Gujarat High Court
Jagdish @ Jago Parsottambhai Makwana vs State Of Gujarat on 25 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 3552 of 2025
(FOR QUASHING & SET ASIDE FIR/ORDER)
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JAGDISH @ JAGO PARSOTTAMBHAI MAKWANA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DHRUV R THAKKAR(11280) for the Applicant(s) No. 1
MR ROHAN SHAH APP for the Respondent(s) No. 1
MR DIGVIJAYSINH V CHAUHAN for Respondent No.2-3
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 25/04/2025
ORAL ORDER
1. By way of present applications under Section 482
of the Code of Criminal Procedure, 1973
(hereinafter referred to as "CrPC" for short), the
applicant haS prayed for quashing and setting
aside the FIR being C.R. No.11191023220386/2022
registered with Vadaj Police Station, Ahmedabad
for the offences under Sections 363, 366 and
376(2)(N) of the Indian Penal Code (hereinafter
referred to as "IPC" for short") and under
Sections 4, 5(L) and 6 of the POCSO Act.
2. Heard learned advocate, Mr. Dhruv Thakkar for the
applicant, learned APP Mr. Rohan Shah for the
respondent no.1 - State of Gujarat and learned
advocate, Mr. Digvijaysinh V. Chauhan for the
respondent nos.2 and 3.
3. The gist of the FIR is that,
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On the day of incident i.e. on 28.04.2022,
the applicant herein had abducted the minor
daughter of the complainant aged about 15 years
and 7 months from the lawful guardianship of the
complainant and took her at Dhrol, Jamnagar, where
the applicant had committed rape upon her against
her will and wish and thereby committed alleged
offences. These are the sum and substance of the
FIR.
4. Learned advocate, Mr. Thakkar appearing for the
applicant submitted that the impugned FIR is
nothing but an abuse and misuse of process of law
as no offence as alleged has taken place and
despite that, the applicant has been wrongly
arraigned as accused in the commission of crime.
He submitted that in fact, there was love affair
between the applicant and the victim girl, as a
result of which, the victim had eloped with the
applicant herein. He submitted that there is no
dispute about the fact that at the time of
incident, the victim was minor, however on
attaining the age of majority, the victim married
with the applicant and is residing with the
applicant, copy of marriage certificate is
produced on record. He submitted that in fact, the
father of the victim had filed habeas corpus
petition before the Division Bench of this Hon'ble
Court, wherein the victim - corpus was brought
before and she was interviewed by the Division
Bench of this Court and she was also permitted to
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interact with her parents and thus, her wish was
ascertained, however in turn, she stated that she
was not in any illegal confinement and wanted to
accompany with the applicant and on the strength
of the said statement, the said habeas corpus
petition was disposed of. He submitted that
thereafter also, quashing petition was filed
before this Hon'ble Court, however, it was
withdrawn.
5. Learned advocate, Mr. Thakkar submitted that after
the registration of the impugned FIR, the
investigation was put into motion and ultimately
at the end of investigation, the chargesheet has
been filed and the trial is going on before the
court concerned. He submitted that in connection
with the aforesaid FIR, the applicant was arrested
and, thereafter, released on bail by the Hon'ble
Court. He submitted that as stated above, earlier
quashing petition was preferred, which was
withdrawn. He submitted that after the withdrawal
of said application, the complainant and the
victim both have been examined by the court
concerned and both have supported the case of the
prosecution. He, however, submitted that
subsequent the victim girl solemnized her marriage
with the applicant and situation was changed,
therefore, an application under Section 311 of the
CrPC was preferred before the learned Magistrate
Court for recalling of the witnesses, which was
rejected, against which, revision application is
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preferred, which is pending for adjudication. Thus
referring to the aforesaid fact, it is submitted
that how when the matter is settled between the
parties, the continuation of the proceeding
against the applicant would be futile exercise,
therefore, the prosecution launched against the
applicant may be quashed and set aside.
6. Learned advocate, Mr. Thakkar, at this stage, has
referred to the affidavit of the respondent no.3.
- victim produced on record at Page No.56 of the
compilation and submitted that the victim has
specifically stated in the said affidavit that she
was in love with the applicant and because of
which, she has performed marriage with the
applicant on 09.09.2024 and she is residing with
the applicant happily. He, therefore, submitted
that in view of the said affidavit coupled with
the evidence of the complainant and the victim,
the prosecution launched against the applicant may
be quashed and set aside.
