Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 171 (GUJ)

Kirtibhai Jivanjbhai Bharvad v. State Of Gujarat

2023-01-20

GITA GOPI

body2023
ORDER : 1. The present petition has been filed under Section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being C.R. No.11216024200717 of 2020 registered before Kalol Taluka Police Station, Dist.: Gandhinagar for offence punishable under Sections 119, 380, 406, 409, 477, 384, 457, 114 & 120B of the Indian Penal Code as well as other consequential proceedings arising out of the aforesaid FIR. 2. Today, in the morning, all the parties have come with the Affidavits stating about the settlement of dispute which has started in the year 2003. The complainant – Ramanji Mangaji Thakor and his brothers Laxmanji Mangaji Thakor and Mohanji Mangaji Thakor as well as their sister Naniben Mangaji Thakor, are present before this Court, who have been identified by Advocate Mr.Parth Contractor. All the deponents accompanied with the complainant with the Affidavits have urged before this Court to quash the FIR submitting that the disputed land has been re-conveyed to them by way of Conveyance Deed and no grievance remains and all the disputes have been resolved between the parties. 3. Mr.Dhawan Jayswal, learned Additional Public Prosecutor, submits that the said FIR came to be filed after the order dated 26.11.2020 in Special Criminal Application No.8324 of 2018, wherein the complainant – present respondent No.2 had prayed before the Court in Special Criminal Application No.8324 of 2018 directing to register the FIR against (1) Ranchhod Ambalal Patel resident of Rancharda, kalol, who is also named as an accused in Criminal Complaint No.1931 of 2004, (2) Jayaram Cheharbhai Rabari, (3) Maljibhia Cheharbhai Rabari, (4) Kirti Jivanbhai Bharwad, (5) Shwetaben Prabodhchandra Patel (7) Saumi Prabodhchandra Patel, (8) Officers and employees of the Kalol Taluka Court and (9) other individuals, who are involved in perpetrating the offence whereby the original record of Court proceedings has gone missing. 3.1 Learned APP submitted that the Court on the prayer so made had directed the learned APP to inquire from the concerned Superintendent of Police as regard to lodging the FIR against the private persons, who were stated to be involved in the alleged offence of missing of records and proceedings from the Court file. Registry of this Court was also directed to call for the report from the concerned Principal District Judge inquiring as to what steps have been taken against the erring officer for the missing records. Registry of this Court was also directed to call for the report from the concerned Principal District Judge inquiring as to what steps have been taken against the erring officer for the missing records. 3.2 Learned APP further submitted that the proceedings were initiated at the instance of the complainant, and now, the said complainant has come up with the settlement which should not be accepted as the complainant himself was a person, who had moved criminal machinery. 4. Thus, this Court inquired from each of deponents regarding the contents of the Affidavits; Laxmanji Mangaji Thakor and Mohanji Mangaji Thakor, are reported to be ill and were sitting in the Court campus. Thus, this Court had instructed Advocate Mr. Parth Contractor, who is identifying all the persons to have video conferencing talk with both the brothers and thus, accordingly from the mobile device, this Court inquired from both the persons through video conferencing and they have accepted the contents of the Affidavit and expressed their desire to quash and set aside the FIR. 5. It is reported that subsequently during the course of inquiry, the Court staff namely Mahendra C. Raval was arraigned as an accused. The allegations in the FIR was that the agricultural land was alleged to be used and sold under the conspiracy of Shwetaben, who further sold the land to her brother Saumibhai by way of gift deed and by overreaching the order of the Court had sold the property to the accused Nos.5, 6 & 7 namely Jairambhai, Maljibhai and Kirtibhai respectively in the year 2007 by way of registered sale deed. Thereafter, it is alleged that the accused Jairambhai, Maljibhai and Kirtibhai, by forming unlawful assembly armed with the weapons, entered into the land and took quarrel with them and illegally had taken over the possession. It is further alleged that by way of false and forged power of attorney and to protect themselves from the Court process and order of the Court, all of them have hatched criminal conspiracy and thereafter under pre plan on 23.06.2011, with the assistance of Court Staff, had destroyed the original documents, original muddamal and original papers of the chargesheet with the intention to have personal gain. 6. 6. Senior Advocate Mr.Yogesh Lakhani has submitted that dispute was of land and when the allegation was that the original record and proceedings of the Court and papers were lost, entire file was reconstructed. He submits that after the order dated 26.11.2020 passed in Special Criminal Application No.8324 of 2018, inquiry was initiated from the administrative side of the Court and final report dated 31.03.2022 in a sealed cover of the Registrar Vigilance alongwith the annexures was forwarded to the Registrar Judicial. To verify the same the communication of Registrar Vigilance, which was called for by this Court by order was submitted at 2.30 p.m. The said report was placed before the Court and as per the report of the Registrar Vigilance in accordance with the order dated 04.04.2022 passed in Special Criminal Application No.8324 of 2018, the said report was pending and the Hon’ble Court had directed to keep the said report in sealed cover. According to the Registrar Vigilance, at present, the said report is in the custody of the Court on the record of Special Criminal Application No.8324 of 2020. 