Shah Tushar @ Vipul Mahendrabhai vs State Of Gujarat
2021 Latest Caselaw 6934 Guj

     R/CR.MA/18465/2019                          ORDER DATED: 25/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD



             R/CRIMINAL MISC.APPLICATION NO. 18465 of 2019
                                 With
             R/CRIMINAL MISC.APPLICATION NO. 18576 of 2019


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                    SHAH TUSHAR @ VIPUL MAHENDRABHAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR EKANT G AHUJA(5323) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI


                             Date : 25/06/2021


                              ORAL ORDER

1. Criminal Misc. Application No. 18465 of 2019 has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being C.R. No. I - 100 of 2018 registered with Langhnaj Police Station, Mehsana for offences punishable under Sections 406, 420, 465, 466, 468, 469, 475, 120-B of the Indian Penal Code.

Criminal Misc. Application No. 18576 of 2019 has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being C.R. No. I - 72 of 2018 registered with Langhnaj Police Station, Mehsana for offences punishable under Sections 406, 420, 465, 466, 468, 469, 475, 120-B of the Indian Penal Code.

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2. Heard Mr. Ekant G. Ahuja, learned advocate for the applicants and Ms. Monali Bhatt, learned APP for the respondent-State.

3. Mr. Ekant Ahuja, learned advocate for the applicants submitted that both the complaints have been lodged by the complainant - Jitendra @ Bakabhai Kantilal Patel and the parties have settled the dispute amicably and there remains no grievance between them. The complainant - Jitendra @ Bakabhai Kantilal Patel has appeared before this Court through video conferencing; who has been identified by learned advocate Mr. Aakash Shah. On inquiry by this Court, the complainant - Jitendra @ Bakabhai Kantilal Patel has affirmed the affidavit executed by him and stated before this Court that there in no grievance left between them and the disputes have been settled. He stated that the dispute had arisen because of land transaction and now there is no differences with regard to monetary transaction.

4. In Criminal Misc. Application No. 18465 of 2019, the dispute between the parties is with regard to the land bearing Survey No. 361 ad-measuring 1 Hector - 4 Are - 65 sq.mtrs., while in Criminal Misc. Application No. 18576 of 2019 the dispute is in relation to the land bearing Block No. 115, Old Survey No. 96/1 which was agricultural land having total area of 2 Hector - 42 Are - 51 sq.mtrs.

5. Ms. Monali Bhatt, learned Additional Public Prosecutor after referring to the report of Police Inspector, LCB Mehsana, submits that it is the case of criminal conspiracy and the statement of the complainant was recorded on 01 st June, 2021,

R/CR.MA/18465/2019 ORDER DATED: 25/06/2021

by the police and he has denied the settlement deed executed before the Notary stating that he has not received the money and the complainant had informed the mediators to resolve the dispute.

5.1 Ms. Monali Bhatt, learned APP submitted that the statement being recently recorded and thus there should not be any quashing of the FIR considering the nature of offence and the antecedents of the accused. Learned APP submitted that any First Information Report should be quashed in accordance with the guidelines of the Apex Court and the parameters laid down therein.

5.2 Ms. Monali Bhatt, learned APP further submitted that the applicant-accused of Criminal Misc. Application No. 18576 of 2019 was absconding and he has been shown in Column No.2 in the chargesheet as absconder and recently on 13 th June, 2021, he came to be arrested.

6. Mr. Ahuja, learned advocate for the applicants submitted that so far as FIR lodged against the applicants being C.R.No. I

- 100 of 2018 is concerned, the bail application was moved by the applicants was rejected and therefore the applicants are in judicial custody; while the FIR lodged against the applicant being C.R.No. I - 72 of 2018 is concerned, the bail was granted to the applicant. In view of the same, the learned advocate for the applicant submitted that the applicants be released from the judicial custody. -

7. The complainant - Jitendra @ Bakabhai Kantilal Patel stated that he had given the statement before the police on

R/CR.MA/18465/2019 ORDER DATED: 25/06/2021

01st June, 2021, and he wanted known friends and acquaintance thereof to resolve the dispute, with respect to money, he stated that after the statement before the police, all the differences were heard by the friends and senior members of the society and the dispute between him and the accused was resolved and they realized that pendency of criminal proceedings between them would result into multiplicity of the proceedings, and therefore, to avoid such situation, they have decided to resolve the dispute inter se amicably, and therefore, after 01st June, 2021, the initiative was taken and now the dispute has been resolved. The complainant also stated that he had executed an affidavit in presence of Notary on 22nd June, 2021, and he affirms the contents of the affidavit filed in the court and he stated before this court that there is now no dispute between the parties.

8. This Court has heard the learned advocates on both the sides and perused the material on record. As the dispute is regarding the land and monetary transaction which has been resolved by the parties, there would not be any adverse effect on the interest of the State and the continuation of the criminal proceedings would be waste of judicial time.

9. It is true that the offences alleged against the applicants under the Indian Penal Code are non-compoundable and that some of the offences could be compounded with the permission of the Court. 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:

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"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

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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 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 an occasion to consider the issue as to whether

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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 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;

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(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

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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 the complainant to enter into a compromise etc."

11. 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, 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 where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised for securing the ends of justice.

12. In the result, the petitions are allowed. The impugned first information report being FIR being C.R. No. I - 100 of 2018 and C.R. No. I - 72 of 2018 registered with Langhnaj Police Station, Mehsana, and the proceedings initiated in pursuance thereof against the applicants are quashed and set aside. The applicants of Criminal Misc. Application No. 18465 of 2019

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[C.R.No. I - 100 of 2018 registered with Langhnaj Police Station, Mehsana] are ordered to be released from the judicial custody forthwith if not required in any other case. Rule is made absolute to the aforesaid extent.

Direct service, over and above the regular mode of service, is permitted.

(GITA GOPI,J) A.M.A. SAIYED