORAL ORDER

1. The present criminal revision application under Section 397 of the Code of Criminal Procedure is filed for the purpose of seeking the following reliefs :-

"10.(A) Your Lordships may be pleased to quash and set aside the judgment passed in Criminal Appeal No.39 of 2019 by the learned Sessions Judge, Patan dated 26.02.2020 and further quash and set aside the judgment of Criminal Case No. 537 of 2013 passed by learned JMFC, Harij dated 19.08.2019 as being incorrect, having improper finding and having hard and improper sentence;

(B) Your Lordships may be pleased to stay the impugned order, suspend the execution of sentence and release the applicants on bail pending admission, hearing and final disposal of this revision;

(C ) Your Lordships may be pleased to dispense with filing of affidavit in support of this petition as the applicants are presently in judicial custody.

(D) Your Lordships may be pleased to pass any such other and/or further orders that may be though just and proper, in the facts and

R/CR.RA/194/2021 ORDER DATED: 05/08/2021

circumstances of the present case."

2. The case of the revisionist is that the applicants, complainant and husband of the complainant are residing at Harij. On 19.09.2013, it is the case of the prosecution that both the present applicants attacked complainant and her husband with sticks and gave fist blows and it is on account of intervention of neighbour, the incident was stopped. Except the husband of the complainant and uncle of the complainant's husband, no other witnesses have been examined during the course of prosecution and there is no eye witness to the incident in question as per the say of the applicants. Even according to the applicants the complainant has not given any specific name with any specific attribution, but the applicants were faced with trial for the offences punishable under Sections 323, 504, 114 of the Indian Penal code read with Section 135 of the Gujarat Police Act and the case was registered as Criminal Case No. 537 of 2013 in the court of learned Judicial Magistrate, First Class, Harij.

2.1. The learned Magistrate, Harij vide judgment and order dated 19.08.2019 was pleased to pass the order of conviction against the appellants for the offences under Section 323 of the Indian Penal Code whereas, for rest of the charges, the applicants have been acquitted and the order of sentence is passed to undergo six months imprisonment and fine of Rs.1,000/- and in case of default of fine, to undergo further imprisonment of 15 days. The applicants have challenged this order of conviction passed by the learned Magistrate, before the Sessions Court by way of preferring appeal which was numbered as Criminal Appeal No. 39 of 2019, which came up for consideration before the learned Sessions Judge, Patan who vide judgment and order dated 26.02.2021, was pleased to confirm the order of conviction passed by the learned Magistrate, Harij

R/CR.RA/194/2021 ORDER DATED: 05/08/2021

and it is against both these orders, the present Criminal Revision Application came to be filed before this Court.

3. On 12.03.2021, the co-ordinate Bench of this Court was pleased to admit the revision application and suspended the order of sentence, however, during the passage of time, it has been reported to the Court that compromise took place between the parties amicably outside the Court and as such, with this background the present revision is taken up for hearing upon the request of the learned advocates appearing for the respective sides.

4. Mr. Rutvij Oza, learned advocate appearing on behalf of the applicants has submitted that the offence for which order of conviction is passed is a compoundable offence and, therefore, with the permission of the Court, the parties are seeking disposal of the present revision application in view of the overall settlement. Learned advocate Mr. Oza has submitted and drawn an attention of this Court to the compromise pursis dated 30.06.2021 produced on record at page 52 along with an affidavit of complainant named as Geetaben Dineshbhai Solanki who affirmed the affidavit and confirmed the factum of compromise on 30.06.2021 and even injured person named Dineshbhai Madhabhai. Solanki, husband of the complainant has also tendered an affidavit of even date confirming the settlement and have requested to set aside the order of conviction passed against the appellants by permitting such compromise which has been arrived at. An affidavit of Geetaben Dineshbhai Solanki as also the complainant is also tendered in Gujarati version affirmed on 06.03.2021 which is attached to the petition compilation and Mr. Dineshbhai Madhabhai Solanki has also affirmed an affidavit in gujarati language on 06.03.2021 declaring that overall

R/CR.RA/194/2021 ORDER DATED: 05/08/2021

compromise has taken place without any coercion or pressure or undue influence and, therefore, a joint request is made by both the sides to dispose of the present revision application by permitting the parties to compound the offence. Learned advocate Mr. Oza has pointed out that this offence is punishable under Section 323 of Indian Penal Code which is a compoundable offence and in view of the compromise, the present revision application may be allowed and for substantiating his submission, learned advocate Mr. Oza has relied upon few decisions whereby the proceedings have been disposed of in view of the compromise and thereby, requested the Court to dispose of the proceedings.

