Dadubhai Kadubhai Kamaliya vs State Of Gujarat
2021 Latest Caselaw 15103 Guj

     R/CR.MA/19106/2019                                     ORDER DATED: 27/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 19106 of 2019

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                          DADUBHAI KADUBHAI KAMALIYA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA, ADVOCATE assisted by SHREY DAVE,
ADVOCATE(437) for the Applicant(s) No. 1,2,3,4
MS BELA A PRAJAPATI, ADVOCATE for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                   Date : 27/09/2021

                                    ORAL ORDER

Learned advocate Ms. Bela Prajapati submits that he appears on behalf of respondent no.2 - original complainant and seeks permission to file his Vakalatnama. Registry to accept his Vakalatnama.

1. RULE. Ms. Monali Bhatt, learned Additional Public Prosecutor and Ms. Bela Prajapati, learned advocate for the petitioners waive service of notice of rule on behalf of respective parties.

2. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C.") seeking quashment of the FIR being C.R. No.I- 36 of 2019 registered with Bagdana Police Station,

R/CR.MA/19106/2019 ORDER DATED: 27/09/2021

Bhavnagar for the offences punishable under Sections 395, 325 and 323 of Indian Penal Code, Section 135 of Gujarat Police Act and under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short, "the Atrocities Act") and the proceedings initiated pursuant thereto.

3. Ms. B.M.Mangukiya, learned advocate for the applicants submitted that, the parties have settled the dispute amicably outside the Court and that there remains no grievance between them. It was submitted that the parties are known to each other and are residing in the same village and therefore, in the larger interest of the society, the impugned complaint may be quashed and set aside.

4 Learned advocate submitted that the Court may verify the said aspect from the original complainant - respondent no.2.

5. Ms. Bela Prajapati, learned advocate for respondent no.2 - original complainant, concurred with the factum of settlement of the dispute, as advanced by learned advocate Mr.B.M.Mangukiya appearing for the applicants.

6. The defacto complainant - respondent no.2 herein is present before the court, who has been identified by Advocate Ms.Bela Prajapati. The affidavit of

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the original complainant - respondent no.2 dated 21.09.2019 is placed on record and he has affirmed the affidavit and the contents thereof. In the Affidavit dated 21.09.2019 filed by respondent no.2 - original complainant, it has been categorically averred that the dispute with the applicants has been amicably resolved with the intervention of some friend, relatives and people of community. It is also averred that there is no ill-will between the parties and that the original complainant had not sustained any serious injury in the alleged incident. It is also averred that they are residing in the same village and same locality.

7. Ms. Monali Bhatt, learned Additional Public Prosecutor appearing on behalf of the respondent-State submitted that any first information report should be quashed in accordance with the guidelines of the Apex Court and the parameters laid down therein.

8. This Court has heard the learned advocates appearing for the parties and has perused the material on record. 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:

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"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.

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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 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."

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9. 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 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 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;

(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

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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 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

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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."

10. It is required to be noted that the applicants had committed offences punishable under the Atrocities Act. However, none of the ingredients of the offences punishable under sections 3(1)(r)(s) of the Atrocities Act appear to be present in this case. The basic ingredients of the offence under Section 3(1)(r) of the Atrocities Act can be classified as (i) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a

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Scheduled Tribe and (ii) in any place within public view. The offence under Section 3(1)(r) would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Atrocities Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or a Scheduled Tribe. Another key ingredient of the provision is that the insult or intimidation should be in "any place within public view".

11. In Swaran Singh and others V. State, Through Standing Counsel and Others, [(2008) 8 SCC 435], the Apex Court has drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building, e.g. in a lawn outside a house and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building but some members of the public are there (not merely relatives or friends), then it would not be an offence since it is not in the public view.

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12. In the case of Parthvi Raj Chauhan v. Union of India and Others reported in [(2020) 4 SCC 727], the Hon'ble Supreme Court (per: Hon'ble Justice S. Ravindra Bhatt) referred to the judgment rendered in case Raghunathrao Ganpatrao vs. Union of India, reported in 1993 (1) SCR 480, held as under:

"In our considered opinion this argument is misconceived and has no relevance to the facts of the present case. One of the objectives of the Preamble of our Constitution is 'fraternity assuring the dignity of the individual and the unity and integrity of the nation.' It will be relevant to cite the explanation given by Dr. Ambedkar for the word 'fraternity' explaining that 'fraternity means a sense of common brotherhood of all Indians.' In a country like ours with so many disruptive forces of regionalism, communalism and linguism, it is necessary to emphasis and re-emphasis that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis. In this view, any measure at bringing about equality should be welcome."

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12.1 In a similar way, the Hon'ble Supreme Court in case of Nandini Sundar Vs. State of Ghhatisgarh, reported in 2011 (7) SCC 457, held that:

"The Constitution itself, in no uncertain 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."

12.2 In the case of Parthvi Raj Chauhan v. Union of India and Others (supra) while dealing with the constitutional validity of Section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it was held as under:

"12. The Court can, in exceptional cases, exercise power under Section 482 Cr.P.C. for quashing the cases to prevent misuse of provisions on settled parameter, as already observed while deciding the review petitions. The legal position is clear and no argument to the contrary has been raised."

13. In view of the discussions made hereinabove and in view of the settlement arrived at between the parties, there exists no scope for any

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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.

14. In the result, the petition is allowed. The FIR being C.R. No.I-36 of 2019 registered with Bagdana Police Station, Bhavnagar for the offences punishable under Sections 395, 325 and 323 of Indian Penal Code, Section 135 of Gujarat Police Act and under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the proceedings initiated in pursuance thereof are quashed and set aside qua the present applicants. Any compensation amount received from the State be returned back within three months of this order. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(GITA GOPI,J) URIL RANA