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2020 DIGILAW 855 (GUJ)

Bhalani Vallabhbhai Lavjibhai v. State Of Gujarat

2020-10-13

ASHOKKUMAR C.JOSHI

body2020
JUDGMENT : 1. The Applicant has filed this Application under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the FIR being CR No. 11210012200912 of 2020 registered with Chowk Bazar Police Station, District – Surat for the offences punishable under Sections 376(2)(N) of the Indian Penal Code, with all other consequential proceedings arising therefrom. 2. Heard learned Advocate Mr. Matafer R. Pande for the applicant, learned APP Mr. Hardik Soni for the Respondent – State of Gujarat and learned advocate Mr. Hemant B. Raval for the Respondent No. 2 – original complainant through video conference. Factual Matrix of the Case: 3. Learned Advocate for the applicant has vehemently submitted that in the present case both, the complainant and accused have settled the case and therefore, no cause survives and for living peaceful life and forgive bitterness, they have made compromise. He further submitted that an amicable settlement is arrived at between the Complainant and the applicant Accused and the Affidavit to that effect is also placed on record. He further submitted that the applicant Accused has no serious antecedents and therefore, discretion may be exercised by this Hon'ble Court and the Application may be allowed and the FIR and the consequential proceedings arising therefrom may be quashed. 3.1 Learned advocate for the applicant has placed reliance upon four different authorities of Hon’ble Supreme Court and this Court, viz. (i) The Hon’ble Supreme Court in case of Narender Singh & Others vs. State of Punjab and Another reported in (2014) 6 SCC 466 , (ii) Iqbal Dawood Hala Vs. State of Gujarat, reported in 2013 (0) AIJEL-HC 229756, (iii) a judgment in case of Janki Chintan Shah Vs. State of Gujarat, reported in 2014 (0) AIJEL-HC 231973 and (iv) Arun Singh And Others vs. State of Uttar Pradesh Through Its Secretary And Another, reported in (2020) 3 Supreme Court Cases 736. 4. Per contra, learned APP has heavily opposed the petition and the amicable settlement arrived at between the parties on the ground that the character of the petitioner is not good. It is submitted that at the age of 71 years, he should not have been indulged in such activities and therefore, the consent quashing may not be allowed and the petition deserves to be dismissed. It is submitted that at the age of 71 years, he should not have been indulged in such activities and therefore, the consent quashing may not be allowed and the petition deserves to be dismissed. He further submitted that if the Hon’ble Court is inclined to allow the present petition in that case heavy cost may be awarded. 4.1 Learned APP has further placed reliance upon the judgment delivered by Hon’ble Supreme Court in case of State of Madhya Pradesh Vs. Dhruv Gurjar reported in 2019(0) AIJEL – SC 63692, wherein, it is held that High Court quashed FIR on the basis of a compromise between complainant and accused, when there were antecedents upon the applicant, application for consent quashing was not be considered, by Hon’ble Apex Court. 5. Learned advocate for the respondent no. 2 has placed on record Statement of Affidavit sworn by the Respondent No. 2 - original complainant dated 10.9.2020. Learned Advocate for Respondent No.2 – Original Complainant has also identified the original complainant who is personally present in the video conference. He has also identified her signature on the affidavit. The Affidavit reads thus: “.........After the registration of the FIR main person of the society, and common friend of the Original accused and original complainant intervened and matter is settled. I the original complainant don’t want to proceed with the aforesaid FIR; there is no mala-fide intention behind filing this affidavit. This affidavit is in English language which is translated to me into Gujaraati language, which I know the best. I have made this affidavit to file with the petition of the petitioner (Original Accused). I have made this affidavit with good faith, not to spoil the relation with the petitioners because myself and the original accused are from the same community and from the same caste and I have made this affidavit without any pressure and I have signed on this affidavit with my full conscious.” 6. Learned Advocate for the applicant and learned advocate for the original complainant have jointly submitted that the parties have entered into an amicable settlement by way of affidavit which is produced on record. Therefore, they have submitted that the Application may be allowed and the FIR may be quashed. 7. Learned Advocate for the applicant and learned advocate for the original complainant have jointly submitted that the parties have entered into an amicable settlement by way of affidavit which is produced on record. Therefore, they have submitted that the Application may be allowed and the FIR may be quashed. 