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2016 DIGILAW 578 (GUJ)

Chhatrapalsinh Dolatsinh Zala v. State of Gujarat

2016-03-11

SONIA GOKANI

body2016
ORDER : Sonia Gokani, J. The petitioners seek quashment of the Order dated 5th June 2015 passed below Applications Exh. 60, 61 and 62 made in Criminal Appeal No. 5 of 2005 and to quash and set-side the Order of conviction dated 11th April 2005 passed by the learned Addl. Chief Judicial Magistrate, Dhrangadhra in Criminal Case No. 227 of 2000 with a further direction to consider the compromise purshis. 2. It appears that a complaint dated 9th October 1999 was preferred by one Niruben Chhatrapalsinh Zala before Mehsana Police Station, being I-C.R No. 99/1999 against the accused persons for the offence punishable under Sections 324, 495, 506(2), 114 IPC. This culminated into filing of the charge-sheet and eventually, the trial was conducted which resulted into conviction of the present petitioner under Section 324 & 498A IPC so also under Section 506 (2) of the Code. This judgment and order of the learned Addl. Chief Judicial Magistrate, Dhrangadhra dated 11th April 2005 was appealed against before the learned Addl. Sessions Court, Dhrangadhra and the Court, after hearing both the sides on 10th November 2006, acquitted all the three accused by setting aside the order of conviction and fine. 3. The original complainant approached this Court by preferring Criminal Revision Application No. 34 of 2007 wherein this Court on 23rd January 2013, after bi-partite hearing, allowed such revision and passing the following order :- "19. It would be not desirable to discuss the evidence as that is not the function of the revisional court to so do it and that may also prejudice the cause of parties as is also made eloquently clear in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh & Anr. However, mere reading of the judgment and order of the appellate forum indicates that the Sessions Court has completely disregarded the provisions of the evidence act, while appreciating the material on record. The learned Appellate Judge also appears to have exceeded his jurisdiction while exercising his function of the appellate court and his finding have led to the material illegality which has caused miscarriage of justice. 20. This Court cannot disregard the fact that this was an incident of perpetrating cruelty to the married lady at the hands of her in-laws. The learned Appellate Judge also appears to have exceeded his jurisdiction while exercising his function of the appellate court and his finding have led to the material illegality which has caused miscarriage of justice. 20. This Court cannot disregard the fact that this was an incident of perpetrating cruelty to the married lady at the hands of her in-laws. There were substantiating scientific material available also on record and in such a circumstance, it is expected of every court to appreciate these materials in the manner as is well laid down under the law. Instead of evaluating the evidence in methodical and scientific manner, the learned appellate judge has chosen to incorporate his own philosophy in demolishing the judgment of the Trial Court. This perversity writs large on page after the page and therefore, there is a need for this Court to interfere in the revisional jurisdiction. This Court is fully conscious of the fact that power given under the revision are limited and it is not expected to re-appreciate the evidence nor is it necessary for it to interfere because there is a possibility of different conclusion. Yet such judgment if is allowed to stay, it would have a long deleterious effect on the society as well and that would also amount to complete miscarriage of justice. No lady would come forth alleging such serious cruelty particularly at the hand of the in-laws and thus with all other surrounding material and evidence and on cumulative reading of the entire set and facts and circumstances of the present case, it would lead this Court in reaching to the conclusion that this case warrants interference. 21. Resultantly, this revision application is allowed. 22. The order of the acquittal of the Sessions Court is hereby quashed and set aside and as the entire material is already with the Sessions Court, the only direction is of rehearing of the matter. 23. The matter shall be reheard by the Sessions Court without being influenced by any of the observations made in this Order of revision by giving the fullest opportunity to both the sides herein. 24. So as to avoid the possibility of non service of the notices/summons, both sides are directed to remain present before the Principal District Judge, District and Sessions Court, Surendranagar on or before 26th February 2013. Rule is made absolute. Direct service is permitted." 4. 24. So as to avoid the possibility of non service of the notices/summons, both sides are directed to remain present before the Principal District Judge, District and Sessions Court, Surendranagar on or before 26th February 2013. Rule is made absolute. Direct service is permitted." 