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2015 DIGILAW 593 (GUJ)

Panchabhai Popatbhai Sakaliya v. State of Gujarat

2015-06-10

ABHILASHA KUMARI

body2015
JUDGMENT Abhilasha Kumari, J. 1. Rule. Mr. L.B. Dabhi, learned Additional Public Prosecutor waives service of notice of Rule for respondent No. 1. Mr. Mahesh Poojara, learned advocate states that he has received instructions to appear on behalf of respondent No. 2 (Complainant) and would be filing the Vakalatnama during the course of the day. He is permitted to do so. He waives service of notice of Rule for respondent No. 2. On the facts and in the circumstances of the case, the application is being heard and decided today. 2. By filing this application under Section-482 of the Code of Criminal Procedure, 1973, the applicant has made the following prayers: "A) That this Hon'ble Court may be pleased to admit this Criminal Misc. Application. B) This Hon'ble Court may be pleased to allow this Criminal Misc. Application by quashing and setting aside the impugned FIR at Annexure-A being CR No. I-60 of 2005 registered with Gadhada police station and the proceedings arising out of the same in the interest of justice. C) Pending admission, hearing and till final disposal of this petition, this Hon'ble Court may be pleased to grant stay as to further proceedings of CR No. I-60 of 2005 filed by respondent No. 2 before Gadhada police station and further proceedings arising out of the same, in the interest of justice. D) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice." 3. A First Information Report (FIR) being C.R. No. I-60/2005 was lodged with the Gadhada Police Station, Bhavnagar, for offences punishable under Sections-394, 506(2) and 504 of the Indian Penal Code on 11.10.2005. It is the case of respondent No. 2-Complainant that when the complainant was going to village Dalva on his motorcycle and had reached two kilometers away from village Dared, one silver colour Maruti Zen Car, bearing Registration No. MH-04-AC-802, came from the opposite side. As soon as the complainant saw the Maruti car, he tried to stop it. Upon further inquiry, the complainant noticed that one Panchabhai Popatbhai Sakadiya, who had kidnapped the wife of the complainant, was sitting in the Maruti car with another person. It is further alleged that the said Panchabhai Sakadiya started quarrelling with the complainant and beat him. Panchabhai Sakadiya also tried to forcibly take away the daughter and son of the complainant. Upon further inquiry, the complainant noticed that one Panchabhai Popatbhai Sakadiya, who had kidnapped the wife of the complainant, was sitting in the Maruti car with another person. It is further alleged that the said Panchabhai Sakadiya started quarrelling with the complainant and beat him. Panchabhai Sakadiya also tried to forcibly take away the daughter and son of the complainant. He abused the complainant and gave threats to him. It is further alleged that an amount of Rs. 10,000/- that was in the pocket of the complainant fell down at the place of the quarrel, which was also taken away by the accused. When the complainant started shouting, the accused ran away. Thereafter, the complainant made a telephone call to the Gadhda Police Station and the Police attempted to trace out the Maruti car. However, it could not be traced. Under the circumstances, the complainant filed a complainant before Gadhda Police Station. A copy of the FIR registered pursuant thereto is annexed at Annexure-A to the petition. Before this Court, it is the case of the applicant that the dispute has been amicably settled between the applicant and the complainant. The complainant has remarried with one Dakshaben and has a son aged about seven years from the said wed-lock. The parties have buried their grievances and no dispute exists between them any longer. On the above grounds, the applicant has approached this Court with a prayer to quash and set aside the FIR registered with Gadhada Police Station and the consequential proceedings arising from the same. 4. An affidavit affirmed on 29.05.2015 has been filed by respondent No. 2 (Complainant) who is also present before the Court today. In the said affidavit, it is stated that he had lodged the FIR with the Gadhada Police Station being C.R. No. I-60/2005 against the applicant. However, after the registration of the FIR, the dispute between the parties has been settled with the help of friends, relatives and elders of the community and now there is no ill-will and grievance amongst them. It is further stated that the complainant has remarried a lady named Dakshaben and also has a son aged seven years from the said wedlock. Under the circumstances, the complainant does not want to pursue the proceedings against the applicant. 5. Mr. It is further stated that the complainant has remarried a lady named Dakshaben and also has a son aged seven years from the said wedlock. Under the circumstances, the complainant does not want to pursue the proceedings against the applicant. 5. Mr. Ashish M. Dagli, learned advocate for the applicant submits that in view of the compromise between the parties, no fruitful purpose would be served by continuing with the criminal prosecution. In any case, the allegations against the applicant are not serious in nature and the dispute is a private one involving private relationship between the parties. As the parties have amicably settled the dispute and have no grievance amongst themselves, the relief prayed for in the petition may be granted in view of the principles of law expounded in the judgment of the Supreme Court in the case of Gian Singh Vs. State of Punjab and another, reported in 2012 (10) SCC 303 and Jayrajsinh Digvijaysinh Rana Vs. State of Gujarat and another, reported in 2013 (1) GLR 65. 6. Mr. L.B. Dabhi, learned Additional Public Prosecutor submits that the matter requires investigation and ought to be allowed to run on its own course, therefore, the relief claimed in the petition may not be granted. 7. This Court has heard learned counsel for the respective parties, considered the averments made in the application, submissions of the parties and the judgments cited on behalf of the applicant. 