Gujarat High Court

Sachinbhai Nathabhai Maradiya vs State Of Gujarat on 16 June, 2021

Bench: Gita Gopi

     R/CR.MA/18452/2019                        ORDER DATED: 16/06/2021




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC. APPLICATION NO. 18452 of 2019
                          With
     CRIMINAL MISC. APPLICATION (DIRECTION) NO. 1 of
                          2020
                            In
      R/CRIMINAL MISC. APPLICATION NO. 18452 of 2019
=============================================
                    SACHINBHAI NATHABHAI MARADIYA
                                Versus
                           STATE OF GUJARAT
=============================================
Appearance:
A R ROCKEY(7592) for the Applicant(s) No. 1,2,3,4
MR NIRAL R MEHTA(3001) for the Applicant(s) No. 1,2,3,4
MR. HARDEEP L MAHIDA(7112) for the Applicant(s) No. 1,2,3,4
MR PATHIK M ACHARYA(3520) for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
=============================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                           Date : 16/06/2021

                            ORAL ORDER

1. Rule. Ms. Monali Bhatt, learned Additional

Public Prosecutor and Mr. Pathik M.Acharya, learned

advocate, waive service of notice of rule on behalf of

respondent 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 FIR being I-CR No.40/2019, registered

with Jam-Jodhpur Police Station, Dist.: Jamnagar for

offfences punishable under section 498A and 114 of IPC

R/CR.MA/18452/2019 ORDER DATED: 16/06/2021

and the proceedings initiated pursuant thereto.

3. Mr. Niral R.Mehta, learned advocate for the

applicants, submitted that the parties have settled the

dispute amicably, as they have taken customary divorce

on 10.03.2021 and now there remains no grievance

between them. It was, therefore, submitted that in the

larger interest of the society, the impugned complaint

may be quashed and set aside.

4. Mr. Pathik M.Acharya, learned advocate for

respondent no.2, original complainant, concurred with

the factum of settlement of the dispute, as advanced by

learned advocate Mr. Niral R.Mehta appearing for the

applicants.

5. The complainant - respondent no.2 had

appeared before the virtual Court on 09.06.2021. She had

stated before the virtual Court on 09.06.2021, that they

have taken customary divorce on 10.03.2021, however,

the matter was adjourned for today to place on record the

Affidavit of the complainant - respondent no.2. The

respondent no.2 - original complainant, had categorically

R/CR.MA/18452/2019 ORDER DATED: 16/06/2021

stated before the virtual Court that she has no grievance

against the applicants and that she has no objection to

the quashment of the impugned first information report

filed by her. Today, the notarized affidavit dated

09.06.2021 of original complainant - respondent no.2 is

on record, who is identifed by learned advocate Mr.

Acharya.

6. Ms. Monali Bhatt, learned 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.

7. This Court has heard the learned advocates on

both the sides and perused the material on record. The

respondent no.2 - original complainant affirmed that

dispute with the applicants has been amicably resolved. It

is also affirmed that there is no ill-will between the

parties and that the original complainant had not

sustained any serious injury in the alleged incident.

8. The Hon'ble Supreme Court in the case of

Social Action Forum for Manav Adhikar & Anr. Vs.

R/CR.MA/18452/2019 ORDER DATED: 16/06/2021

Union of India, Ministry of Law and Justice & Ors., in

Writ Petition (Civil) No.73 of 2015 held that, in cases

under Section 498A of IPC, if a settlement is arrived at,

the parties can approach the High Court under Section

482 of the Code of Criminal procedure and the High

Court keeping in view the law laid down in Gian Singh v.

State of Punjab and another, shall dispose of the same.

9. It is true that the offence under Section 498A

alleged against the applicants under the Indian Penal

Code are non-compoundable. Section 498A does not find

place in the table followed in Section 320 of the Cr.P.C.

for compounding of offence, even there is no specific

amendment of State of Gujarat for compounding of the

said offence, as laid down in case of Social Action Forum

for Manav Adhikar (supra), the High Court would have to

consider the settlement arrived by the parties under

Section 482 of the Cr.P.C. Considering the principle laid

down by the Apex Court in the case of Gian Singh v.

State of Punjab and another reported in 2012 (10)

SCC 303, the present matter would fall under the criteria

laid down therein. In paragraph-61 of the said judgment,

R/CR.MA/18452/2019 ORDER DATED: 16/06/2021

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

R/CR.MA/18452/2019 ORDER DATED: 16/06/2021

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

R/CR.MA/18452/2019 ORDER DATED: 16/06/2021

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."

10. 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 para-13 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

R/CR.MA/18452/2019 ORDER DATED: 16/06/2021

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 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;

R/CR.MA/18452/2019 ORDER DATED: 16/06/2021

(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."

11. In the present case, the impugned complaint

was filed on 11.09.2019 and the parties have taken

customary divorce on 10.03.2021. Admittedly, the dispute

is a private and personal affair. The injury sustained does

not involve any mental depravity nor amounts to a

heinous crime. In view of the settlement arrived at

between the parties and the customary divorce taken

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 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