Mahendrabhai Hemantbhai Jariya vs State Of Gujarat
2021 Latest Caselaw 3892 Guj

        R/CR.MA/619/2021                               ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 619 of 2021

==========================================================
                  MAHENDRABHAI HEMANTBHAI JARIYA
                              Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
NIYANT R BHIMANI(8000) for the Applicant(s) No. 1
MR. KIRTAN H MISTRY(10012) for the Respondent(s) No. 2
MS NISHA THAKORE, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 08/03/2021

                            ORAL ORDER

1. Heard Ms. Niyant R. Bhimani, learned advocate for the applicant, Ms. Nisha Thakore, learned Additional Public Prosecutor for respondent no.1 and Mr. Kirtan H. Mistry, learned advocate for respondent no.2.

2. By way of filing this application under Section 482 of the Code of Criminal Procedure, the applicant has prayed for following reliefs:

"10.(a) To pass an order quashing and setting aside the order dated 27.12.2019 passed by 4th Addl. Chief Judicial Magistrate, Rajkot in Criminal Case No.5701 of 2015 arising out of First Information Report being CR-II,116 of 2015 dated 30/06/2015 registered with Mahila Police Station, Rajkot for offences punishable under Sections 498(A), 494, 323, 504 and 506(2) of the Indian Penal Code and all other consequential proceedings arising out of the said case;

R/CR.MA/619/2021 ORDER

10.(b) To pass any other order or orders in favour of the applicant as this Hon'ble Court deems fit under the facts and circumstances of the case."

3. Brief facts giving rise to the present application are stated as under:

3.1. It is the case of the applicant herein that the applicant got married with respondent no.2 on 22/01/2005 as per Hindu rituals and, thereafter disputes between couple started taking place. Respondent no.2 herein filed a criminal complaint against the present applicant on 30/06/2015 by way of FIR being CR No.II-116 of 2015 registered with Mahila Police Station, Rajkot for the offences punishable under Section 498(A), 494, 323, 504 and 506(2) of the Indian Penal Code. Investigation was carried out and after the charge sheet was filed, the proceedings were culminated into Criminal Case No.5701 of 2015 before the learned Additional Chief Judicial Magistrate, Rajkot.

3.2. The trial proceeded before the learned 4th Additional Chief Judicial Magistrate, Rajkot and ultimately learned 4th Additional Chief Judicial Magistrate, Rajkot, vide order dated 27/12/2019 passed in Criminal Case No.5701 of 2015, held the present applicant guilty of offence punishable under Section 498(C) and imposed penalty of three years simple imprisonment and imposed fine of Rs.5,000/- and in case of default, passed an order to undergo a simple imprisonment of one month. Learned 4th Additional Chief Judicial Magistrate, Rajkot also convicted present applicant for the offences punishable under Section 323 of the Indian Penal Code and

R/CR.MA/619/2021 ORDER

imposed a punishment of one year simple imprisonment. It was further ordered to undergo both the imprisonment concurrently. Against the aforesaid order, present applicant preferred an appeal before the District and Sessions Court in the year 2020.

3.3. During the pendency of the aforesaid appeal, disputes between the applicant and respondent no.2 were settled and they opted for customary divorce. It is in the aforesaid premises, present applicant preferred present application under Section 482 of the Criminal Procedure Code with a prayer to quash the order dated 27/12/2019 passed by the learned 4th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.5701 of 2015 arising out of FIR being CR-II- 116 of 2015 dated 30/06/2015 registered with Mahila Police station, Rajkot for the offences punishable under Section 498(A), 494, 323, 504 and 506 of the Indian Penal Code and consequential proceedings arising out of the same.

