Jitendrasinh @ Jito Aniruddhsinh ... vs State Of Gujarat
2021 Latest Caselaw 14931 Guj

     R/SCR.A/7997/2021                             ORDER DATED: 23/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 7997 of 2021

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               JITENDRASINH @ JITO ANIRUDDHSINH VADHER
                                 Versus
                          STATE OF GUJARAT
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Appearance:
MR PREMAL S RACHH(3297) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MRS KRINA CALLA, APP (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 23/09/2021

                              ORAL ORDER

1. By way of this application filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicants have prayed for following substantial reliefs:

"(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction calling for the records and proceedings of F.I.R. being registered as C.R. No. I-305/2014 registered with City 'B' Division Police Station, Jamnagar and further be pleased to quash the impugned F.I.R., resultant Charge Sheet No.256/2014 as also order of conviction 04.10.2018 passed by Ld. 2nd Additional Chief Judicial Magistrate, Jamnagar in Criminal Case No.8771/2014 and all proceedings arising therefrom, in the interest of justice;

(B) YOUR LORDSHIPS be pleased to stay the further proceedings of F.I.R. being registered as C.R. No. I-305/2014 registered with City 'B' Division Police Station and all proceedings arising therefrom and pursuant thereto, pending the admission, hearing

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and final disposal of this petition, in the interest of justice;"

2. Necessary facts giving rise to filing of the present application are stated to be as under:

2.1 That the respondent no.2 on 28.01.2009, has lodged the impugned FIR alleging that the applicant no.1 slapped him and inflicted knife blow, whereas, applicant no.2 gave kick and fist blows and thereby both have committed the alleged offence punishable under Sections 323, 324 and 114 of IPC and Section 135(1) of G.P. Act. After conclusion of investigation, charge-sheet was filed. Before the trial Court, the prosecution examined the witnesses in support of charges and at the end of trial, the learned trial Court has convicted both the applicants under Section 323 read with Section 114 of IPC and sentenced them to suffer simple imprisonment of 18 months and fine of Rs.1000/- and in default of payment of fine simple imprisonment of 10 days was awarded.

2.2 Being aggrieved by the conviction and sentence, both the applicants preferred appeal before the learned Sessions Court, Jamnagar which is registered as Criminal Appeal No.151 of 2018 wherein the learned Appellate Court was pleased to suspend the sentence awarded by the learned trial Court pending the appeal.

During the pendency of the appeal, the applicants have filed the present application for quashing of

R/SCR.A/7997/2021 ORDER DATED: 23/09/2021

impugned FIR, charge-sheet and order of conviction mainly on the ground that the dispute in question which is purely personal in nature, has been amicably settled between the parties and now, continuation of impugned criminal proceedings amounts to sheer abuse of process of law.

3. In the aforesaid facts, the applicants have prayed for quashing and setting aside the impugned FIR and consequential proceedings arising out of the aforesaid FIR and the order of conviction.

4. Heard Mr. Premal Rachh, learned advocate for the applicants, Mr. Nandish Thackar, learned advocate for the respondent no.2-original complainant and Mrs. Krina Calla, learned APP for the respondent-State.

5. Mr. Rachh, learned advocate for the applicants would submit that the dispute has been resolved by way of amicable settlement as parties belong to the same locality and an amicable settlement has been arrived at between the parties so as to maintain harmony, peaceful and healthy personal relationships in future. He would further submit that the respondent no.2 has agreed to give consent for quashing of impugned criminal proceedings and he does not want to prosecute the impugned criminal proceedings and considering the nature of dispute no public policy is involved in the case. Strong reliance has been placed on the decision in case of Ramgopal Versus

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State of Madhya Pradesh reported in 2021 (0) AIJEL-SC 67811 to submit that having regard to the nature of offence and the fact that the parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, the High Court can quash such proceedings in exercise of its inherent powers under Section 482 of the Code, even if the offences are non-compoundable.

6. Mr. Nandish Thackar, learned advocate for the respondent no.2 reiterating the facts of settlement affidavit would submits that the informant-respondent no.2 do not wish to prosecute the applicants as the impugned FIR was lodged out of misunderstanding, misconception, desperation, anger and anxiety.

7. Mrs. Krina Calla, learned APP has vehemently opposed the application mainly on the ground that once conviction is awarded by the trial Court and when appeal is pending before the Appellate Court, the power cannot be exercised under Section 482 of the Code by this Court.

8. I have heard learned advocates appearing for the respective parties.

9. Before adverting to the issue raised in the application, let examine the scope of powers exercisable by the High Court under Section 482 of the Code. In case of Gian Singh Vs. State of Punjab reported in 2012 10 SCC

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303, 3Judge Bench of the Apex Court held in paragraph-61 as under:

"61.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 F.I.R may be exercised where the offender and 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 victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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 pre-dominatingly civil flavour stand on 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not

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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 wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

10. In case of State of Madhya Pradesh Vs. Laxmi Narayan & Ors. reported in 2019 5 SCC 688, it was held that:

"10(1) That the power conferred under Section 482 of the Code to quash the criminal proceedings for the noncompoundable 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;

(2) 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;

(3) Similarly, such power is not to be exercised for the offences under the special statutes like the 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;

(4) xxx xxx xxx (5) 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 impact on society, on the ground that there is a settlement/compromise between the victim and

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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. In light of the settled principle of law, it appears that the criminal proceedings involving nonheinous offences or where the offences are predominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction.

12. In the facts of the present case, the dispute is private in nature and parties have voluntarily agreed to settle the dispute and there is no coercion undue force on them for arriving at settlement. The offence alleged cannot be serious in nature for quashing of which would overwrite public interest. The parties are belonging to same locality. Thus, this Court is of the considered view that in view of settlement, no fruitful purpose would be served by continuing the proceedings and thus, further continuation of proceedings would amount to abuse of process of the Court and therefore, quashing of criminal proceedings will advance peace and harmony between the parties who have decided to forget the dispute. Thus, to secure the ends of justice, the impugned FIR is required to be quashed and set aside in exercise of powers conferred under Section 482 of the Code.

R/SCR.A/7997/2021 ORDER DATED: 23/09/2021

13. Hence, the present application is allowed and the impugned FIR bearing C.R.No.I-305 of 2014 registered with City 'B' Division Police Station, Jamnagar, Dist.- Jamnagar filed against present applicants and the judgment and order of conviction dated 04.10.2018 passed in Criminal Case No.8771 of 2014 passed by learned 2nd Additional Chief Judicial Magistrate, Jamnagar are hereby quashed and set aside qua the present applicants. Learned Sessions Judge, Jamnagar shall pass appropriate order in the pending criminal appeal being Criminal Appeal No.151 of 2018. Direct service is permitted.

(ILESH J. VORA,J) TAUSIF SAIYED