5. Learned advocate Mr. Tatvdeep Jani, appearing on behalf of the original complainant has kept present the complainant - Geetaben Dineshbhai Solanki along with injured husband Dineshbhai Madhabhai Solanki in his office and has identified both the persons and presented in Video Conferencing with a view to establish as to whether compromise has taken place in true spirit or not. Even the Court has put a question to complainant Geetaben Dineshbhai Solanki as well as Dineshbhai Madhabhai Solanki who declared before the Court that in true sense compromise has taken place and there is no grievance left out of any nature and as such compromise has taken place with free will without any coercion or undue influence and, therefore, have requested the Court to set aside the order of conviction passed against the applicants.

5.1. Learned advocate Mr. Jani has specifically identified and confirmed the factum of compromise and has relied upon the affidavits which have been indicated above and the compromise deed and has requested to dispose of the revision application.

        R/CR.RA/194/2021                                 ORDER DATED: 05/08/2021




6.       As against this,    Mr. J.K. Shah, learned Additional Public

Prosecutor appearing on behalf of the respondent - State has also submitted that in such a situation, where the offences are compoundable for which the applicants are facing the order of conviction, the Hon'ble Court may pass suitable order in the interest of justice keeping in view the consistent orders which have been passed in such a situation and left it to the discretion of the Court.

7. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, the factum of compromise between the parties to the proceedings have been confirmed by both the learned advocates appearing for the parties. Apart from that the compromise deed has been signed by both the complainant as well as the husband and the applicants as well and their signatures are confirmed by the respective learned advocates who are representing the parties to the proceedings. In addition to it, the record indicates that the affidavits confirming the factum of compromise is also in a vernacular as well as in English language, tendered on record, undisputedly signed by the complainant as well as the injured husband and declared before the Court in Video Conferencing that no grievance is left out and, therefore, in such a situation, the Court is inclined to accept the compromise.

7.1. In one of the decision which has been tendered before the Court, relying upon the observations made by the Hon'ble Supreme Court in the case of State of Karnataka v. L. Muniswamy & Ors., reported in AIR 1977 SC 1489, it has been propounded that keeping in view a salutary public purpose, the High Courts' have inherent powers both in civil and criminal matters to dispose of the proceedings. The relevant extract from

R/CR.RA/194/2021 ORDER DATED: 05/08/2021

the said decision contained in para 6 in the case of Shaileshkumar Ishwarbhai Chauhan v. State of Gujarat reported in 2006 JX (Guj) 497, is reproduced hereunder :-

"6. This court in the matter of Nitinbhai Mathurdas Thakkar & Others v. State of Gujarat and others, reported in 2005(3) GLR 2377, has quashed the complaint when there was a compromise. The Hon'ble the Apex Court in the matter of State of Karnataka v. L. Muniswamy & others, reported in AIR 1977 SC 1489 has observed in para 7 as under :-

"7. ....... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it come to the conclusion that allowing the proceeding to continue would be an abuse of process of the Court or that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding out to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution........"

8. In view of the aforesaid situation which is prevailing on record, considering the underline object of Section 320 of Code of Criminal Procedure, the Court is of the opinion that this is a fit case in which the discretion under the provision deserves to be exercised for compounding offence. Additionally, the Court has also taken note of the situation that the incident in question has occurred prior to almost eight years and in between the parties are at cordial relations as indicated and there is no animosity nor any grievance is surviving. In that view of the matter also, the offences for which the order of conviction is passed against the applicants are permitted to be compounded.

9. Accordingly, the revision application is allowed. The impugned judgment and order passed in Criminal Case No. 537 of 2013 by the

R/CR.RA/194/2021 ORDER DATED: 05/08/2021

learned Judicial Magistrate First Class, Harij dated 19.08.2019 as well as judgment and order passed in Criminal Appeal No. 39 of 2019 by the learned Sessions Judge, Patan dated 26.02.2020 are hereby quashed and set aside. Rule is made absolute in view of the aforesaid compromise.

(ASHUTOSH J. SHASTRI, J) phalguni