7. Learned advocate, Mr. Thakkar, at this stage, has
placed reliance upon following decisions,
(1) the decision of the Hon'ble Supreme Court in
case of Ramji Lal Bairwa & Anr., Vs. State of
Rajasthan & Ors., reported in 2024 SCC OnLine
3193;
(2) the decision of the Hon'ble High Court of
Rajasthan in case of Tarun Vaishnav Vs. State
of Rajasthan, reported in 2022 SCC OnLine Raj
2237;
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8. Referring to the aforesaid decision, it is
submitted that the case of the applicant is
squarely covered by those decisions and in those
cases, the Hon'ble Supreme Court as well as the
Hon'ble High Court of Rajasthan have, considering
the submissions and other documents, quashed the
proceeding against the accused persons. It is,
therefore, urged that the present application may
be allowed and the impugned FIR and subsequent
proceedings may be quashed and set aside.
9. Learned advocate, Mr. Chauhan appearing for the
respondent nos.2 and 3 submitted that amicable
settlement has been arrived at and as there was
love relationship between the applicant and the
victim, she eloped with him and on attaining the
age of majority, she has solemnized the marriage
and is residing with the applicant, therefore, she
has filed affidavit, copy of which is produced on
record. It is, therefore, urged that the present
application may be allowed as no fruitful purpose
would be served keeping the proceeding alive.
10. On the other hand, learned APP Mr. Shah for the
respondent - State of Gujarat has strongly
objected the present application and submitted
that bare perusal of the allegations leveled in
the impugned FIR, basic and essential ingredients
to constitute the offence are prima facie made
out, therefore, no discretion may be exercised in
favour of the applicant because the offences are
not against a person but against the society as
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very serious allegations of non-compoundable
offences are leveled. He submitted that at the
time of registration of the impugned FIR, the
respondent no.3 - victim was minor, therefore, the
provision of POCSO Act was invoked and merely
because of the fact that on attaining the
majority, she married with the applicant, in that
event, it cannot be said that no offence can be
said to have been committed by the applicant. He
further submitted that in the present case, yet
the investigation is going on and chargesheet is
not filed and the examination of the witnesses is
going on and trial is at the stage of further
statement, therefore, trial may be permitted to be
continued. It is, therefore, urged that
considering the above facts, the present
application may be rejected.
11. Having heard the learned counsels appearing for
the respective parties and perused the materials
available on record, the moot question, which
falls for consideration of this Court, is as to
whether the present application, which is filed
for quashment of the impugned FIR on the ground of
settlement, can be considered or not considering
the fact that at the time of alleged incident, the
victim was minor.
12. Before delving into the issue involved in the
matter, I would like to refer and rely upon the
decision of the Hon'ble Apex Court in the case of
State of U. P. Vs. O. P. Sharma, reported in
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(1996) 7 SCC 705, wherein, the Hon'ble Apex Court
has observed and held as under:
"12. In State of Bihar v. Rajendra Agrawalla
[Crl. A. No.66 of 1996] decided on January
18, 1996, this Court observed as under:
"It has been held by this Court in
several cases that the inherent power
of the court under Section 482 of the
Code of Criminal Procedure should be
very sparingly and cautiously used
only when the court comes to the
conclusion that there would be
manifest injustice or there would be
abuse of the process of the court, if
such power is not exercised. So far as
the order of cognizance by a
Magistrate is concerned, the inherent
power can be exercised when the
allegations in the First Information
Report or the complaint together with
the other materials collected during
investigation taken at their face
values do not constitute the offence
alleged. At that stage it is not open
for the court either to shift the
evidence or appreciate the evidence
and come to the conclusion that no
prima facie case is made out."
13. In Mushtaq Ahmad v. Mohd. Habibur Rehman
Faizi & Ors. [JT 199 (1) 656] this Court
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held as under:
"... According to the complaint, the
respondents had thereby committed
breach of trust of Government money.
