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2023 DIGILAW 89 (GUJ)

Mohmad Rizwan Aiyub Limbada v. State Of Gujarat

2023-01-10

GITA GOPI

body2023
ORDER : 1. The aforesaid applications have been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIRs being C.R. Nos.11199050200173/2020, 11199050200170/2020 and 11199050200170/2020 respectively registered before Valia Police Station, Dist.: Bharuch for offences punishable under Sections 143, 147, 148, 149, 323, 324, 354, 427, 504, 506(2), 188 of the Indian Penal Code, Sections 135 & 139 of the G.P.Act, Section 51(B) of Disaster Management Act and Section 3 of Epidemic Diseases Act. 2. It is submitted by Mr.A.V.Agrawal, learned advocate and Mr.M.M.Saiyed, learned advocate appearing on behalf of the respective applicants that the impugned FIRs which are sought to be quashed, have arisen out of the common incident and both are cross case. 3. The issue was regarding monetary transactions which had taken a sour turn leading to filing of FIRs during the Covid, hence, apart from the Sections of IPC, Section 51(B) of the Disaster Management Act and Epidemic Disease Act have been invoked. 4. Both the Advocates submit that the accused and the complainant of both the matters are knowing each other and the parties have settled the dispute amicably outside the Court and that there remains no grievance between them. Therefore, in the larger interest of the society, the impugned complaint may be quashed and set aside. 5. The complainant Mr. Mohamad Rizwan Aiyub Limbada in Criminal Misc. Application No.6900 of 2020 and Criminal Misc. Application No.15278 of 2020, while complainant Yasmin Iqbal Mahmad Chandsha in Criminal Misc. Application No.12602 of 2020 are present before this Court and stated that there remains no dispute between them and they have settled the matter outside the Court and thus both the complainants urged to quash the FIRs against all the accused. 5.1 Learned advocates submitted that the Court may verify the said aspect from the original complainants - respondent nos.2 in the matters, who are present before the Court and identified by their respective advocates. 6. Advocate Mr. M.M.Saiyd has relied upon the case of State of U.P. through C.BI. S.P.E. Lucknow and Anr. Vs. R.K.Srivastava & Ors. reported in AIR(1989) SCC 2222, to submit that when the allegations in the FIR are same against all the accused persons, then entire proceedings against all should be quashed. 6. Advocate Mr. M.M.Saiyd has relied upon the case of State of U.P. through C.BI. S.P.E. Lucknow and Anr. Vs. R.K.Srivastava & Ors. reported in AIR(1989) SCC 2222, to submit that when the allegations in the FIR are same against all the accused persons, then entire proceedings against all should be quashed. Mr.Saiyed states that only one accused could not be joined as a petitioner in the matter; however, since they are all from a same locality, therefore urges to quash the FIRs against all the accused. 7. This Court verified the contents of the Affidavits with the original complainants – respondent nos.2 in the matters, who are present before the Court. The original complainants, affirmed about the execution of the Affidavits dated 10.01.2023, wherein terms of settlement have been recorded. The original complainants, categorically stated that they have no grievance against the applicants and that they have no objection to the quashment of the impugned first information reports filed by them. 8. Mr.Pranav Trivedi, learned Additional 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. 9. This Court has heard the learned advocates appearing for the respective parties and has perused the material on record. In the Affidavits dated 10.01.2023 filed by respondent no.2 - original complainants in the matters, it has been categorically averred that the dispute with the applicants has been amicably resolved. It is also averred that there is no ill-will between the parties and that the original complainants had not sustained any serious injury in the alleged incident. 10. 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.” 10.1 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 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. 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.” 11. 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; 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.” 12. In the present matters, the impugned complaints were filed on 06.05.2020 and the Affidavits of the original complainants in the present matters, regarding settlement of the disputes have been executed on 10.01.2023. In the present matters, the impugned complaints were filed on 06.05.2020 and the Affidavits of the original complainants in the present matters, regarding settlement of the disputes have been executed on 10.01.2023. 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 matters are regarding monetary transactions and it could be a futile exercise for trial to proceed against them as it would not yield any fruitful result. 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. 13. The Home Secretary, Central Government vide its letter dated 22.03.2022, had put-up an advisory and the National Disaster Management Authority had recommended discontinuation of invocation of the Disaster Management Act, 2005 for Covid contentment measures. Thus, taking into consideration the said advisory, FIRs invoking the provisions of IPC alongwith provisions of Disaster Management Act and Epidemic Disease Act are also required to be quashed and set aside. 14. In the result, the petitions are allowed. The impugned FIRs being C.R.Nos.11199050200173/2020, 11199050200170/2020 and 11199050200170/2020 respectively, impugned in the present matters, registered before the Valia Police Station, Dist. Bharuch, and the proceedings, if any, initiated in pursuance thereof, are quashed and set aside against all the accused. Office to keep copy of this order in each matters.