4. Before the appellate forum, hearing is yet to take place and in the meantime, they have arrived at a settlement, and therefore, the original accused have sought the following relief’s : "(A) to admit this petition; (B) to allow this Special Criminal Application by quashing and setting aside the order passed below Exh. 60, 61 & 62 dated 5th June 2015 in Criminal Appeal No. 5 of 2005 and further be pleased to accept and consider the compromise purshis vide Exh. 60, 61 & 62 in Criminal Appeal No. 5 of 2005 and further be pleased to quash and set aside the order of conviction passed by the learned Addl. Chief Judicial Magistrate, Dhrangadhra in Criminal Case No. 227 of 2000 dated 11th April 2005; (C) Pending admission, hearing and final disposal of this petition, to grant say as to the execution, implementation and operation of the order passed below Exh. 60, 61 and 62 dated 5th June 2015 in Criminal Appeal No. 5 of 2005; (D) to grant such other and further relief; in the interest of justice." 5. It is urged that jointly by filing an affidavit of the complainant that the parties have amicably settled the disputes and nothing survives. The friends, family members and relatives during the pendency of the proceedings have intervened, and therefore, they have chosen to end their marital ties. 6. Heard learned advocate appearing for both the sides. It is urged that even when the judgment and orders are passed by the concerned Court convicting the accused, by way of settlement, the Courts have permitted quashment of such orders. In support of this argument, the learned counsel appearing for the petitioners has placed reliance upon the following authorities : [A] Gulab Das & Ors. v. State of Madhya Pradesh, 2011 (10) SCC 725; [B] Mahesh Chand v. State of Rajasthan, AIR 1988 SC 2111 ; [C] Bachubhai Mangalbhai Chavda v. State of Gujarat, Criminal Revision Application No. 160/2011 [D] Vijaybhai Trikambhai Patel & Ors. v. State of Gujarat, Criminal Appeal No. 532 of 2002; [E] Shahzad v. State, Criminal Appeal No. 358 of 2012. 7. v. State of Gujarat, Criminal Appeal No. 532 of 2002; [E] Shahzad v. State, Criminal Appeal No. 358 of 2012. 7. In case of Gulab Das & Ors. v. State of Madhya Pradesh [Supra], the Apex Court, while upholding the order of conviction recorded by the Courts below, reduced the sentence awarded to the appellants therein to the sentence already undergone by them. The Apex Court was considering whether prayer for composition of offence under Section 307 IPC could be allowed, having regard to compromise arrived at between the parties. 8. In case of Mahesh Chand v. State of Rajasthan [Supra], the parties before the Apex Court came to terms and wanted permission to compound the offence punishable under Section 307 IPC. The Apex Court, after giving anxious consideration to the case and also the plea put forward for seeking permission to compound the offence, directed the trial Judge to accord permission to compound the offence, after giving an opportunity to the parties and after being satisfied with the compromise agreed upon. 9. This Court in case of Bachubahi Mangalbhai Chavda v. State of Gujarat & Anr. [Supra] permitted an offence under Section 498A IPC to be compounded by quashing and setting aside the judgment and order dated 20th March 2009 of the learned Chief Judicial Magistrate, Rajkot convicting the applicant to undergo simple imprisonment for one month and to pay fine as well as of the learned Addl. Sessions Judge, 2nd Fast Track Court, Rajkot confirming the said decision. 10. This is not a case of the Court quashing and setting aside the conviction. It is the case where the trial Court had convicted and appellate Court having reversed such order. In this case, Criminal Revision Application No. 34 of 2007 has been decided on merit and at that stage, the parties have chosen to enter into compromise. 11. Considering the long drawn litigation between the parties and keeping in view the decision of the Apex Court rendered in case of Jitendra Raghuvanshi & Ors. v. Babita Raghuvanshi & Anr., reported in 2013 (3) GLR 1875 , the request made is acceded to. 12. Apt it would be to reproduce the relevant observations made by the Apex Court in case of Jitendra Raghuvanshi & Ors. v. Babita Raghuvanshi & Anr., reported in 2013 (3) GLR 1875 , which reads thus- "14. v. Babita Raghuvanshi & Anr., reported in 2013 (3) GLR 1875 , the request made is acceded to. 12. Apt it would be to reproduce the relevant observations made by the Apex Court in case of Jitendra Raghuvanshi & Ors. v. Babita Raghuvanshi & Anr., reported in 2013 (3) GLR 1875 , which reads thus- "14. The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi (Supra), this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at. 25. In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings. 16. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its extraordinary jurisdiction. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders." 13. In the result, this Special Criminal Application is allowed. The F.I.R. being CR No. I-99 of 1999 filed before Dhrangadhra Police Station, Surendranagar for the offence punishable under Sections 498A, 324, 506 (2) & 114 IPC is hereby ordered to be quashed. All consequential proceedings pursuant thereto shall stand terminated. 14. Rule is made absolute. Direct service is permitted. Application allowed.