Ashwini Kumar S/O. Naran Kumar vs State Of Gujarat
2021 Latest Caselaw 15384 Guj

      R/CR.MA/11235/2019                              ORDER DATED: 01/10/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC. APPLICATION NO. 11235 of 2019
                            With
 CRIMINAL MISC. APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2021
                              In
        R/CRIMINAL MISC. APPLICATION NO. 11235 of 2019
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                      ASHWINI KUMAR S/O. NARAN KUMAR
                                   Versus
                             STATE OF GUJARAT
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Appearance:
DELETED(20) for the Applicant(s) No. 1,2
Ms DIPIKA P BAJPAI(8365) for the Applicant(s) No. 3
MR K.R. CHAKWAVALA (NOTICE SERVED) (4) 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 : 01/10/2021

                                ORAL ORDER

RULE. Learned APP and learned advocate Mr. Chakwavala waive service of notice of rule on behalf of respondent Nos.1 & 2 respectively. With the consent of both the sides, the matter is heard finally.

1. By way of this petition filed under section 482 of the Code of Criminal Procedure, the petitioner has prayed to quash and set aside, on the basis of settlement, the impugned complaint being C.R. No. I - 3 of 2019 registered with Ahmedabad Rural Mahila Police Station, Ahmedabad Rural for offences punishable under Sections 498A, 323, 506(2), 339 and 114 of IPC and all consequential proceedings initiated in pursuance thereof.

2. Learned advocate for the petitioner submitted that the parties have

R/CR.MA/11235/2019 ORDER DATED: 01/10/2021

settled the dispute amicably during the mediation process and there remains no ill-will or dispute between them. It was, therefore, prayed that the impugned complaint may be quashed on the basis of settlement between the parties.

3. The respondent-original complainant appeared before the Court in person and affirmed about the factum of settlement of dispute with the petitioner. She has consented to the quashment of the impugned complaint filed against the petitioner.

4. Learned Additional Public Prosecutor submitted that any first information report should be quashed in accordance with the guidelines framed by the Apex Court and the parameters laid down therein.

5. On 07.07.2021 this Court had passed the following order in the interim application being Cr.M.A. No.1 of 2021 filed in this matter:

"Ms. Dipika Bajpai, learned advocate for the applicant submits that the matter was order to be sent to Mediation Centre for exploring the possibility of settlement. She has stated that because of the Pandemic situation and as the parties were not interested in virtual mediation, the Mediator could not see any progress and thus prayed for early hearing of the matter.

The Report of the Mediator is on record which corroborate the fact that the parties could not meet at the High Court annexed Mediation Centre since one of the parties was not interested in virtual mediation. Let the parties be referred to the Mediation Centre at Family Court, Ahmedabad and the Mediator at Family Court, Ahmedabad to take up the case and try to resolve the issues between the parties and a Report be submitted.

Let the matter be listed on 11.8.2021. Interim relief granted earlier to continue till then."

       R/CR.MA/11235/2019                               ORDER DATED: 01/10/2021



5.1      Pursuant to the above order, the Mediator has placed report dated

17.08.2021, which states that the parties have settled their dispute through the process of mediation. The parties have executed a Memorandum of Understanding dated 20.07.2021, which reads thus:

"MEMORANDUM OF UNDERSTANDING

The above referred matter was sent for the mediation to the mediation center Family Court, Ahmedabad as per the order dtd. 07/07/2021 passed by the Hon'ble High Court of Gujarat.

In view of the order passed by the Hon'ble High Court, both the parties of the above referred application remained present before Ld. Shri Umesh Majmudar at Mediation Center, Family Court, Ahmedabad on 20/07/2021. With the intervention of the mediator, in presence of the concerned advocates, both the parties have arrived to an amicable settlement and decided to get separated and to file consent divorce petition u/s 13(B) of Hindu Marriage Act, 1955 at the earliest, before The Ld. Family Court, Ahmedabad.

It is also decided that the applicant side (brother of the applicant) has agreed to pay lumpsum amount of Rs.18,00,000/- (Rupees Eighteen Lakh) to the respondent wife as permanent alimony as full and final settlement, in two installments.

That both the parties will withdraw the cases which are pending before the learned Family Court, Ahmedabad. That the appiicant's side shall file quashing petition of the subject FIR and for the domestic violence case before the Hon'ble High Court of Gujarat, whereby the consent shall be given by the respondent side.

It is also agreed that valuables, belongings, stridhan etc. shall remain with the concerned parties and there shall be no demand of any of the above articles in future by any of the parties. The report is forwarded to Hon'ble High Court through Ld. Principal Judge, Family Court, Ahmedabad with his valuable remark."

6. This Court heard learned advocates on both the sides and perused

R/CR.MA/11235/2019 ORDER DATED: 01/10/2021

the material on record. The offence alleged against the petitioner is non-

compoundable but, in Gian Singh v. State of Punjab and another reported in 2012 (10) SCC 303, the Apex Court has set out the criteria wherein the inherent jurisdiction of the High Court could be exercised for quashing a First Information Report on the basis of settlement. 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 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

R/CR.MA/11235/2019 ORDER DATED: 01/10/2021

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."

7. 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 a First Information Report lodged for the offences punishable under sections 307 and 34 IPC could be quashed on the basis of settlement between the parties. Para-13 reads 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

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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; (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."

8. In the present case, the parties have settled the dispute through the Mediation Centre. Therefore, there exists no scope for further proceedings in the matter and the continuance of proceedings would lead to wastage of precious judicial time. Hence, the Court is of the opinion

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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.

9. In the result, the petition is allowed. The impugned complaint being C.R. No. I - 3 of 2019 registered with Ahmedabad Rural Mahila Police Station, Ahmedabad Rural and all the consequential proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.

(GITA GOPI, J) PRAVIN KARUNAN