Viral Chandrakant Shah vs State Of Gujarat
2021 Latest Caselaw 16658 Guj

     R/CR.MA/14795/2020                                 ORDER DATED: 25/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 14795 of 2020

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                          VIRAL CHANDRAKANT SHAH
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR CHETAN K PANDYA(1973) for the Applicant(s) No. 1
MR KAIVAN K PATEL(6338) 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 : 25/10/2021

                                 ORAL ORDER

1. This petition has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the complaint being FIR No.11191020201416 of 2020 dated 26.8.2020 registered with Vastrapur Police Station, Ahmedabad for offfences punishable under sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the proceedings initiated pursuant thereto.

2. Mr. Chetan Pandya, learned advocate for the applicant, submitted that the complainant- respondent No.2 Nileshbhai Shankarbhai Parmar is proprietor of Mahavir Mobiles, Shop No.12, Ganpat Complex, Ashram Road, Ahmedabad. The allegation is that before 5 months, the applicant purchased Mobile worth Rs.1,09,000/- of Samsung Company and had not made the payment of the same. Thus because of the said dispute regarding payment of Mobile money, the FIR came to be lodged by the complainant. It is submitted that the parties

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have settled the dispute amicably outside the Court and that there remains no grievance between them and therefore, in the larger interest of the society, the impugned complaint may be quashed and set aside.

2.1 Learned advocate submitted that the Court may verify the said aspect from the original complainant, respondent no.2- Nileshbhai Shankarbhai Parmar.

3. Mr. Kaivan Patel, learned advocate for respondent no.2, original complainant, concurred with the factum of settlement of the dispute, as advanced by learned advocate Mr. Chetan Pandya appearing for the applicant. The complainant is present before the Court and is identified by Mr. Kaivan Patel, learned advocate for the respondent No.2- complainant.

4. The Court verified the contents of the compromise with the original complainant-Nileshbhai Shankarbhai Parmar. The respondent no.2, original complainant, affirmed about the execution of the Affidavit dated 19.4.2021 wherein the facts of settlement have been recorded. The respondent no.2, original complainant, categorically stated that the issue has cropped up regarding the dispute about the payment of mobile money and says that the because of misunderstanding, the FIR came to be lodged by him and thereafter the misunderstanding came to be removed through negotiations and thus he proposes to quash the FIR. In support of his affidavit, he has also relied on the affidavits of Mr. Yogesh Sanjaykumar Rai, Mr. Mayursinh Ghanshyamsinh Jadeja, Ms. Jyotiben Dipakbhai Mashroo (Thakkar), Mr. Prince Shal S/o. Prakashchandra Shah and Mr. Hardik Shah S/o. Prakashchand Shah to affirm the fact

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that the disputes have been resolved. It is stated that the respondent No.2 has no grievance against the applicant and that he has no objection and gives his consent to the quashment of the impugned first information report filed by him.

5. Mr. Pranav Trivedi, 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.

6. This Court has heard the learned advocates on both the sides and has perused the material on record. In the Affidavit dated 19.4.2021 filed by respondent no.2, original complainant, it has been categorically averred that the dispute with the applicant has been amicably resolved and that the impugned complaint had been filed because of some misunderstanding and misconception. It is also averred that there is no ill-will between the parties and has no objection if the impugned FIR is quashed and set-aside.

7. 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

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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 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

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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."

8. 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 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

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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 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."

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9. Further, in the case of Prithvi Raj Chauhan vs. Union of India & Others rendered in Writ Petition (C) No.1015 of 2018, the Apex Court has observed thus:

"3. It is this idea of India, - a promise of oneness of and for, all people, regardless of caste, gender, place of birth, religion and other divisions that Part III articulates in four salient provisions : Article 15, Article 17, Article 23 and Article 24. The idea of fraternity occupying as crucial a place in the scheme of our nation's consciousness and polity, is one of the lesser explored areas in the constitutional discourse of this court. The fraternity assured by the Preamble is not merely a declaration of a ritual handshake or cordiality between communities that are diverse and have occupied different spaces: it is far more. This idea finds articulation in Article 15. That provision, perhaps even more than Article 14, flashes out the concept of equality by prohibiting discrimination and discriminatory practices peculiar to Indian society. At the center of this idea, is that all people, regardless of caste backgrounds, should have access to certain amenities, services and goods so necessary for every individual. Article 15 is an important guarantee against discrimination. What is immediately noticeable is that whereas Article 15(1) enjoins the State (with all its various manifestations, per Article 12) not to discriminate on the proscribed grounds (religion, race, caste, sex (i.e. gender), place of birth or any of them), Article 15(2) is a wider injunction : it prohibits discrimination or subjection to any disability of anyone on the grounds of religion, caste, race, sex or place of birth in regard to access to shops, places of public entertainment, or public restaurants, (Article 15(2)(a)). Article 15(2)(b) proscribes the subjection of anyone to any disability on the proscribed grounds (i.e. discrimination on grounds of religion, caste, race, sex or place of birth) with regard to "the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.."

11. In a similar vein, the court in Nandini Sunder v. State of Chhatisgarh again commented on this aspect and said that "the Constitution itself, in no uncertain

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terms, demands that the State shall strive, incessantly and consistently, to promote fraternity amongst all citizens such that dignity of every citizen is protected, nourished and promoted."

10. In the present case, the impugned complaint was filed on 26.08.2020 and the Affidavit of the original complainant, respondent no.2 herein, regarding settlement of the dispute has been executed on 19.04.2021. 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.

11. In the result, the petition is allowed. The impugned first information report being FIR No.11191020201416 of 2020 dated 26.8.2020 registered with Vastrapur Police Station, Ahmedabad and the proceedings initiated pursuant thereto are quashed and set aside. Rule is made absolute.

12. Any money received by way of compensation from the Government be refunded back to the State within two months from the date of this order.

(GITA GOPI,J) SAJ GEORGE