Gujarat High Court

Nileshbhai Bhailalbhai Variya vs State Of Gujarat on 10 February, 2023

Bench: Gita Gopi

     R/CR.MA/14462/2017                                        ORDER DATED: 10/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC.APPLICATION NO. 14462 of 2017
                            With
CRIMINAL MISC.APPLICATION (FOR FIXING DATE OF HEARING) NO. 1
                           of 2023
                              In
        R/CRIMINAL MISC.APPLICATION NO. 14462 of 2017
==========================================================
                 NILESHBHAI BHAILALBHAI VARIYA & 1 other(s)
                                  Versus
                       STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR PIYUSH B TRIVEDI for MR PRATIK B BAROT(3711) for the Applicant(s)
No. 1,2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
MR JATIN TRIVEDI for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 10/02/2023

                              COMMON ORAL ORDER

1. Rule. Learned Additional Public Prosecutor

waives service of Rule on behalf of the

respondent-State and Mr. Trivedi, learned

advocate waives service of Rule on behalf of

the original complainant-respondent no.2.

2. This application has been filed under

Section 482 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as

R/CR.MA/14462/2017 ORDER DATED: 10/02/2023

"Cr.P.C.") for quashing and setting aside

the FIR bearing CR No.II-30/2017 registered

with Rajgadh Police Station, District

Panchmahal for offences punishable under

Sections 504, 506(2), 114 of the IPC and

Sections 3(1)(r), 3(2)(va) of the Scheduled

Castes and Scheduled Tribes (Prevention of

Atrocities Act), 1989 as well as all

subsequent proceedings arising therefrom.

3. Learned advocate for the applicant submits

that the parties have settled the dispute

amicably outside the Court and that there

remains no grievance between them.

Therefore, in the larger interest of the

society, the impugned FIR may be quashed and

set aside.

4. Learned Additional Public Prosecutor for the

respondent-State submitted that any FIR

should be quashed in accordance with the

guidelines of the Hon'ble Apex Court and the

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parameters laid down therein.

5. The complainant - Sunilkumar Khetabhai

Bhuriya is present before this Court and is

represented by learned advocate Mr. Jatin

Trivedi. Let his Vakalatnama be accepted on

record. The complainant states that he was

Talati-cum-Mantri in Village Dhodhambha and

when the complainant asked for the requisite

fees under the RTI Act, the issue arose and

the person who intervened was villager who

is at present Sarpanch of the Village. The

complainant further states that he received

compensation from the Government, which he

would remit back to the State Exchequer. The

complainant has also filed an affidavit

stating that now there is no grievance

between them and continuation of FIR would

rather affect the society. The Court

verified the contents of the compromise with

the original complainant-respondent no.2 who

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is present before the Court. The original

complainant affirmed the affidavit, wherein

terms of settlement have been recorded. The

original complainant categorically stated

that the complainant has no grievance

against the applicants and that the

complainant has no objection to the

quashment of the impugned FIR.

6. 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 inherent jurisdiction is distinct and different from the power given to

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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

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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 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

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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 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

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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 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

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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

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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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8. In the case of Prathvi 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 the case of Raghunathrao

Ganpatrao vs. Union of India, reported in

1993 (1) SCR 480, wherein it has been 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

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should feel that he is Indian first irrespective of other basis. In this view, any measure at bringing about equality should be welcome."

9. In a similar way, the Hon'ble Supreme

Court in the 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."

10. In the case of Prathvi Raj Chauhan

(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

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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."

11. In view of the discussions made hereinabove

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 ends of justice.