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2015 DIGILAW 244 (GUJ)

NITESH KISHORBHAI CHAWLA v. STATE OF GUJARAT

2015-03-02

VIPUL M.PANCHOLI

body2015
JUDGMENT : 1. Rule. Learned APP Ms. HB Punani waives service of notice of Rule for respondent No.1 – State of Gujarat and learned advocate Mr. Ashish Dagli waives service of notice of Rule for respondent No. 2 – original complainant. 2. With the consent of the learned advocates for the parties, the matter is taken up for final hearing today. 3. Heard learned advocate Mr. Darshan Varandani for the petitioners. Learned advocate for the petitioners submitted that Special Criminal Application No.3614 of 2014 is filed by the original accused Nos. 2 and 3 for quashing and setting aside the FIR being C.R.No.I44 of 2014 registered with Mahila Police Station, Adipur. The said petition was filed to quash the said FIR on merits. This Court issued the notice on 12.09.2014 in the said petition and thereafter it is pending for hearing. Learned advocate further submitted that in the meantime, now the dispute is settled out of the Court with respondent No.2 – original complainant and therefore all the three accused of FIR being C.R.No.I44 of 2014 registered with Mahila Police Station, Adipur, have now preferred Special Criminal Application No.1234 of 2015 with a prayer to quash and set aside the said FIR only on the ground that the matter is amicably settled out of the Court with respondent No.2. Learned advocate submitted that the aforesaid FIR came to be registered for the offences punishable under Sections 498A and 114 of the Indian Penal Code. During the pendency of the investigation of the said case, now, compromise is arrived at between the parties, whereby, petitioner No.1 has given divorce to respondent No.2 and therefore divorce deed was executed between the parties on 15.02.2015. Learned advocate for the petitioners has referred to the affidavit filed by respondent No.2 on 25.02.2015 and submitted that if the impugned FIR and the proceedings pursuant thereto are quashed and set aside, respondent No.2 is not having any objection. 4. Learned advocate for the petitioners relied upon the decision of the Hon’ble Supreme Court in the case of Yogendra Yadav & Ors. Vs. The State of Jharkhand & Anr. reported in AIR 2014 SC 3055 . 4. Learned advocate for the petitioners relied upon the decision of the Hon’ble Supreme Court in the case of Yogendra Yadav & Ors. Vs. The State of Jharkhand & Anr. reported in AIR 2014 SC 3055 . Learned advocate for the petitioner further relied upon the decision of the Hon’ble Supreme Court in the case of B.S.Joshi v. State of Haryana, reported in (2003) 4 SCC 675 and submitted that the impugned FIR may be quashed and set aside on the ground of settlement. 5. Today, when the matter is taken up for final hearing, respondent No.2 – Seema Nitesh Chawla, has remained personally present before this Court. Learned advocate for the parties have identified her. Learned advocate for respondent No.2 has submitted that if the impugned FIR is quashed and set aside, she is not having any objection. 6. Learned APP has also submitted that the FIR is filed under Section 498A and 114 of the Indian Penal Code by respondent No.2. However, when the matrimonial dispute is settled between the parties, this Court may pass an appropriate order in the interest of justice. 7. Having heard the learned counsel appearing on behalf of the parties and having gone through the documents produced on record and the decisions cited by the learned advocate for the petitioner, I am of the view that the respondent No.2 – original complainant has voluntarily arrived at the settlement with the petitioners for which the affidavit is filed by the complainant. Respondent No.2 original complainant, in para 2, 3 and 4 of her affidavit, stated thus: “(2) That the dispute is settled between us, due to interference of respected members of society and family. (3) That now I, undersigned and Accused No.1 Shri Nitesh Kishorbhai Chawla have mutually agreed for divorce and same has noted down in deed dated 15/02/2015 before Mr. A.G.Solanki, Advocate and Notary of GandhidhamKachchh. (4) That I have no objection if the Hon'ble High Court of Gujarat is quashing the aforesaid FIR in the interest of justice.” 8. The Hon'ble Supreme Court in the case of Yogendra Yadav (Supra) observed in para 4 to 7 as under: “4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 of the Indian Penal Code which are noncompoundable. Needless to say that offences which are noncompoundable cannot be compounded by the court. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 of the Indian Penal Code which are noncompoundable. Needless to say that offences which are noncompoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab[1]). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are noncompoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace. 5. In Gian Singh this Court has observed that where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. Needless to say that the above observations are applicable to this Court also. 6. Needless to say that the above observations are applicable to this Court also. 6. Learned counsel for the parties have requested this Court that the impugned order be set aside as the High Court has not noticed the correct position in law in regard to quashing of criminal proceedings when there is a compromise. Affidavit has been filed in this Court by complainant Anil Mandal, who is respondent No. 2 herein. In the affidavit he has stated that a compromise petition has been filed in the lower court. It is further stated that he and the appellants are neighbours, that there is harmonious relationship between the two sides and that they are living peacefully. He has further stated that he does not want to contest the present appeal and he has no grievance against the appellants. Learned counsel for the parties have confirmed that the disputes between the parties are settled; that parties are abiding by the compromise deed and living peacefully. They have urged that in the circumstances pending proceedings be quashed. State of Jharkhand has further filed an affidavit opposing the compromise. The affidavit does not persuade us to reject the prayer made by the appellant and the second respondent for quashing of the proceedings. 7. In view of the compromise and in view of the legal position which we have discussed hereinabove, we set aside the impugned order dated 4/7/2012 and quash the proceedings in S.C.No.9/05 pending on the file of 2nd Additional Sessions Judge, Godda. The appeal is disposed of.” 9. In view of the aforesaid, I am of the opinion that no fruitful purpose would be served in continuation of the criminal proceedings in the present case and it will be an exercise in futility. Justice in the case demands that the dispute between the parties is put to an end and peace is restored. In the result, the petitions are allowed. The FIR being C.R.No.I44 of 2014 registered with Mahila Police Station, Adipur and all the proceedings initiated pursuant thereto are ordered to be quashed. Rule is made absolute. 11. The Registry to accept the Vakalatnama of Mr. Ashish Dagli, who is appearing for respondent No.2 – original complainant. Direct service today is permitted.