Gujarat High Court
Ashwinbhai Dineshbhai Bariya vs State Of Gujarat on 1 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6298 of 2025
(FOR CONSENT QUASHING)
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ASHWINBHAI DINESHBHAI BARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
HARNISH M RAO(9161) for the Applicant(s) No. 1
JIGNESHKUMAR P PANDAV(8297) for the Applicant(s) No. 1
MR CHINTAN DAVE APP for the Respondent(s) No. 1
MS MITTAL PATEL for the Respondent No.2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 01/05/2025
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.11191015250214/2025
registered with Nikol Police Station, Ahmedabad
for the offences under Sections 75(2) and 351(2)
of the BNS, 2023 and under Sections 7, 8, 11 and
12 of the POCSO Act.
2. Heard learned advocate, Mr. Harnish Rao for the
applicant, learned APP Mr. Chintan Dave for the
respondent no.1 - State of Gujarat and learned
advocate, Ms. Mittal Patel for the respondent
no.2.
3. The gist of the FIR is that,
On the day of incident i.e. on 01.04.2025,
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when the complainant, victim and the applicant -
accused had gone for shopping of masala and the
complainant was busy in the shopping, the
applicant - accused, taking advantage of the
situation, took the victim girl in the car, where
he outraged her modesty and thereby committed
alleged offence. 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 the applicant and the
complainant both are residing in nearby vicinity
and are knowing each other since long and the
victim is the younger sister of the complainant
and they are having friendly relations, therefore,
there is no question of committing such offence by
the applicant herein. He submitted that in fact,
the applicant is falsely implicated in the
aforesaid offence with oblique motive, however
after the registration of the impugned FIR, the
respondent no.2 herein has realized her mistake
and filed an affidavit in support of the applicant
inter alia stating that because of some
misunderstanding, the impugned FIR has been
registered, copy of said affidavit is produced on
record at Page No.12 of the compilation. He
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further submitted that in fact, the respondent
no.2 has also submitted written application before
the Police Inspector, Nikol Police Station
narrating about her misunderstanding and has also
filed an affidavit in support of the applicant,
copies of those documents are produced on record.
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.
5. Learned advocate, Ms. Mittal Patel appearing for
the respondent no.2 submitted that because of
misunderstanding, the impugned FIR has been lodged
in haste, however the respondent no.2 was made to
understand, she realized her mistake and filed an
affidavit giving her consent for quashment of the
impugned FIR, , 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.
6. On the other hand, learned APP Mr. Dave 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
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favour of the applicant because the offences are
not against a person but against the society as
very serious allegations of non-compoundable
offences are leveled. He submitted that in the
present case, the victim girl is minor aged about
6 years, therefore, the provision of POCSO has
been invoked and the applicant had outraged her
modesty just to satisfy his lust, therefore, no
discretion may be exercised in favour of the
applicant. He submitted that the impugned FIR has
been lodged on 01.04.2025 and immediately
thereafter, the present application is filed on
the ground of settlement, however in the present
case, yet the investigation is going on and
chargesheet is not filed, therefore, it may be
permitted to be allowed. It is, therefore, urged
that considering the above facts, the present
application may be rejected.
7. 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.
8. 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
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State of U. P. Vs. O. P. Sharma, reported in
(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 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
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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."
9. Thus in view of the aforesaid decision of the
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 6 years,
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
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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.
10. At this stage, it would be apposite to refer to
the decisions of Hon'ble Supreme Court in the case
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
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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."
11. In the case of Gian Singh (Supra), the Hon'ble
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 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
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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, 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."
12. 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 75(2) and 351(2) of the BNS, 2023 and
under Sections 7, 8, 11 and 12 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
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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:
"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."
13. 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.
14. 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
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accused, the Court cannot quash a criminal
proceeding.
15. It is true that the powers under Section 482 of
the CrPC are very wide and the very plenitude of
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 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
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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."
16. Thus in view of above, under Section 482 of the
CrPC, the 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
exercise is not permissible while exercising
jurisdiction under Section 482 as to entertain
such proceedings is nothing but abuse of process
of law.
17. 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:
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"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 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
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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 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."
18. 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,
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,
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"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 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
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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 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 procedure;
xiii) The power under Section 482 Cr.P.C.
is very wide, but conferment of wide
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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."
19. At the outset, it is apt to refer the law laid
down by the Hon'ble Apex Court in case of Bhajan
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
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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 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
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engrafted in any of the provisions of
the Code or the concerned Act (under
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."
20. 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.
21. The Apex Court has, in the case of Jagmohan Singh
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
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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."
22. Applying the ratio laid down by the Hon'ble
Supreme Court in the aforesaid decisions as
referred to 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
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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.
23. 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
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 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.
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24. 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. 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.
(DIVYESH A. JOSHI, J.)
Gautam