8. In Gian Singh Vs. State of Punjab and another (Supra), the Supreme Court has dealt with several judgments on the point whether criminal proceedings can be quashed in exercise of power under Section-482 of the Code of Criminal Procedure, 1973, by the High Court in view of a compromise arrived at between the parties and has summed up the position of law 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 the power given to a criminal court for compounding the offences under Section 320 of the Code. 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 (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 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." 9. In Jayrajsinh Digvijaysinh Rana Vs. State of Gujarat (Supra), the Supreme Court has held as below: "7. The only question for consideration before this Court at this stage is that inasmuch as all those offences are not compoundable offences under Sec. 320 of the Code, (except Sec.420 of IPC that too with the permission of the Court before which any prosecution for such offence is pending), whether it would be possible to quash the FIR by the High Court under Sec. 482 of the Code or by this Court exercising jurisdiction under Art.136 of the Constitution of India? 8. The above question was recently considered by this Court in Shiji @ Pappu vs. Radhika, 2011 (10) SCC 705 : ( AIR 2012 SC 499 ). The question posed in that case was "Whether the criminal proceedings in question could be quashed in the facts and circumstances of the case having regard to the settlement that the parties had arrived at." After adverting to Sec.482 of the Code and various decisions, this Court concluded as under: "17. It is manifest that simply because an offence is not compoundable under Sec. 320 Cr.P.C. is by itself no reason for the High Court to refuse exercise of its power under Sec. 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on the one hand, and the exercise of power by the High Court to quash the prosecution under Sec.482 Cr.P.C. on the other. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on the one hand, and the exercise of power by the High Court to quash the prosecution under Sec.482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Sec. 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Sec. 482 Cr.P.C. are not for that purpose controlled by Sec.320 Cr.P.C. 18. Having said so, we must hasten to add that the plenitude of the power under Sec.482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Sec.482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate Court while dealing with a petition under Sec.482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked." 9. On going through the factual details, earlier decision, various offences under Sec.320 of the Code and invocation of Sec.482 of the Code, we fully concur with the said conclusion. On going through the factual details, earlier decision, various offences under Sec.320 of the Code and invocation of Sec.482 of the Code, we fully concur with the said conclusion. In the case on hand, irrespective of the earlier dispute between Respondent No. 2-the complainant and the appellant being Accused No. 3 as well as Accused Nos. 1 and 2 subsequently and after getting all the materials, relevant details etc., the present appellant (Accused No. 3) sworn an affidavit with bona fide intention securing the right, title and interest in favour of Respondent No. 2 herein-the Complainant. In such bonafide circumstances, the power under Sec.482 may be exercised. Further, in view of the settlement arrived at between Respondent No. 2-the complainant and the appellant (Accused No. 3), there is no chance of recording a conviction insofar as the present appellant is concerned and the entire exercise of trial is destined to be an exercise in futility. Inasmuch as the matter has not reached the stage of trial, we are of the view that the High Court, by exercising the inherent power under Sec.482 of the Code even in offences which are not compoundable under Sec.320, may quash the prosecution. However, as observed in Shiji 2011 (10) SCC 705 : AIR 2012 SC 499 ], the power under Sec.482 has to be exercised sparingly and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. In other words, the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. 10. In the light of the principles mentioned above, inasmuch as Respondent No. 2-the Complainant has filed an affidavit highlighting the stand taken by the appellant (Accused No. 3) during the pendency of the appeal before this Court and the terms of settlement as stated in the said affidavit, by applying the same analogy and in order to do complete justice under Article 142 of the Constitution, we accept the terms of settlement insofar as the appellant herein (Accused No. 3) is concerned." 10. Examining the facts and circumstances of the present case in light of the principles of law laid down by the Supreme Court in the above judgments, this Court finds that the offence alleged against the applicant is not of a serious nature and the allegation is only regarding threats issued to the complainant. The dispute is purely of a private and personal nature and now when the complainant has remarried and has a son aged seven years from the second wife, it does not appear to this Court that any fruitful purpose would be served if the criminal litigation is dragged on. Rather, the parties have settled down in their relationships and the complainant no longer has any grievance against the applicant or vice-versa. The object of Section-482 of the Code of Criminal Procedure is to prevent the abuse of the process of any Court and secure the ends of justice. In granting the relief claimed by the petitioner in view of the compromise arrived at between the parties, the object and purpose of Section-482 would be further enhanced, in the view of this Court. 11. For the aforestated reasons, the following order is passed: The First Information Report (FIR) being C.R. No. I-60/2005 registered with Gadhada Police Station, Bhavnagar, and the resultant proceedings arising out of the same, are quashed and set aside. The petition is allowed, in the above terms. Rule is made absolute, accordingly. Petition Allowed