In support of the above allegations
made in the complaint copies of the
salary statements of the relevant
periods were produced. In spite of the
fact that the complaint and the
documents annexed thereto clearly made
out a, prima facie, case for cheating,
breach of trust and forgery, the High
Court proceeded to consider the
version of the respondents given out
in their petition filed under Section
482, Cr.P.C. vis-a-vis that of the
appellant and entered into the
debatable area of deciding which of
the version was true, - a course
wholly impermissible...".
14. We accordingly hold that the High Court has
committed grave error of law in quashing
the F.I.R. The High Court should be loathe
to interfere at the threshold to thwart the
prosecution exercising its inherent power
under Section 482, Cr.P.C. or under
Articles 226 and 227 of the Constitution,
as the case may be, and allow the law to
take its own course."
13. Thus in view of the aforesaid decision of the
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Hon'ble Supreme Court, it is well settled that the
inherent power of the court under Section 482 of
the CrPC should be exercised sparingly and
cautiously. The Court should exercise its inherent
powers under Section 482 of the CrPC only when it
comes to the conclusion that there would be
manifest injustice or there would be abuse of the
process of the court, if such power is not
exercised. However if the facts of the present
case on hand are examined, in that event, it is
found out that as per the allegations leveled in
the impugned FIR, at the time of alleged incident,
the victim girl was minor aged about 15 years and
7 months, which is an admitted fact, therefore,
the provision of POCSO Act is invoked at the time
of registration of the FIR and if the discretion
is exercised in favour of the applicant only on
the ground of settlement, in that event, the
purpose of enactment of the provision of POCSO Act
would be frustrated. The provision of the POCSO
strengthens the legal provisions for the
protection of children from sexual abuse and
exploitation. It provides protection to all
children under the age of 18 years from the
offences of sexual assault, sexual harassment and
pornography. The Act provides for stringent
punishments which have been graded as per the
gravity of the offence.
14. At this stage, it would be apposite to refer to
the decisions of Hon'ble Supreme Court in the case
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of Gian Singh Vs. State of Punjab & Anr.,
Another reported in (2012) 10 SCC 303 and in case
of State of Madhya Pradesh Vs. Laxmi Narayan &
Ors., in (2019) 5 SCC 688. In the case of Laxmi
Narayan (Supra), it is observed and held as under:
"Quashing would depend upon facts and
circumstances of each case - Court has to
apply mind to following - (i) whether crime
against society or against individual alone
and kind of dispute, whether civil or
criminal, (ii) seriousness, nature and
category / kind of crime / offence and how
committed, (iii) whether offence under
special statute, (iv) stage of proceedings,
(v) conduct and antecedents of accused,
whether accused absconding, why absconding
and how he managed to compromise with
complainant - criminal proceedings arising
out of commercial transactions or
matrimonial or family disputes when having
overwhelmingly and predominantly civil
character may be quashed when parties have
resolved entire dispute amongst themselves
- but such power cannot be used in respect
of heinous and serious offences of mental
depravity or offences like murder, rape and
dacoity, etc. - such offences are not
private in nature and have a serious impact
on society."
15. In the case of Gian Singh (Supra), the Hon'ble
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Supreme Court has observed as under:
"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 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
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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 quashing the criminal case
despite full and complete settlement and
compromise with the victim. In other words,
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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."
16. Now coming back to the present case on hand, it is
needless to say that the present offence is
registered for the offences punishable under
Sections 363, 366 and 376(2)(N) of the Indian
Penal Code (hereinafter referred to as "IPC" for
short") and under Sections 4, 5(L) and 6 of the
POCSO Act. Considering the aforesaid fact, it
transpires that the offences alleged are not only
against a person but against the State. Hence,
merely because compromise took place between the
parties is not a ground to exercise powers
under Section 482 of the CrPC. In this regard,
reference is required to be made to the decision
of Hon'ble Supreme Court in the case of Shimbhu &
Anr. Vs. State of Haryana, reported in (2014) 13
SCC 318 wherein it has been held as follows:
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"Rape being an offence against society,
factors pertaining to accused and victim,
such as compromise arrived at between
parties, old occurrence and long pendency
of criminal trial, subsequent marriage of
victim and having children, as also caste,
creed, religion, socio- economic status,
etc. not relevant to constitute adequate
and special reasons and that subsequent
compromise between parties whereby victim
having no objection to reduction of
accused's sentence to period already
undergone, may often be an outcome of
pressure and her compulsion and it would be
unsafe to consider it a ground for reducing
the sentence under the proviso and that
rape is a non-compoundable offence and
courts should not take softer view while
awarding sentence for heinous crime life
rape and held that proviso being an
exception clause should be construed
strictly."
