Viralbhai Manubhai Rathod vs State Of Gujarat
2021 Latest Caselaw 18644 Guj

     R/SCR.A/11833/2021                                 ORDER DATED: 22/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 11833 of 2021

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                           VIRALBHAI MANUBHAI RATHOD
                                      Versus
                           STATE OF GUJARAT & 1 other(s)
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Appearance:
DARSHIT R BRAHMBHATT(8011) for the Applicant(s) No. 1
A N KADRI(7990) for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                  Date : 22/12/2021

                                   ORAL ORDER

1. By way of this application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicant has prayed for following substantial reliefs:

             "(A)         Admit and allow this application;


             (B)          Your Lordship may be pleased to quash and

set aside the Complaint/FIR registered with Nadiad Town Police Station being I-C.R. No.186 of 2005 as well as judgment and order of conviction and sentence passed by the Learned 2nd Additional Sessions Judge, Kheda at Nadiad, in Criminal Appeal No.45 of 2016 as well as the judgment and order passed by the JMFC, Nadiad in Criminal Case No.7278 of 2005, in the interest of justice;"

2. The facts leading to filing of the present application

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are stated to be as under:

2.1 The applicant is original accused no.3 against whom the complaint came to be filed under Sections 326, 324, 323 and 504 read with Section 114 of IPC before Nadiad Town Police Station, Kheda being I-C.R. No.186 of 2005. Criminal Case No.7278 of 2005 was registered before JMFC Court, Nadiad. The trial Court after recording the evidence and hearing the parties, convicted the present applicant herein under Sections 326 and 324 of IPC and was ordered to suffer sentence of 3 years RI and fine of Rs.5,000/- was imposed and in default of payment of fine, simple imprisonment of 30 days was awarded and under Section 504 of IPC, he was also sentenced to suffer the sentence till rising of the Court.

2.2 The applicant preferred an appeal before the learned Sessions Court, Kheda challenging the order of conviction and sentence being Criminal Appeal No.45 of 2016 and the same came to be dismissed confirming the sentence and conviction passed by the trial Court as referred above.

2.3 Being aggrieved with the judgments of the trial Court as well as sessions Court, the applicant herein has preferred revision application before this Court being Criminal Revision Application No.887 of 2019 wherein he was released on bail and during the pendency of the revision application, the matter between the applicant and the complainant was settled amicably.

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3. In the aforesaid facts, the applicant is before this Court for quashing of impugned FIR, criminal proceedings and order of conviction mainly on the ground that the dispute in question which is purely personal in nature, has been amicably settled between the parties and now, continuation of impugned criminal proceedings amounts to sheer abuse of process of law.

4. Heard Mr. Darshit Brahmbhatt, learned advocate for the applicant, Mr. A.N. Kadri, learned advocate for the respondent no.2-original complainant and Ms. Shruti Pathak, learned APP for the respondent-State.

5. Mr. Brahmbhatt, learned advocate for the applicant would submits that the dispute has been resolved by way of amicable settlement as parties belong to the same locality and an amicable settlement has been arrived at between the parties so as to maintain harmony, peaceful and healthy personal relationships in future. He would further submits that the respondent no.2 has agreed to give consent for quashing of impugned criminal proceedings and she does not want to prosecute the impugned criminal proceedings and considering the nature of dispute no public policy is involved in the case. Strong reliance has been placed on the decision in case of Ramgopal Versus State of Madhya Pradesh reported in 2021 (0) AIJEL-SC 67811 to submit that having regard to the nature of offence and the fact that the parties have

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amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, the High Court can quash such proceedings in exercise of its inherent powers under Section 482 of the Code, even if the offences are non-compoundable.

6. Mr. A.N. Kadri, learned advocate for the respondent no.2 reiterating the facts of settlement affidavit would submits that the informant-respondent no.2 do not wish to prosecute the applicant as the impugned FIR was lodged out of misunderstanding, misconception, desperation, anger and anxiety.

7. Ms. Shruti Pathak, learned APP has vehemently opposed the application mainly on the ground that once conviction is awarded by the trial Court and confirmed by the sessions Court, the power cannot be exercised at this stage under Section 482 of the Code by this Court.

8. I have heard learned advocates appearing for the respective parties.

9. Before adverting to the issue raised in the application, let examine the scope of powers exercisable by the High Court under Section 482 of the Code. In case of Gian Singh Vs. State of Punjab reported in 2012 10 SCC 303, 3Judge Bench of the Apex Court held in paragraph-61 as under:

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"61.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 F.I.R may be exercised where the offender and 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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 pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or

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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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

10. In case of State of Madhya Pradesh Vs. Laxmi Narayan & Ors. reported in 2019 5 SCC 688, it was held that:

"10(1) That the power conferred under Section 482 of the Code to quash the criminal proceedings for the noncompoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil

R/SCR.A/11833/2021 ORDER DATED: 22/12/2021

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;

              (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;

(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;

(4) xxx xxx xxx (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."

11. In light of the settled principle of law, it appears that

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the criminal proceedings involving nonheinous offences or where the offences are predominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction.

12. In the facts of the present case, the dispute is private in nature and parties have voluntarily agreed to settle the dispute and there is no coercion undue force on them for arriving at settlement. The offence alleged cannot be serious in nature for quashing of which would affect public interest. The parties are belonging to same locality. Thus, this Court is of the considered view that in view of settlement, no fruitful purpose would be served by continuing the proceedings and thus, further continuation of proceedings would amount to abuse of process of the Court and therefore, quashing of criminal proceedings will advance peace and harmony between the parties who have decided to forget the dispute. Thus, to secure the ends of justice, the impugned FIR and consequential proceedings thereof arising from the said FIR, leading to Criminal Case No.7278 of 2005 and Criminal Appeal No.45 of 2016 is hereby set aside.

13. Hence, the present application is allowed and the impugned FIR bearing I-C.R. No.186 of 2005 registered with Nadiad Town Police Station, Dist.- kheda filed against present applicant and the judgment and order of conviction and sentence dated 28.04.2016 passed in

R/SCR.A/11833/2021 ORDER DATED: 22/12/2021

Criminal Case No.7278 of 2005 passed by JMFC, Nadiad are hereby quashed and set aside qua the present applicant. The applicant herein has been acquitted for the offence punishable under Sections 326, 324 and 504 of IPC. The applicant is entitled for refund of the fine amount. The trial Court is directed to refund the same. Direct service is permitted.

(ILESH J. VORA,J) TAUSIF SAIYED