Sumit Vikramsinh @ Vikubha Zala vs State Of Gujarat
2023 Latest Caselaw 39 Guj

   R/CR.MA/5829/2020                                 ORDER DATED: 03/01/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 5829 of 2020
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                       SUMIT VIKRAMSINH @ VIKUBHA ZALA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR KRUNAL G PATEL(8525) for the Applicant(s) No. 1,2
MS PRIYANKA A. GUPTA for MR NARESHKUMAR A RATHOD(10729) for
the Respondent(s) No. 2
MR HARDIK MEHTA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 03/01/2023
                                 ORAL ORDER

1. RULE. Mr. Hardik Mehta, learned Additional Public Prosecutor and Ms. Priyanka A. Gupta, learned Advocate, waive service of notice of Rule on behalf of respondents No.1 & 2 respectively.

2. This application has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the First Information Report bearing I-C.R. No.83 of 2019 registered with Kathlal Police Station, Kheda, Nadia for the offences punishable under Sections 363, 366, 376(1) and 114 of the Indian Penal Code and under Sections 3(a), 4, 5(L), 12 and 17 of the Protection of Children from Sexual

R/CR.MA/5829/2020 ORDER DATED: 03/01/2023

Offences (POCSO) Act, 2012 and the proceedings initiated in pursuant thereto.

3. Learned Advocate for the applicants submitted that the applicant No.1 and the victim girl have married in the presence of the family members and relatives and others on 14.02.2020 and the marriage ceremony has taken place at Kesharpura, District Kheda, Nadiad. The marriage was registered on 25.02.2020 at Serial No.0000014 of Volume 00000001 of Register of Marriages. Learned Advocate submitted that the Court may verify the said aspect from the original complainant, respondent no.2.

4. Learned Advocate Ms. Priyanka Gupta for learned Advocate Mr. Nareshkumar A. Rathod for the respondent no.2, original complainant states that the complainant is before this Court and is the father of the victim girl. It is further submitted that the complainant has given his consent for quashing of the First Information Report since the applicant No.1 and the victim girl have married in accordance with the Hindu customs and rites. The Affidavit of the

R/CR.MA/5829/2020 ORDER DATED: 03/01/2023

original complainant dated 03.01.2023 is tendered before this Court.

5. I have heard learned Advocates appearing for the parties and perused the records of the case. This Court has verified from the complainant - Vinubhai Baldevsinh Zala who states that he has no objection if the First Information Report is quashed as his daughter and the applicant No.1 have married, the marriage has been registered and out of the wedlock, there is a child who was born on 03.05.2022.

6. The victim girl is also present in the Court and who through an Affidavit dated 05.03.2020 has prayed for quashing of the First Information Report stating that she does not want the proceedings to continue qua the applicant. It is further stated by the victim girl that she was in love relation with the applicant No.1 and out of grievance, the First Information Report was filed but now she is married with the applicant No.1 and has a child out of the wedlock. It is also stated by the victim girl that she is having peaceful and happy married life, she confirms the Affidavit

R/CR.MA/5829/2020 ORDER DATED: 03/01/2023

and has given her consent for quashing of the First Information Report.

7. The statement of the victim was recorded by the police and in the statement, she confirms her love relation and consensual relation with the applicant No.1. At the time of incident, the victim was shown to be aged as 17 years, 11 months and 30 days. Considering her age and the statement given, it appears that she had at the relevant time, on her own volition had taken the mature decision of joining the applicant No.1 and now she is married to the applicant No.1; the marriage has been registered and there is a child out of the wedlock. In addition, the complainant himself has no grudge against the applicants and has also given his consent for quashing of the First Information Report.

8. Learned Additional 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.

R/CR.MA/5829/2020 ORDER DATED: 03/01/2023

9. This Court has heard the learned advocates on both the sides and has perused the material on record. In the Affidavit dated 03.01.2023 filed by respondent no.2, original complainant, it has been categorically averred that the dispute with the applicants has been amicably resolved.

10. It is true that certain section of IPC is non- compoundable and that the other sections 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 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

R/CR.MA/5829/2020 ORDER DATED: 03/01/2023

(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

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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."

11. 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;

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(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 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

R/CR.MA/5829/2020 ORDER DATED: 03/01/2023

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."

12. In view of the above, this Court is of the view that 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.

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13. In the result, the application is allowed. The impugned First Information Report bearing I-C.R. No.83 of 2019 registered with Kathlal Police Station, Kheda, Nadiad and the proceedings initiated in pursuance thereof qua the applicants are quashed and set aside. Rule is made absolute.

Direct Service is permitted.

Sd/-

(GITA GOPI,J) CAROLINE