17. Thus in view of the aforesaid proposition of law
as laid down by the Hon'ble Supreme Court in the
aforesaid decisions, it is clear that when the
offence is against the State, compounding of
offence is not permissible.
18. Further prayer with regard to quashment of the
impugned FIR is made reliance has been placed by
learned advocate for the applicant upon decision
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of the Hon'ble Supreme Court in case of Ramji Lal
Bairwa (supra) as well as the decision of the
Hon'ble High Court of Rajasthan in case of Tarun
Vaishnav (supra). I have also gone through the
decisions relied upon by the learned advocate for
the applicant, however, there cannot be any
dispute with regard to the ratio laid down in the
same. However keeping in mind the severity of the
act and the fact that it would adversely affect
the society and as the offences are against the
State, reliance placed by learned advocate for the
petitioner upon the decision of the Hon'ble
Supreme Court would not avail any assistance. It
is required to be noted that earlier quashing
petition for the very same FIR was preferred,
which was not entertained and the said quashing
petition was withdrawn and, thereafter, the trial
has proceeded further and the evidence of the
complainant and the victim have been recorded,
which are in support of the applicant, therefore,
the present application is preferred on the ground
of settlement. However as pointed out by learned
APP, from the material collected so far clearly
goes on to show the involvement of the accused in
the commission of crime and the fact that at the
time of incident, the victim girl was minor. I
have also considered the allegations leveled in
the impugned FIR, which clearly goes on to show
that serious allegations are leveled against the
accused persons. Over and above that, as submitted
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by learned APP that prior to filing of the present
application, earlier quashing petition was filed,
which was withdrawn and, thereafter, the trial has
proceeded further on filing of the chargesheet and
the evidence of not only complainant and the
victim but also other witnesses have also been
recorded, who have supported the case of the
prosecution but thereafter as the amicable
settlement has been arrived at, an application
under Section 311 of the CrPC was preferred for
recalling of the witnesses, which was not
entertained and, thereafter, the present
application is preferred, however as can be seen
from the documents available on record, the trial
is at the stage of fag end. Therefore considering
the facts of the case, the present petition on the
ground of settlement cannot be entertained when
the prima facie case is made out.
19. At this stage, it is required to be noted that it
is trite law that the High Court cannot embark
upon the appreciation of evidence while
considering the petition filed under Section 482
CrPC for quashing criminal proceedings. It is
clear from the law laid down by this Court that if
a prima facie case is made out disclosing the
ingredients of the offence alleged against the
accused, the Court cannot quash a criminal
proceeding.
20. It is true that the powers under Section 482 of
the CrPC are very wide and the very plenitude of
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the power requires great caution in its
exercise. In this regard, this Court deems it fit
to refer to the judgment of the Hon'ble Apex Court
in the case of Central Bureau of Investigation Vs.
Aryan Singh, reported in 2023 SCC OnLine SC 379 as
well as Narinder Singh & Ors. Vs. State of Punjab
& Anr., reported in 2014 (2) Crime 67 (SC). In the
case of Aryan Singh (Supra), it is held that scope
under Section 482 of the CrPC is very limited and
High Court cannot conduct a mini trial. The
Hon'ble Apex Court in para 10 held as under:-
"10. From the impugned common judgment and order
passed by the High Court, it appears that
the High Court has dealt with the
proceedings before it, as if, the High
Court was conducting a mini trial and/or
the High Court was considering the
applications against the judgment and order
passed by the learned Trial Court on
conclusion of trial. As per the cardinal
principle of law, at the stage of discharge
and/or quashing of the criminal
proceedings, while exercising the powers
under Section 482 Cr.P.C., the Court is not
required to conduct the mini trial. The
High Court in the common impugned judgment
and order has observed that the charges
against the accused are not proved. This is
not the stage where the prosecution /
investigating agency is/are required to
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prove the charges. The charges are required
to be proved during the trial on the basis
of the evidence led by the prosecution /
investigating agency. Therefore, the High
Court has materially erred in going in
detail in the allegations and the material
collected during the course of the
investigation against the accused, at this
stage. At the stage of discharge and/or
while exercising the powers under Section
482 Cr.P.C., the Court has a very limited
jurisdiction and is required to consider
"whether any sufficient material is
available to proceed further against the
accused for which the accused is required
to be tried or not."