4. Mr. Niyant Bhimani, learned advocate for the applicant submitted that disputes between the applicant husband and respondent no.2 wife are settled and affidavit to that effect is filed by the wife at page-49 of the present petition stating that now there is no dispute between the husband and wife and the parties have amicably resolved the dispute between them and now she does not have any objection if the the order dated 27/12/2019 is quashed and set aside. Mr. Bhimani, learned advocate further drew attention of the Court to the additional documents supplied by the applicant which were received by the Court through e-mode and the same are taken on record. Mr. Bhimani, learned advocate relied upon the

R/CR.MA/619/2021 ORDER

compromise pursis filed by the parties jointly before the Court of District and Sessions Judge, Rajkot in Criminal Appeal No.26 of 2020 whereby also the applicant and respondent no.2 have jointly submitted before the Court that if the appeal preferred by the applicant is allowed, respondent no.2 does not have any objection. Aforesaid pursis was filed on 05/11/2020. Mr. Bhimani, learned advocate further submitted that customary divorce is permissible in respect of the applicant and respondent no.2 and submitted that the applicant and respondent no.2 have opted for customary divorce and an agreement in respect of the aforesaid customary divorce is also executed between the applicant and respondent no.2 on 05/10/2020. Mr. Bhimani, learned advocate submitted that now since the applicant and respondent no.2 have parted ways and buried the past and have opted to start new life with new hopes, only hurdle in their way would be the order dated 27/12/2019 passed by the learned 4th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.5701 of 2015 and, therefore prayed that in view of the fact that the dispute between husband and wife is settled, even though the criminal appeal is pending challenging the aforesaid order, the Court may exercise the power under Section 482 of the Criminal Procedure Code and quash and set aside the order dated 27/12/2019 passed in Criminal Case No.5701 of 2015 to put and end to the ongoing litigation between the parties which is ultimately arising out of matrimonial dispute.

5. Mr. Kirtan Mistry, learned advocate for respondent no.2 submitted that respondent no.2 wife has also chosen to move on and she does not have any objection if order dated

R/CR.MA/619/2021 ORDER

27/12/2019 as well as proceedings arising out of the FIR referred to in forgoing paragrapahs are quashed and set aside.

6. Ms. Nisha Thakore, learned APP submitted that considering the fact that prayer made by the applicant is in respect of quashing the order of conviction and also considering the fact that the applicant has already preferred criminal proceedings being Criminal Appeal No.26 of 2020, challenging the order of conviction, this Court may not exercise the powers under Section 482 of the Criminal Procedure Code more particularly when the appeal is already pending against the order of conviction and considering the fact that there is no good reason canvassed by the applicant to by pass the statutory remedy.

7. In support of the arguments advanced by Ms. Nisha Thakore, learned APP, she drew attention of the Court to the judgment delivered by the full bench of the Hon'ble Bombay High Court in the case between Sau. Maya Sanjay Khandare and another vs. State of Maharashtra in Criminal Application (APL) No.709 of 2020 wherein the question for consideration before the full bench (A.S. Chandurkar, Vinay Joshi and N. B. Suryawanshi, JJJ) were as under:

"(A) In a prosecution which has culminated in a conviction, whether the power u/s 482 Cr.P.C. Ought to be exercised for quashing the prosecution/conviction altogether, (instead of maintaining it and considering the issue of modification of the sentence) upon a settlement between the convict and the victim/complainant?

     (B)      Whether the broader principles/parameters as set





        R/CR.MA/619/2021                              ORDER

out in Gian Singh vs State of Punjab and another (2012) 10 SCC 303, Narinder Singh vs. State of Punjab (2014) 6 SCC 466 and Parbatbhai Aahir and others vs. State of Gujarat (2017) 9 SCC 641 have been correctly applied in deciding Udhav Kisanrao Ghodse, Ajmatkhan Rehmatkhan and Shivaji Haribhau Jawanjal?"

8. Relying upon the aforesaid judgment, learned APP Ms.Thakore submitted that considering the fact that the applicant and respondent no.2 have settled the dispute between them and also considering the fact that respondent no.2 and the applicant have jointly filed compromise pursis, the appellate court can always take that appropriate pursis and pass appropriate order and this Court may not quash an order of conviction more particularly when conviction appeal is pending before the competent court. She, therefore, prayed for dismissal of the present application on the ground that the applicant be asked to proceed with the criminal appeal which is already filed by the applicant by pointing out to the appellate court that now there is a settlement between the applicant and respondent no.2.

