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2021 DIGILAW 461 (GUJ)

ALARAKHA HABIB DAFER v. STATE OF GUJARAT

2021-06-22

GITA GOPI

body2021
ORDER : 1. Rule. Ms. Monali Bhatt, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent Nos.1. Though served, no one preferred to appear on behalf of respondent no.2 – Original complainant. 2. This application has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being C.R. No.I-24 of 2018 registered with Dhrol Police Station, Dist.: Jamnagar for offfences punishable under sections 363 and 366 of the IPC and the proceedings initiated pursuant thereto. 3. Mr. Pravin Gondaliya, learned advocate for the applicant, submitted that the parties are of Mohammedan community. The father was not in favour of the relation between the applicant and his daughter, hence, a false complaint has been filed. Mr. Gondaliya stated that the daughter of the complainant and the applicant has already entered into marriage / ‘Nikah Karar’ and out of the said wedlock, the daughter of the original complainant, wife of the present applicant, has delivered a baby boy on 27.05.2019. The are happily married and there was no ill intention. He submitted that the daughter of the complainant has filed her affidavit to state that she has on her own volition and free will entered into matrimonial ties and is staying with her husband and child at the matrimonial home. Mr. Pravin Gondaliya, learned advocate for the applicant, submitted that there is no allegation of offence under the POCSO Act, thus, prayed for quashing and setting aside the impugned FIR and the proceedings initiated pursuant thereof against the present applicant. 4. Mr. Gondaliya, learned advocate for the applicant, states that, though the notice was served upon the respondent no.2 – original complainant, he preferred not to appear in this matter. He submits that, it appears that the respondent no.2 has nothing to say now in terms of the FIR filed. 5. Ms. Monali Bhatt, learned Public Prosecutor, submitted that any First Information Report should be quashed in accordance with the guidelines of the Apex Court and the parameters laid down therein. 6. Heard Mr.Pravin Gondaliya, learned advocate for the applicant and Ms. Monali Bhatt, learned APP for the State. Along with the memo of petition, the affidavit of the daughter of the complainant, wife of the present applicant, copy of the marriage deed / ‘Nikah Karar’, is produced on record. 6. Heard Mr.Pravin Gondaliya, learned advocate for the applicant and Ms. Monali Bhatt, learned APP for the State. Along with the memo of petition, the affidavit of the daughter of the complainant, wife of the present applicant, copy of the marriage deed / ‘Nikah Karar’, is produced on record. From the above documents, it appears that the applicant and the daughter of the complainant had married in the year 2019 and have been residing together since then. The daughter of the complainant, wife of the present applicant, has stated in the affidavit that applicant has not committed any alleged offence and she has married the petitioner and residing happily with the applicant. 6.1 The report of the Circle Police Officer, District: Jamnagar is also on record and according to the report after the FIR was lodged under Sections 363 and 366 of IPC, ‘A’ Summary Report No.06/2019 came to be filed on 10.05.2019, and thereafter the present applicant was granted anticipatory bail by this Court on 19.07.2019 in Criminal Misc. Application No.13781 of 2019. As per the report, in pursuance of the order of this Court dated 27.01.2020, the statement of victim girl was recorded on 19.06.2018. As per the statement recorded, the present applicant abducted the girl and she was in love affairs with the applicant. She stated that she has married the applicant and had produced birth certificate of her child, ‘Nikah Karar’ and marriage certificate. The report is supported by the statement of the victim dated 24.02.2020 with notarized copy of the agreement of marriage, birth certificate of the child and victim girl, Adahar Card of the applicant and victim girl and the marriage certificate issued by ‘Kaji’. 7. It is true that the offences alleged against the present applicant under the Indian Penal Code are noncompoundable and that some of the offences could be compounded with the permission of the Court. Considering the principle laid down by the Apex Court in the case of Gian Singh v. State of Punjab and another reported in 2012 (10) SCC 303 , the present matter would fall under the criteria laid down therein. In paragraph-61 of the said judgment, it has been observed thus: “61. Considering the principle laid down by the Apex Court in the case of Gian Singh v. State of Punjab and another reported in 2012 (10) SCC 303 , the present matter would fall under the criteria laid down therein. In paragraph-61 of the said judgment, it has been observed thus: “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. 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 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 victims 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. But the criminal cases having overwhelmingly and predominatingly civil flavour 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. 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 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 question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 8. In the case of State of Madhya Pradesh v. Laxmi Narayan and others reported in (2019) 5 SCC 688 , the Apex Court had the occasion to consider the issue as to whether an FIR lodged for the 2 offences punishable under sections 307 and 34 IPC could be quashed on the basis of the settlement between the parties. While considering the said issue, the Apex Court observed in para-13 thus: “13. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under: (i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; (ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; (iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; (iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; (v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.” 9. From the affidavit produced on record and the statement before the police dated 24.02.2020 of the daughter of the complainant, wife of the present applicant, it appears that she had on her own volition eloped with the applicant and on her own free will entered into agreement of marriage and the marriage certificate shows that the marriage took place in presence of witnesses. The girl has also produced birth certificate of child born out of the wedlock with the applicant. The parties are governed by the personal law of Mohammedan. There is no complaint under the POCSO Act. The daughter of the complainant is happily married and residing with the applicant. She has stated in the affdiavit that no offence has been committed, as alleged in the complaint. 9.1 Admittedly, the dispute is a private and personal affair. The injury sustained does not involve any mental depravity nor amounts to a heinous crime. The parties have married and have been staying together since the year 2019 and out of the said wedlock a baby boy has born. In view of the settlement arrived at between the parties, there exists no scope for any further proceeding in the matter. The continuance of proceedings would lead to wastage of precious judicial time as there would remain no possibility of any conviction in the case. In view of the settlement arrived at between the parties, there exists no scope for any further proceeding in the matter. The continuance of proceedings would lead to wastage of precious judicial time as there would remain no possibility of any conviction in the case. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised for securing the ends of justice. 10. In the result, the application is allowed. The impugned First Information Report being C.R. No.I-24 of 2018 registered with Dhrol Police Station, Dist.: Jamnagar and the proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.