21. Thus in view of above, under Section 482 of the
CrPC, Court should not hold a mini-trial and
should not go into evidence or statements recorded
by the police during investigation. In this
regard,reference is required to be made to the
decision of the Hon'ble Apex Court in the case
of Manik B. vs. Kadapala Sreyes Reddy & Ors.,
reported in 2023 Live Law 642 (3 Judges Bench)
wherein it is held that High Court should not
elaborately discuss the statement of the witnesses
recorded under Section 161 of the Cr.P.C. and
whether statements are trustworthy or not is
required to be decided while witness stands in the
witness box at the stage of such trial and such
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exercise is not permissible while exercising
jurisdiction under Section 482 as to entertain
such proceedings is nothing but abuse of process
of law.
22. It is also appropriate to refer to the decision of
the Hon'ble Supreme Court in the case of Narinder
Singh & Ors. vs. State of Punjab reported in
(2014) 6 SCC 466, wherein in paragraph Nos.29,
29.1, 29.2 and 29.7, the Hon'ble Supreme Court has
held as follows:
"29. In view of the aforesaid discussion, we sum
up and lay down the following principles by
which the High Court would be guided in
giving adequate treatment to the settlement
between the parties and exercising its
power under Section 482 of the Code while
accepting the settlement and quashing the
proceedings or refusing to accept the
settlement with direction to continue with
the criminal proceedings:
29.1 Power conferred under Section 482 of the
Code is to be distinguished from the power
which lies in the Court to compound the
offences under Section 320 of the Code. No
doubt, under Section 482 of the Code, the
High Court has inherent power to quash the
criminal proceedings even in those cases
which are not compoundable, where the
parties have settled the matter between
themselves. However, this power is to be
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exercised sparingly and with caution.
29. When the parties have reached the
settlement and on that basis petition for
quashing the criminal proceedings is filed,
the guiding factor in such cases would be
to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any court.
29.7 While deciding whether to exercise its
power under Section 482 of the Code or not,
timings of settlement play a crucial role.
Those cases where the settlement is arrived
at immediately after the alleged commission
of offence and the matter is still under
investigation, the High Court may be
liberal in accepting the settlement to
quash the criminal
proceedings/investigation. It is because of
the reason that at this stage the
investigation is still on and even the
charge sheet has not been filed. Likewise,
those cases where the charge is framed but
the evidence is yet to start or the
evidence is still at infancy stage, the
High Court can show benevolence in
exercising its powers favourably, but after
prima facie assessment of the
circumstances/material mentioned above. On
the other hand, where the prosecution
evidence is almost complete or after the
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conclusion of the evidence the matter is at
the stage of argument, normally the High
Court should refrain from exercising its
power under Section 482 of the Code, as in
such cases the trial court would be in a
position to decide the case finally on
merits and to come a conclusion as to
whether the offence under Section 307 IPC
is committed or not. Similarly, in those
cases where the conviction is already
recorded by the trial court and the matter
is at the appellate stage before the High
Court, mere compromise between the parties
would not be a ground to accept the same
resulting in acquittal of the offender who
has already been convicted by the trial
court. Here charge is proved under Section
307 IPC and conviction is already recorded
of a heinous crime and, therefore, there is
no question of sparing a convict found
guilty of such a crime."