9. In rejoinder, Mr. Bhimani, learned advocate for the applicant drew attention of the Court to para-25 and 26 of the very judgment upon which learned APP has relied upon and pointed out that even the full bench of Bombay High Court has taken note of the fact that in case of Kiran Tulshiram Ingale vs. Anupama P. Gaikwad and ors. reported in 2006 (1) Maharastra Law General (Criminal) 402, the Division Bench of the Bombay High Court observed that inherent powers under Section 482 of the Code of Criminal Procedure can be exercised for quashing criminal proceedings at any stage especially when those arising out of matrimonial dispute

R/CR.MA/619/2021 ORDER

and submitted that dispute between the applicant and respondent no.2 is matrimonial dispute, the same also would be covered by the ratio laid down in case of Kiran Tulshiram Ingale (supra). Mr. Bhimani, learned advocate further submitted that full bench of Bombay High Court also considered that the expression "criminal proceedings" would cover the entire journey of the proceedings commencing from its initiation till the proceedings culminate giving it seal of finality. Learned advocate Mr.Bhimani further in support of contention drew attention of this Court to the judgment dated 16/11/2017 passed by the Hon'ble Justice Mr. J. B. Pardiwala in Criminal Misc. Application No.27481 of 2017 for quashing and setting aside the FIR and drew attention of this Court that in that case also, the application was preferred against conviction and the appeal was pending. In that application also, offence against the applicant husband was registered under Section 498(A), 504 read with Section 114 of the Indian Penal Code and Section 3 of the Dowry Prohibition Act and there also compromise was arrived at between the parties and there was a reunion between the husband and wife and this Court, relying upon another judgment of Full Bench of Bombay High Court in case of Abasaheb Yadav Honmane

Maharashtra Law General 856 at page 12 of the judgment, was pleased to quash and set aside the order of conviction. Mr. Bhimani, learned advocate also relied upon the order dated 02/03/2020 in Criminal Misc. Application No.901 of 2020 wherein also this Court (Coram: S. H. Vora, J.), was pleased to quash and set aside the order of conviction in matrimonial dispute. Learned advocate Mr. Bhimani, therefore, by way of rejoinder submitted that in view of the

R/CR.MA/619/2021 ORDER

aforesaid orders and judgments relied upon by him and considering the fact that dispute between the applicant and respondent no.2 is also of matrimonial nature which is amicably settled, now no fruitful purpose would be served by relegating the applicant to continue with the appeal and to point out the settlement to the learned Sessions Judge to get the conviction quashed and prayed for quashing of the order dated 27/12/1979 and also consequential proceedings arising out of the FIR No.CR-2-116 dated 30/06/2015.

10. Having heard all the learned advocates appearing for the respective parties, this Court is of the view that considering the fact that the dispute between the applicant and respondent no.2 is of matrimonial nature which is settled between them, settlement pursis is also placed on record before the appellate court in the court of learned District and Sessions Judge, Rajkot in Criminal Appeal No.26 of 2020 and also considering the fact that customary divorce is taken place between the applicant and respondent no.2 which is also produced on record by way of additional document by the applicant and respondent no.2, therefore, if these documents are considered in light of the affidavit filed by respondent no.2, it is crystal clear that now the applicant and respondent no.2 have parted past and they want to start new life and, therefore, respondent no.2 wife has no objection if this petition is allowed.

11. Considering the fact that in the past also in matrimonial dispute, this Court has exercised powers under Section 482 of the Criminal Procedure Code by way of judgment dated 16/11/2017 in Criminal Misc. Application No.27481 of 2017

R/CR.MA/619/2021 ORDER

and order dated 02/03/2020 in Criminal Misc. Application No.901 of 2020, this Court is of the opinion that when the applicant and respondent no.2 are going to start new life, only because of hurdle of the proceedings challenged herein in starting new life, the order of conviction dated 27/11/2019 is required to be quashed and set aside.

12. Hence, present petition is allowed. Order dated 27/11/2019 passed by the 4th Additional Judge, Rajkot in Criminal Case No.5701 of 2015 and consequential proceedings thereof are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to cost. Direct service is permitted.

(NIRZAR S. DESAI,J) ila