Gujarat High Court

Chirag Nagjibhai Barot @ Solanki vs State Of Gujarat on 25 June, 2021

Bench: Gita Gopi

     R/SCR.A/951/2019                           ORDER DATED: 25/06/2021




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION NO. 951 of 2019

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                 CHIRAG NAGJIBHAI BAROT @ SOLANKI
                              Versus
                         STATE OF GUJARAT
=============================================
Appearance:
MS. SHIVANGI M RANA(7053) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                         Date : 25/06/2021

                           ORAL ORDER

1. Rule. Ms. Monali Bhatt, learned Additional

Public Prosecutor, waives service of notice of rule on

behalf of respondent no.1. Though served, no one

preferred to appear on behalf of respondent no.2 -

Original complainant.

2. This petition has been filed under Article 226 of

the Constitution of India as well as Section 482 of the

Code of Criminal Procedure for quashing and setting

aside the FIR being C.R. No.I-157 of 2018 registered with

Vadaj Police Station, Dist.: Ahmedabad for offfences

punishable under sections 363 and 366 of the IPC and the

R/SCR.A/951/2019 ORDER DATED: 25/06/2021

proceedings initiated pursuant thereto.

3. Ms. Shivangi M.Rana, learned advocate for the

petitioner, submitted that the F.I.R. was lodged on

12.07.2018 against the present petitioner alleging that on

11.07.2018, daughter of the original complainant -

respondent no.2, Sejalben had left from her home for

work and as she did not return, the sister of respondent

no.2 inquired at her office and it came to her knowledge

that Sejalben had not attended the office and thereafter

they started searching of her, but despite various efforts,

she could not be located. Ms. Rana submits that the

daughter of respondent no.2 was in a relationship with

the present petitioner and as alleged, the petitioner lured

the daughter of respondent no.2. She submits that the

daughter of the original complainant had accompanied

the petitioner on her free will and volition. They were in

love relationship with each other. The present petitioner

and the daughter of the respondent no.2 went to Jodhpur

and got married according to the Hindu rites and rituals

on 13.12.2018.

R/SCR.A/951/2019 ORDER DATED: 25/06/2021

4. Ms. Shivangi M.Rana, learned advocate for the

petitioner, submitted that the daughter of the original

complainant did not support the version of prosecution.

She addressed a representation to the Superintendent of

Police, Palanpur, stating that she has married petitioner

on her own free will and desire. Ms. Rana submits that

the daughter of the original complainant also executed an

affidavit stating that she has entered into marriage with

the petitioner out her own free will and consent and is

peacefully residing with the petitioner, and a false

complaint is registered with a view to harass the

petitioner.

5. Ms. Shivangi M.Rana, learned advocate for the

petitioner states that, though the notice was served upon

the respondent no.2 - original complainant, he preferred

not to appear in this matter. She submits that, it appears

that the respondent no.2 has nothing to say now in terms

of the FIR filed, thus, prayed for quashing and setting

aside the impugned FIR and the proceedings initiated

pursuant thereof against the present petitioner.

R/SCR.A/951/2019 ORDER DATED: 25/06/2021

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. Heard Ms. Shivangi M.Rana, learned advocate

for the petitioner and Ms. Monali Bhatt, learned APP for

the State. Along with the memo of petition, the affidavit

of the daughter of the original complainant - wife of the

present petitioner, copy of the marriage certificate, are

produced on record. From the above documents, it

appears that the petitioner and the daughter of the

complainant had married on 13.12.2018 and the marriage

certificate in that regard has been issued by 'Arya Samaj

Pabupura, Jodhpur, and have been residing together

since then. The daughter of the complainant, wife of the

present petitioner, has stated in the affidavit that

applicant has not committed any offence as alleged and

she has married the petitioner out of her free consent and

without any threat or coercion and residing happily with

the petitioner.

R/SCR.A/951/2019 ORDER DATED: 25/06/2021

7.1 It appears that the daughter of the original

complainant and the petitioner have preferred S.B.

Criminal Misc. (Pet.) No.4707/2018 before the Rajasthan

High Court at Jodhpur, for providing adequate security

and protection to them on the ground that they having

been faced grave threat of life and liberty at the hands of

original complainant and accordingly the said petition

was disposed of on 20.12.2018 by issuing direction to the

Commissioner, Ahmedabad to consider the representation

of the petitioner.

8. It is true that the offences alleged against the

present petitioner under the Indian Penal Code are non-

compoundable. 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, it has been

observed thus:

R/SCR.A/951/2019 ORDER DATED: 25/06/2021

"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

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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

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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 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

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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

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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 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

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the complainant to enter into a compromise etc."

10. From the affidavit dated 01.01.2019 and the

representation to the Superintendent of Police, Palanpur

produced on record of the daughter of the complainant,

wife of the present petitioner, it appears that she had on

her own volition left the house with the present petitioner

and on her own free will solemnized marriage with the

petitioner. The daughter of the complainant is happily

married and residing with the petitioner. She has stated

in the affidavit that no offence has been committed by the

present petitioner, as alleged in the complaint. It appears