23. At this stage, I would like to rely upon the
decision of the Hon'ble Supreme Court in case of
M/s Neeharika Infrastructure Pvt. Ltd Vs. State
Maharashtra & Ors., reported in 2021 (19) SCC 401,
wherein a three-judge Bench of the Hon'ble Supreme
Court has analyzed the precedent of the Hon'ble
Supreme Court and culled out the relevant
principles that govern the law on quashing of an
FIR Section 482 of the CrPC. Over and above that,
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the scope and ambiguity of powers to be exercised
under Section 482 of the CrPC has been elaborately
dealt with and considered by this Court. The
relevant observations made in the said decision
are as under,
"10. From the aforesaid decisions of this Court,
right from the decision of the Privy
Council in the case of Khawaja Nazir Ahmad
(supra), the following principles of law
emerge:
i) Police has the statutory right and
duty under the relevant provisions of
the Code of Criminal Procedure
contained in Chapter XIV of the Code
to investigate into cognizable
offences;
ii) Courts would not thwart any
investigation into the cognizable
offences;
iii) However, in cases where no cognizable
offence or offence of any kind is
disclosed in the first information
report the Court will not permit an
investigation to go on;
iv) The power of quashing should be
exercised sparingly with
circumspection, in the 'rarest of rare
cases'. (The rarest of rare cases
standard in its application for
quashing under Section 482 Cr.P.C. is
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not to be confused with the norm which
has been formulated in the context of
the death penalty, as explained
previously by this Court);
v) While examining an FIR/complaint,
quashing of which is sought, the court
cannot embark upon an enquiry as to
the reliability or genuineness or
otherwise of the allegations made in
the FIR/complaint;
vi) Criminal proceedings ought not to be
scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be
an exception and a rarity than an
ordinary rule;
viii) Ordinarily, the courts are barred
from usurping the jurisdiction of the
police, since the two organs of the
State operate in two specific spheres
of activities. The inherent power of
the court is, however, recognised to
secure the ends of justice or prevent
the above of the process by Section
482 Cr.P.C.
ix) The functions of the judiciary and the
police are complementary, not
overlapping;
x) Save in exceptional cases where non-
interference would result in
miscarriage of justice, the Court and
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the judicial process should not
interfere at the stage of
investigation of offences;
xi) Extraordinary and inherent powers of
the Court do not confer an arbitrary
jurisdiction on the Court to act
according to its whims or caprice;
xii) The first information report is not an
encyclopaedia which must disclose all
facts and details relating to the
offence reported. Therefore, when the
investigation by the police is in
progress, the court should not go into
the merits of the allegations in the
FIR. Police must be permitted to
complete the investigation. It would
be premature to pronounce the
conclusion based on hazy facts that
the complaint/FIR does not deserve to
be investigated or that it amounts to
abuse of process of law. During or
after investigation, if the
investigating officer finds that there
is no substance in the application
made by the complainant, the
investigating officer may file an
appropriate report/summary before the
learned Magistrate which may be
considered by the learned Magistrate
in accordance with the known
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procedure;
Cr.P.C. is very wide, but conferment
of wide power requires the court to be
cautious. It casts an onerous and more
diligent duty on the court;
xiv) However, at the same time, the court,
if it thinks fit, regard being had to
the parameters of quashing and the
self-restraint imposed by law, more
particularly the parameters laid down
by this Court in the cases of R.P.
Kapur (supra) and Bhajan Lal (supra),
has the jurisdiction to quash the FIR/
complaint; and
xv) When a prayer for quashing the FIR is
made by the alleged accused, the court
when it exercises the power under
Section 482 Cr.P.C., only has to
consider whether or not the
allegations in the FIR disclose the
commission of a cognizable offence and
is not required to consider on merits
whether the allegations make out a
cognizable offence or not and the
court has to permit the investigating
agency/police to investigate the
allegations in the FIR."
24. At the outset, it is apt to refer the law laid
down by the Hon'ble Apex Court in case of Bhajan
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Lal (supra). The relevant para reads as under:
"In the backdrop of the interpretation of
the various relevant provisions of the Code
under Ch.XIV and of the principles of law
enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226 or
the inherent powers u/s 482 of the Code of
Criminal Procedure which we have extracted
and reproduced above, the following
categories of cases are given by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any Court or otherwise to secure
the ends of justice, though it may not be
possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formula and
to give an exhaustive list of myriad kinds
of cases wherein such power should be
exercised.