7. This Court has considered the arguments advanced by the learned Advocates appearing for the respective parties and also referred to authorities submitted by the learned advocate for the applicant. 8. As per the statement made by the Original Complainant, it is seen that it is a case of rape. She has further stated that the petitioner is 71 years old coupled with some heart ailment as per the information, the petitioner and the complainant has also stated before this court that she came to know later on about her problem of the petitioner whose age is 71 years, a senior citizen and therefore the trial would be a futile exercise and when both are major and had given consent and upon that compromise, the prosecutrix has given the consent in the affidavit, the conviction by the Sessions Court is a difficult task and therefore it is a fit case to exercise discretion vested under Section 482 of Cr.PC for availing the ends of justice. 9. Having regard to the arguments advanced by both the sides, before I invoke the jurisdiction of this court under Section 482 of the Criminal Procedure Code [hereinafter referred to as “Code”], I would like to refer to Section 482 of the Code which is as under: “482 Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 10. Upon plain reading of the section, it starts with the word “Nothing in this Code shall be deemed to limit....”. It means this Court has extraordinary powers where there is no limit under the provisions to exercise for the same. Further, it states “affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code”. It means this Court has extraordinary powers where there is no limit under the provisions to exercise for the same. Further, it states “affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code”. It means, again if the powers are exercised under this provision, it shall not effect to the inherent powers of the High Court. Further, legislation has used the word “May”. Therefore, it is purely discretionary power. Further, it reads with the words “to prevent abuse of the process of any Court or otherwise to secure the ends of justice”. It means I have to examine (i) to prevent the abuse of process of the Court; and (ii) to secure ends of justice. Both the objectives are also considered by Hon'ble Supreme Court in case of Narendra sing. v. State of Pubjab [ 2014 (6) SCC 466 ]. 10.1 It is true that nowhere in the Code, there is definition of abuse of process of the court, nowhere it is discussed. Simultaneously, explanation for securing the ends of justice is also not defined and therefore, every case has different facts and circumstances, but simultaneously, to arrive at true conclusion or to exercise the extraordinary powers, I have to rely on landmark decisions of Hon'ble Supreme Court, for exercising powers under Section 482 of Criminal Procedure Code. [A] Hon'ble Supreme Court in case of Parbhatbhai Ahir v. State of Gujarat [ 2017 (9) SCC 641 ], following 10 principles are laid down, which are as under:- “1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inherent in the High Court. 2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. 3. While compounding an offence, the power of the court is governed by the provisions of Section 320of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. 3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power. 4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (a) to secure the ends of justice. (b) to prevent an abuse of the process of any court. 5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. 6. In the exercise of the power under section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. 7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned. 8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. 9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; 10. 9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; 10. There is yet an exception to the principle set out in propositions (viii) and above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance." [B] Further, in the case of State of Haryana v. Bhajan Lal [ AIR 1992 SC 604 ], following 7 categories of cases had been laid down, which are as under:- “1. Where the allegations made in the FIR, even if taken at 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 FIR and other materials, if any, accompanying the FIR 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 allegations made in the FIR 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, unless a Magistrate has issued an order for the same, as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR are absurd to the extent that no prudent man can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. 