7. The Original Complainant Ramanji Mangaji Thakor filed an Affidavit, who is being identified by Advocate Mr.Parth Contractor, and by way of Affidavit he is seeking quashment of FIR stating that the complainant and his brothers and sister had resolved the disputes with the accused and thereafter, unconditionally the land was re-conveyed to them and Conveyance Deed dated 17.01.2023 bearing serial No.818 was executed in their favour. Affidavit is accompanied by copy of the Registered Conveyance Deed, wherein the Jerambhai Cheharbhai Rabari- accused No.1, Maljibhai Chehorbhai Rabari alias Maljibhi Chehorbhai Desai-accused No.2 and Kirtibhai Jivanbhai Bharwad alias Kirtikumar Jivanbhai Gopalak-accused No.3, are shown to be ‘the Party of the First Part’ who have conveyed the property back to the complainant and his two brothers and sister. The copy of the Conveyance Deed has been given by the complainant. Further prior to the execution of Conveyance Deed, consent terms were drawn and the parties had agreed to settle the disputes accordingly. As stated by Advocate Mr.Parth Contractor the same was submitted in Second Appeal No.135 of 2020 with Civil Application (For Stay) No.1 of 2020 and in view of consent terms, Second Appeal has been withdrawn. 8. Further prior to the execution of Conveyance Deed, consent terms were drawn and the parties had agreed to settle the disputes accordingly. As stated by Advocate Mr.Parth Contractor the same was submitted in Second Appeal No.135 of 2020 with Civil Application (For Stay) No.1 of 2020 and in view of consent terms, Second Appeal has been withdrawn. 8. The FIR itself shows that the dispute was regarding the land, the Civil Suits were filed and the proceedings between the parties before the Civil Court is reflected in the Conveyance Deed as well as Consent Terms which requires no mention here. 9. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604 , the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court in the said case made the following observations:- “8.1. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court in the said case made the following observations:- “8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised: (a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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; (c) where the uncontroverted allegations made in the FIR or complaint 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; (d) 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 without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) 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) 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; (g) where a criminal proceeding is manifestly attended with mala fide 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 personal grudge.” 9.1 The Hon’ble Apex Court in para-61 of Gian Singh v. State of Punjab and another reported in 2012 (10) SCC 303 , observed 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. 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 pre-dominatingly 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. 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.” 9.2. 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. 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.” 10. Upon verification, it is found that the parties have amicably settled all the disputes with the complainants, therefore, there is no reason to continue with the FIR. Upon verification, it is found that the parties have amicably settled all the disputes with the complainants, therefore, there is no reason to continue with the FIR. Thus, in view of the above and as the property has been re-conveyed to the heirs of Mangaji Thakor, FIR is required to be quashed and set aside as 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. 10.1 It is also to be noted that subsequently the Court staff Mahendra C. Raval, had been arraigned as an accused on the allegation that he had assisted the main accused in connection with the loss of record and proceedings of the criminal case, FIR is required to quashed and set aside against him too, since the cause raised in the impugned FIR does not survive. 11. In the result, the petition is allowed. The impugned FIR being C.R.No.11216024200717 of 2020 registered before Kalol Taluka Police Station, Dist.: Gandhinagar and the proceedings initiated in pursuance thereof are quashed and set aside against all the accused including Mahendrabhai C. Raval. 12. It is made clear that the proceedings in view of the report filed by the Registrar Vigilance in Special Criminal Application No.8324 of 2018 is an independent proceedings, hence during the hearing of Special Criminal Application No.8324 of 2018, if any person is found guilty in connection with the missing record and proceedings of criminal case, it would be open for the Registrar of the Court to initiate an appropriate proceedings against any of the person.