Patel Gaurav @ Goga Natubhai vs State Of Gujarat
2021 Latest Caselaw 5582 Guj

     R/CR.MA/21371/2019                            ORDER DATED: 08/06/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION NO. 21371 of 2019
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             PATEL GAURAV @ GOGA NATUBHAI
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Applicant(s) No. 1,2,3,4,5,6,7
NEEL B DAVE(9651) for the Respondent(s) No. 2
MS. MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 08/06/2021

                              ORAL ORDER

1. Rule. Ms. Monali Bhatt, learned Additional Public Prosecutor and Mr. Neel Dave, learned advocate, waive service of notice of rule on behalf of respondents Nos.1 & 2 respectively.

2. This application has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the complaint being I­ C.R. No. 177 of 2019 registered with Kadi Police Station, Dist.: Mehsana on 2.11.2019 qua for offfences punishable under Sections 395 and 354B of the Indian Penal Code and the proceedings initiated pursuant thereto.

3. Mr. Pratik Barot, learned advocate for the applicants, submitted that after the service of Notice to the Respondents and more specifically the private respondent who is the original first informant, settlement took place between the parties as it was an internal private dispute and upon the intervention of community people, common mediators and elders of the family, an amicable settlement was arrived at between the

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parties. Mr. Pratik Barot, learned advocate submitted that to preserve the feeling of brotherhood between the parties and for peace in the area, the settlement was drawn. Mr. Barot further submitted that respondent No.2­ original complainant filed his affidavit, which was notarised on 18.3.2021, which is on record along with copy of Aadhar Card and has stated that because of Corona the original complainant died on 4.5.2020. Mr. Barot, learned advocate referred to the affidavit of Mr. Jiten Sandipbhai Patel and daughter of the complainant. He submitted that all the members of the family, who have been injured, have prayed to quash the FIR.

3.1 Mr. Barot, learned advocate submitted that the parameter laid down in the case of Gian Singh v. State of Punjab and another reported in 2012 (10) SCC 303 would not be a detterence in view of the law expressed with regard to Section 395 and 397 of IPC. In the case of Dharmendra Nandubhai Patel and Anr. v. State of Gujarat, reported in 2011 (3) G.L.H 739, Mr. Barot submitted that in this case the facts does not suggest any ingredient of dacoity. The FIR reflects that during the scuffle 1 and ½ tola gold­chain and cash amount of Rs. 27,000/­ had fallen down on the ground and according to the complainant, it was picked up by applicant No.1 - Gaurav @Goga Natubhai Patel. He submits that the complainant and the witnesses have no dispute at present with regard to said money and gold­chain since it is in the possession of the concerned witnesses, who have asserted to the settlement.

4. To that, learned advocate Mr. Neel Dave, who has identified the witnesses­ daughter of the complainant and son ­ Mr. Jiten Sandipbhai Patel, has affirmed the said fact and even both the witnesses who were before this Court through Video­conferencing, have accepted the fact of

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settlement between the parties and have stated that they have no dispute or grievance, as whatever differences were there between them, have been resolved because of mediation of the representatives of the community.

4.1 The daughter of the complainant, whose affidavit has been on record and who was present before the Court through Video­ conferencing, has assured the Court that she has not asked for any compensation with regard to the complaint in terms of Section 354B of IPC. She stated that she had intervened during the scuffle to assure that no injury occurs to her father and brother and in the process, her clothes got torn. She stated that the accused had no intention to assault on her modesty.

4.2 Mr. Neel Dave, learned advocate stated that he was representing respondent No.2 defacto complainant and it was through him, the affidavit was produced on record and the complainant had given his consent for quashing the said FIR and the all the proceedings initiated in pursuance thereof.

5. Ms. Monali Bhatt, learned APP has relied upon the report of the Police Inspector, Kadi Police Station, District: Mehsana and submitted that serious allegations are made and Section 395 and 354B of IPC have been invoked which are non­compoundable and further stated that the FIR to be quashed on the basis of settlement should be in accordance with the guidelines of the Apex Court and the parameters laid down therein.

6. In the case of Dharmendra Nandubhai Patel and Anr. v. State of Gujarat (Supra) referred by learned advocate Mr. Barot, it has been

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observed in Para­21 as under:

"21. Now, in this background of the entire prosecution case and the evidence on record, can it be said that the common object of the unlawful assembly was to commit an offence of dacoity. Can it be said that the motive behind the crime was commission of dacoity or whether the common object of the unlawful assembly was to thrash the first informant for the reason that he developed intimacy with Gitaben and got married with Gitaben surreptitiously without seeking any permission from the family members of Gitaben. This is the core issue which, prima facie, needs to be considered in the appeal. However, prima facie, I am of the view that without going much into appreciation of evidence the conviction under Sections 395 and 397 appears to be unsustainable. I am of the view that the Court owes a duty to consider, as to whether the accused has a fair chance of succeeding in the appeal or not ? I may consider my prima facie opinion in light of what has been explained by the Division Bench of this High Court so far as Section 390 of IPC is concerned. The Division Bench of this High Court, in the case of Himatsing Shivsing v. The State of Gujarat, reported in 1961 GLR 678, has observed as under:­

"Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc., had been caused. If hurt etc., is caused at the time of the commission of the theft but for an object other than the one referred to in sec.390, I.P.Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in sec.390, I.P.Code, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476, in the following words:­

" The words "for that end" in sec.390 clearly mean that the hurt caused

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by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."

