Ilyas Yusuf Umar vs State Of Gujarat
2021 Latest Caselaw 17779 Guj

      R/CR.MA/11977/2019                            ORDER DATED: 26/11/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 11977 of 2019
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                            ILYAS YUSUF UMAR
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR M.NISAR VAIDHYA(3386) for the Applicant(s) No. 1,3,4
MR SADIK A ANSARI(5388) for the Applicant(s) No. 1,3,4
MR YASH N NANAVATY(5626) for the Applicant(s) No. 2
MR.S G PATHAN(6539) for the Respondent(s) No. 2
MR. PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 26/11/2021

                               ORAL ORDER

1. Rule. Mr. Pranav Trivedi, learned Additional Public Prosecutor and Mr. S.G.Pathan, 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 C.R. No. I- 8 of 2019 against the applicants registered with Mahila Police Station, Dist.: Bharuch for offfences punishable under sections 406, 498A, 495, 504 and 114 of the IPC.

3. Mr. Sadik Ansari, learned advocate for the applicants, submitted that upon the intervention of the elders of the family and society, dispute between the respondent No.1 and the applicant No.1 is amicably settled outside the Court and the matrimonial issues have been settled and the parties have already taken Talaq and there remains no grievance between them. It is submitted that the petitioner No.1, who is staying in Canada, is ready to file undertaking to give his consent for necessary process for the passport of the minor

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daughter. Therefore, in the larger interest of the society, the impugned complaint may be quashed and set aside.

3.1 Learned advocate submitted that the Court may verify the said aspect from the original complainant, respondent no.2- Aafifabanu Ilyas Umar, who is represent by Mr. S.G. Pathan, learned advocate.

4. Mr. Kadri, learned advocate on behalf of Mr. Pathan, learned advocate for the respondent No.2 submitted that due to personal difficulty, Mr. Pathan learned advocate is not in a position to appear before this Court. Mr. Kadri, learned advocate on behalf of Mr. Pathan, learned advocate, identifies the respondent No.2 Aafifabanu Ilyas Umar, who is present before this Court. Ms. Aafifabanu has presented her notarised affidavit dated 5.10.2021 stating that she has already taken Talaq from the other side and thus does not want to pursue the complaint. She states that out of the wedlock, a daughter is born who is aged 8 years and states that she would process for getting passport in the name of minor. Ms. Aafifabanu submits that the applicant No.1 has agreed to give his consent for necessary process for the passport of the minor. Mr. Kadri, learned advocate for respondent no.2, original complainant, concurred with the factum of settlement of the dispute, as advanced by learned advocate Mr. Sadik Ansari appearing for the applicants.

5. The Respondent No.2- complainant is present before the Court. The Court verified about the settlement arrived at between the parties and the fact regarding taking Talaq from the other side and has stated that whatever has been stated in her affidavit dated 5.10.2021 is true and the same is executed in presence of Notary. The respondent no.2, original complainant, categorically stated that she has no grievance against the applicants and that she has no objection

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to the quashment of the impugned first information report filed by her.

6. Mr. Pranav Trivedi, 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.

7. This Court has heard the learned advocates on both the sides and has perused the material on record. The respondent no.2 - original complainant affirmed that dispute with the applicant has been amicably resolved with the intervention of elder of the family and society and the settlement has been arrived at between the parties. Ms. Aafifabanu has presented her notarised affidavit dated 5.10.2021 stating that she has already taken Talaq from the other side and thus does not want to pursue the complaint. The applicant No.1 has agreed to give his consent for necessary process for the passport of the minor.

8. In the case of Social Action Forum for Manav Adhikar and another V. Union of India, Ministry of Law and Justice and others, reported in 2018 (10) SCC 443, the Apex Court made an elaborate discussion on the scope and powers of the High Court under Section 482 of Cr.P.C. in matrimonial matters. The observations made in paragraphs- 15, 39 and 40 are relevant. It read thus:-

"15. On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73 of 2015 has been made to have a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC. It is worthy to note here that during the pendency of this Writ Petition, the judgment had been pronounced in Rajesh Sharma (supra). The Court in Rajesh Sharma (supra) issued the following guidelines:-

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"19.(i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/ wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

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(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

iv) If a bail application is filed with at least one clear day ‟ss notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of

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matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death."

39. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove.

40. Direction No. 19(iii) is modified to the extent that 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 (supra), shall dispose of the same."

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:

"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

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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

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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 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

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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;

(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

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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 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. The fact regarding Talaq being taken by the respondent No.2 from applicant No.1 and 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

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ends of justice.

12. In the result, the petition is allowed. The impugned first information report being FIR being C.R. No. I- 8 of 2019 against the applicants registered with Mahila Police Station, Dist.: Bharuch and the proceedings, if any, initiated in pursuance thereof are quashed and set aside. Rule is made absolute.

13. The petitioner No.1, who is at present staying in Canada, to file an undertaking with regard to giving his consent for necessary process for the passport of the minor daughter. Learned advocate for the petitioner should call for the said undertaking through email and the produced the same before the Registry. A copy of the said undertaking also be handed over to respondent No.2.

Direct Service is permitted.

(GITA GOPI,J) SAJ GEORGE