(1) where the allegations made in the
First Information Report or the
complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute
any offence or make out a case against
the accused;
(2) where the allegations in the First
Information Report and other
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materials, if any, accompanying the
F.I.R. do not disclose a cognizable
offence, justifying an investigation
by police officers under Section
156(1) of the Code except under an
order of a Magistrate within the
purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations
made in the FIR or 'complaint and the
evidence collected in support of the
same do not disclose the commission of
any offence and make out a case
against the accused;
(4) where the allegations in the FIR do
not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted
by a police officer without an order
of a Magistrate as contemplated under
Section 155(2) of the Code;
(5) where the allegations made in the FIR
or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach
a just conclusion that there is
sufficient ground for proceeding
against the accused;
(6) where there is an express legal bar
engrafted in any of the provisions of
the Code or the concerned Act (under
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which a criminal proceeding is
instituted) to the institution and
continuance of the proceedings and/or
where there is a specific provision in
the Code or the concerned Act,
(7) where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an
ulterior motive for wreaking vengeance
on the accused and with a view to
spite him due to private and personal
grudge."
25. The Hon'ble Apex Court in case of R.P. Kapur
(supra) has summarised some categories of cases
where inherent power can and should be exercised
to quash the proceedings, which are as under,
(i) where it manifestly appears that there is a
legal bar against the institution or
continuance e.g. want of sanction;
(ii) where the allegations in the first
information report or complaint taken at
its face value and accepted in their
entirety do not constitute the offence
alleged;
(iii) where the allegations constitute an
offence, but there is no legal evidence
adduced or the evidence adduced clearly or
manifestly fails to prove the charge.
26. The Apex Court has, in the case of Jagmohan Singh
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Vs. Vimlesh Kumar & Ors., rendered in Civil Appeal
No.741 of 2022, decided on 5.5.2022, observed as
under :
"... At this stage, we are not inclined to
look into the correctness of the
allegations made in the FIR. Ex- facie, the
allegations in the FIR disclose an offence.
Whether the persons named in the FIR have
committed the offence or not, has to be
decided upon trial, in the criminal
proceedings.
The Court interferes in criminal
proceedings, in exercise of the power under
Section 482 the Cr.P.C., in rare and
exceptional cases, to give effect to the
provisions of the Cr.P.C. or to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice.
While exercising jurisdiction under Section
482 the Cr.P.C., the High Court should not
ordinarily embark upon an enquiry into
whether there is reliable evidence or not.
The jurisdiction has to be exercised
sparingly, carefully and with caution only
when such exercise is justified by the
specific provisions of Section 482 the
Cr.P.C. itself."
27. Applying ratio laid down by the Hon'ble Supreme
Court in the aforesaid decisions as referred to
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hereinabove to the case on hand, prima facie there
are sufficient material available to proceed
further with the investigation and on the strength
of the investigation, proceed further with the
trial though the amicable settlement is arrived at
between the parties. Further as per the settled
position of law, it is the right conferred upon
the Investigating Agency to conduct the
investigation and reasonable time should be given
to the Investigating Agency to conduct the
investigation unless it is found that the
allegations in the FIR do not disclose any
cognizable offence at all or the complaint is
barred by any law. However in the facts of the
case on hand, as stated above, the allegations
leveled in the FIR disclose the commission of
offence. Therefore, it would not be appropriate to
interfere at the early stage of investigation. In
my view, when cognizable offence is disclosed, the
investigation by the Agency shall not be scuttled,
except in a rarest of rare case and in exceptional
case and in the fact of the present case, the
applicant has failed to bring her case within the
four corners of rarest of rare case, that warrants
any interference at the instance of this Court
exercising extraordinary power conferred under
Section 482 of the Cr.P.C.
28. At the cost of repetition, it is required to be
noted that as stated above, the present
application is filed for quashment of the impugned
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FIR only on the ground of settlement arrived at
between the parties and when this Court was not
inclined, the matter was argued on merits pointing
out the facts of the case. However in view of the
above discussions, the case on hand does not fall
in the purview of abuse of process of law. Even,
if the application is allowed on the ground of
settlement, it would amount to abuse of process of
law. It is settled proposition of law that while
deciding whether to NEUTRAL exercise power
under Section 482 of the CrPC or not, timings of
settlement play a crucial role. Therefore, consent
is not a ground to entertain the present petition.
29. In wake of the aforesaid discussion, the present
application, which is filed on the ground of
settlement, cannot be entertained at this stage
and it is rejected accordingly. However, the
concerned trial court is directed to expedite the
trial. It is made clear that the observations made
in this order are tentative in nature and
concerned trial court shall decide the trial on
its own merits without being influenced by the
observations made in this order.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