In Karuppa Gounden v. Emperor, A.I.R. 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi, 5 C.W.N. 372, and Kind Emperor v. Mathura Thakur, 6 C.W.N. 72, it has been observed at page 824 as follows:

" Now it is our duty to give effect to the words "for that end". It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The Public Prosecutor has been forced to argue that "for that end" must be read as meaning 'in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly, words 'in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v.Kafiluddi Manjhi 5 C.W.N. 372. Their Lordships put the question in this way: ­

" It seems to us that the whole question turns upon the words "for that end". Was any hurt or fear of instant hurt, that was caused in the present case, caused for the end of the commission of the theft ? We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time."

The language used in another case reported as King Emperor v. Mathura Thakur, 6 C.W.N. 72, is as follows :­

"The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested."

Those judgments in my opinion state the obvious intention of the section and we are bound to give effect to it and I, therefore, follow the decisions in those two cases."

7. The FIR shows that the daughter of the complainant had intervened in the altercation between the complainant, his son and the accused and during this scuffle, the gold chain and the cash amount had

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fallen down and applicant No.1 [email protected] Natubhai Patel had picked up the same and there appears to be no intention of committing any theft. Thus, the ingredients as per Section 395 of IPC would not be attracted in the present case.

8. Considering the principle laid down by the Apex Court in the case of Gian Singh v. State of Punjab and another (Supra), the present matter would fall under the criteria laid down therein. In paragraph­61 of the said judgment, it has been observed thus:

"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

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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 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."

9. 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 an FIR lodged for the 2 offences punishable under sections 307 and 34 IPC could be quashed on the basis of the settlement between the parties. While considering the said issue, the Apex Court observed in para­13 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 non­compoundable 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;

R/CR.MA/21371/2019 ORDER DATED: 08/06/2021

(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 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 non­compoundable 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."

10. It has been observed in case of Dharmendra Nandubhai Patel and Anr. v. State of Gujarat (Supra) that when hurt has alleged to have been taken with the express object of commission of theft, then offence of dacoity can be said to have been committed, here in this case as the main object of the group of people who are alleged to have formed unlawful assembly was not to commit any dacoity then Section 395 would not be attracted. They had gathered to resolve their internal dispute regarding temple.

       R/CR.MA/21371/2019                                  ORDER DATED: 08/06/2021




11.      Further in the case of        Gian Singh v. State of Punjab and

another (Supra) it has been observed that heinous and serious offence of mental deprivity or offence such as that of murder or rape cannot be quashed even though the victim or victim's family or offenders have settled. Here, in this case, Section which has been invoked is 354B of IPC. The facts of the case, as alleged in the FIR, shows that there was no such intention of accused to use any criminal force against the victim witness. Even before this Court, the victim stated that she was in process of intervening to protect her father and brother and during the scuffle accidentally her clothes got torn and there was no intention of the accused to assault her or used any criminal force against her.

12. It appears from the record that the deceased defacto complainant had given his complaint on 2.11.2019 and on the very same day an FIR was registered against him being C.R. No. 179/19 under Section 323, 504, 506(2) of IPC. The facts of the FIR suggest that the deceased complainant Sandipbhai Patel was managing affairs of Swaminarayan Temple and certain differences were there for the internal administration of the temple and about the construction of the temple, and from the cross­complaint the fact gets corroborated that the applicant­accused approached the deceased complainant to resolve the dispute relating to the temple.

13. It appears that the dispute was with regard to internal management of the temple and supervision of temple construction. The present settlement between rthe parties would be for the betterment of the community at large, representatives of the community have taken interest to settle the dispute, peace is required to prevail so that differences could be resolved and those differences could not be carried

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further to give rise to other criminal actions. The deceased complainant had filed his affidavit to assure the Court of the amicable settlement and the same is supported by affidavit of his son and daughter who are witnesses to the matter. The present settlement would not have any serious impact on the society, there are no antecedents of the accused, the facts suggest that the applicants had approached the complainant for resolving the dispute in the management of the temple. Thus, the settlement between the partiesis to maintain peace in the society and the community members, is required to be appreciated.

14. The Hon'ble Apex Court in case of Gian Singh and Laxminarayan Case (Supra) observed that the inherent power of the High Court in quashing an FIR is distinct and different from the powers given to the Criminal Court for compounding offences under section 320 of the Code of Criminal Procedure. Such inherent powers is of wide plenitudes with no statutory limitations, but such powers are to be exercised, when it is for to secure the ends of justice or to prevent abuse of process of law. The Hon'ble Apex Court in the referred judgments has observed that the power to be exercised to quash the criminal proceedings or complaint or FIR, where the offender and the victim have settled the dispute, would depend on the facts and circumstances of each case and no category can be prescribed.

In this case, the settlement has brought in by the intervention of the community members and their representative, which is a step to achieve peace and resolving the dispute.

15. Thus, In view of the settlement arrived at between the parties, there exists no scope for any further proceeding in the matter. The continuance of proceedings would lead to wastage of precious judicial

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time as there would remain no possibility of any conviction in the case. 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.

16. In the result, the petition is allowed. The impugned first information report bearing being I­C.R. No. 177 of 2019 registered with Kadi Police Station, Dist.: Mehsana on 2.11.2019 and the proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.

(GITA GOPI,J) Saj George