5. Where the allegations made in the FIR are absurd to the extent that no prudent man 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 which a criminal proceeding is instituted, with regard to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide intention 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/or personal grudge.” [C] Further, in case of R.P.Kapur v. State of Punjab [ AIR 1960 SC 260 ], Hon’ble Supreme Court has held that while exercising powers under Section 482 of the Criminal Procedure Code, a criminal proceedings against a person can be quashed if the case belongs to any one of the following classes : “1. Where there is a legal bar against institution or continuance of the criminal proceedings. 2. Where the allegations in the FIR do not constitute an offence, even if taken at face value and in their entirety. 3. Where the allegations made constitute an offence, but there is no evidence which can prove them.” 11. The Hon’ble Supreme Court (i) in case of Narender Singh & Others vs. State of Punjab and Another reported in (2014) 6 SCC 466 has observed as under: “8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary powers to refuse to compound the offence. However, compounding under section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of the offences enumerated in section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. However, compounding under section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of the offences enumerated in section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. Insofar as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of theses powers were described by this Court in B.S. Joshi vs. State of Haryana which has been followed and further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter.” 12. Thereafter, the Court summed up the legal position in the following words: “61. The position that emerges from the above discussion can be summarized 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 plentitude with no statutory limitation but it has to be exercised in accord with the guidelines 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 FIR may be exercised where the offender and the 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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 predominatingly civil flavor stand on a 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, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above questions is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” The Court in Gian Singh case was categorical that in respect of serious offences or other offences of mental depravity or offence of merely decoity under special statute, like the prevention of Corruption Act or the offences committed by public servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such henious crime cannot have imprimatur of the Court.” (ii) The Coordinate Bench passed a judgment in case of Iqbal Dawood Hala Vs. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such henious crime cannot have imprimatur of the Court.” (ii) The Coordinate Bench passed a judgment in case of Iqbal Dawood Hala Vs. State of Gujarat, reported in 2013 (0) AIJEL-HC 229756, held as under: “Code of Criminal Procedure, 1973-S.482-Indian Penal Code, 1860-S.504, 143, 147, 148, 149, 326 – Arms Act, 1959 – S.25(1)(c)- Bombay Police Act, 1951-S.135(1)-quashing of the criminal complaint- dispute between the parties is of private and personal nature – complainant has admitted that the complainant and original accused i.e. the applicants have voluntarily settled the dispute – complainant – respondent No.2 has also admitted that he does not want to prosecute the complaint further qua the applicants – held no fruitful purpose will not be served in continuing the prosecution of the complaint – fit case for exercising powers u/s. 482 of the Code to prevent abuse of the process of Court – criminal complaint quashed – application allowed.” (iii) The Coordinate Bench passed a judgment in case of Janki Chintan Shah Vs. State of Gujarat, reported in 2014 (0) AIJEL-HC 231973, held as under: “Code of Criminal Procedure, 1973 – S. 482 – Indian Penal Code, 1860 – S. 120B, 307, 326 – Arms Act, 1959 – 25(1)(b), 25(1)(a) – quashing of complaint – applicant was not named as an accused in the complaint but was shown as witness – however later on investigating officer joined him as an accused – compromise and settlement between the parties – both the sides present before the Court – complainant filed an affidavit in support of the applicant/accused and confirmed about the settlement – denial of allegation by the complainant against the applicant – no objection to the complainant if complaint is quashed qua applicant only – case of narinder Singh (Supra) referred and relied upon – fit case to exercise jurisdiction u/s 482 of the Code – complaint qua applicant quashed – application allowed.” (iv) The Coordinate Bench passed a judgment in case of Kalubhai Virabhai Thakor (Mauluna) v. State of Gujarat, 2019 (0) AIJEL-HC 240101 (Criminal Miscellaneous Application No. 1399 of 2019) has observed as under: “27. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173, Cr.P.C. is also placed before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. Sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case.” 12. Upon all such authorities, which have been submitted by the learned advocate for the applicants, authorities nos. (i) in case of Narender Singh & Others vs. State of Punjab and Another (ii) Iqbal Dawood Hala Vs. State of Gujarat and (iii) Janki Chintan Shah Vs. State of Gujarat and (iv) Kalubhai Virabhai Thakor (Mauluna) v. State of Gujarat, 2019 (0) AIJEL-HC 240101 are fully applicable to the present case. However, learned APP placed reliance upon the judgment in case of State of Madhya Pradesh Vs. Dhruv Gurjar reported in 2019(0) AIJEL – SC 63692, but same is for offences under Section 307 of IPC, punishment is for life imprisonment or 10 years and antecedents, but in present case, no antecedent. However, learned APP placed reliance upon the judgment in case of State of Madhya Pradesh Vs. Dhruv Gurjar reported in 2019(0) AIJEL – SC 63692, but same is for offences under Section 307 of IPC, punishment is for life imprisonment or 10 years and antecedents, but in present case, no antecedent. In addition to that this Court has also referred to the latest order passed by the co-ordinate Bench in case of Kalubhai Virabhai Thakor (Mauluna) v. State of Gujarat, 2019 (0) AIJEL-HC 240101 and therefore this Court is of the view that when the parties have amicably settled the disputes in such offences, there is no requirement of trial and same would be against the ends of justice. Therefore, FIR is required to be quashed under section 482 of the Cr.P.C. Further, learned APP has vehemently submitted that in the case on hands offences are more serious in compare to ratio of State of Madhya Pradesh Vs. Dhruv Gurjar (Supra), if Court is inclined to exercise discretion, then heavy cost may be imposed. 13. Having heard the arguments advanced by the learned Advocates appearing for the respective parties and the authorities cited by the learned advocate for the applicant, it transpires that the offence is registered upon the applicant Accused for the offences punishable under Section 376(2)(N) of the Indian Penal Code. Further, there is amicable settlement arrived at between the complainant and the accused person by way of an affidavit, therefore, it would be futile exercise if the trial shall take place and the purpose of the same would not be served and therefore, it would be just and proper to quash the aforesaid FIR. 14. In view of the aforesaid facts and circumstances and the further development that took place in the matter as come forward by way of an Affidavit by the Respondent No.2 - Original Complainant, learned Advocate appearing for the applicant has submitted that now the cause does not survive and therefore the FIR may be quashed and set aside. 15. This Court has referred to the land mark decision of Hon’ble Supreme Court in case of Parbatbhai Aahir vs. State of Gujarat reported in 2017 SCC online SC 1189 and in case of State of Madhyapradesh vs. Laxmi Narayan and Others reported in (2019) 5 SCC 688 . 15. This Court has referred to the land mark decision of Hon’ble Supreme Court in case of Parbatbhai Aahir vs. State of Gujarat reported in 2017 SCC online SC 1189 and in case of State of Madhyapradesh vs. Laxmi Narayan and Others reported in (2019) 5 SCC 688 . But, in the present case offences which are registered upon the applicant is settled, which is discussed earlier. 16. Pursuant to FIR, it appears that the dispute is settled and therefore, in view of the fact that the dispute between the petitioner and Respondent No. 2 – original complainant have been amicably settled, 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 thereby peace is restored, securing the ends of justice being the ultimate guiding factor. Moreover, any further continuation of proceedings in this matter would amount to abuse of process of law. Therefore, it would be expedient to quash the subject- FIR and the consequential proceedings emanating therefrom. 17. In view of the aforesaid discussion and the submission made by the learned Advocates appearing for the parties, this Court is inclined to exercise discretion in favour of the applicant vested under Section 482 of the Cr.PC. Therefore, the present application deserves to be allowed and accordingly stands allowed with costs. FIR being CR No. 11210012200912 of 2020 registered with Chowk Bazar Police Station, District – Surat for the offences punishable under Sections 376(2)(N) of the Indian Penal Code is hereby quashed and set aside. 18. The petitioner is directed to deposit the cost of Rs.50,000/- before the Gujarat State Legal Services Authority within two weeks from the date of this order and only after depositing the amount of cost, the consent quashing shall come into effect. 19. Rule is made absolute accordingly. Copy of this order be sent to the concerned Court and concerned Police Station and the Gujarat State Legal Services Authority through e-mail/fax. Direct service through E-mail/Fax is permitted.