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Arunbhai Bhagwanjibhai Vyas … vs State Of Gujarat on 19 December, 2018

R/CR.MA/21377/2018 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION NO. 21377 of 2018

ARUNBHAI BHAGWANJIBHAI VYAS (JASPARA)
Versus
STATE OF GUJARAT

Appearance:
HARSHESH R KAKKAD(7813) for the PETITIONER(s) No. 1
MR RC KAKKAD(389) for the PETITIONER(s) No. 1,2
for the RESPONDENT(s) No. 2
MS. JIRGA JHAVERI, APP (2) for the RESPONDENT(s) No. 1

CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

Date : 19/12/2018

ORAL ORDER

1. This Court on 19.11.2018 passed the following
order:

“1. The present respondent No.2 who is
the complainant has lodged an FIR being
C.R. No.I143 of 2018 at Keshod Police
Station, Junagadh on 21.10.2018 for the
offences punishable under Sections 498A,
323, 504, 506(2) and 114 of the Indian
Penal Code.

2. The earlier complaint made being C. R.
No. I3 of 2017 registered with Keshod
Police Station, Junagadh on 28.03.2015
for the offences punishable under
Sections 498A, 323, 506(2) and 114 of the
Indian Penal Code.

3. According to the learned advocate
appearing for the applicants, the learned
Additional Chief Judicial Magistrate,

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R/CR.MA/21377/2018 ORDER

Keshod has acquitted the present
applicants and others by giving benefits
of doubts from all the charges vide
judgment and order dated 05.07.2017. He
has urged that as such complainant is not
desirous of staying under the same roof
with the father of the applicant.

4. Let the investigating officer remain
present on the next date of
hearing.

5. In the meantime, the Investigating
Officer shall follow the dictum of the
Hon’ble Apex Court rendered in the case
of
Joginder Kumar V. State of Uttar
Pradesh and others, reported in (1994) 4
SCC 260.

6. Let the matter be appear on
27.11.2018.”

2. Today, the affidavit of the respondent no. 2

– original complainant, viz. Pratikshaben
Prakashbhai Pandya is brought on record, wherein
she has stated that parties have arrived at with
the settlement and a deed of divorce dated
10.12.2018 have been executed before the Notary,
wherein one of the terms is that daughter who is
aged 2 ½ years is continued to remain with the
father and she also does not claim any amount of
maintenance. She has given divorce voluntarily.

3. This court has heard learned advocates
appearing for the respective parties as well as
learned Additional Public Prosecutor appearing for
the respondent – State.

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R/CR.MA/21377/2018 ORDER

4. Having heard both the sides and also

considering the broad guidelines issued by the
Apex court in the case of Gian Singh v. State of
Punjab and Another reported in (2012) 10 SCC 303
and Narinder Singh and others v. State of Punjab
and another reported in (2014) 6 SCC 466, the
request of the applicants of the aforesaid
application is acceded to.

5. Considering the findings and observations of
the Apex Court in the case Gian Singh (supra) in
paragraphs 53, 54 and 57 read as under:

“53. Quashing of offence or criminal proceedings on
the ground of settlement between an offender and
victim is not the same thing as compounding of
offence. They are different and not interchangeable.
Strictly speaking, the power of compounding of
offences given to a court under
Section 320 is
materially different from the quashing of criminal
proceedings by the High Court in exercise of its
inherent jurisdiction. In compounding of offences,
power of a criminal court is circumscribed by the
provisions contained in
Section 320 and the court is
guided solely and squarely thereby while, on the
other hand, the formation of opinion by the High
Court for quashing a criminal offence or criminal
proceeding or criminal complaint is guided by the
material on record as to whether the ends of justice
would justify such exercise of power although the
ultimate consequence may be acquittal or dismissal of
indictment.

54. Where High Court quashes a criminal
proceeding having regard to the fact that dispute
between the offender and victim has been settled
although offences are not compoundable, it does so as
in its opinion, 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 peace is restored; securing the

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R/CR.MA/21377/2018 ORDER

ends of justice being the ultimate guiding factor. No
doubt, crimes are acts which have harmful effect on
the public and consist in wrong doing that seriously
endangers and threatens well­being of society and it
is not safe to leave the crimedoer only because he
and the victim have settled the dispute amicably or
that the victim has been paid compensation, yet
certain crimes have been made compoundable in law,
with or without permission of the Court. In respect
of serious offences like murder, rape, dacoity, etc;
or other offences of mental depravity under
IPC or
offences of moral turpitude under special statutes,
like
Prevention of Corruption Act or the offences
committed by public servants while working in that
capacity, the settlement between offender and victim
can have no legal sanction at all. However, certain
offences which overwhelmingly and predominantly bear
civil flavour having arisen out of civil, mercantile,
commercial, financial, partnership or such like
transactions or the offences arising out of
matrimony, particularly relating to dowry, etc. or
the family dispute, where the wrong is basically to
victim and the offender and victim have settled all
disputes between them amicably, irrespective of the
fact that such offences have not been made
compoundable, the High Court may within the framework
of its inherent power, quash the criminal proceeding
or criminal complaint or F.I.R if it is satisfied
that on the face of such settlement, there is hardly
any likelihood of offender being convicted and by not
quashing the criminal proceedings, justice shall be
casualty and ends of justice shall be defeated. The
above list is illustrative and not exhaustive. Each
case will depend on its own facts and no hard and
fast category can be prescribed.

57. 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 F.I.R may be exercised where the
offender and victim have settled their dispute would

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R/CR.MA/21377/2018 ORDER

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
serious impact on society. Similarly, any compromise
between the victim and offender in relation to the
offences under special statutes like
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 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, High Court may quash criminal
proceedings if in its view, because of the compromise
between the offender and victim, the possibility of
conviction is remote and bleak and continuation of
criminal case would put 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
wrongdoer and whether to secure the ends of justice,
it is appropriate that criminal case is put to an end
and if the answer to the above question(s) is in
affirmative, the High Court shall be well within its
jurisdiction to quash the criminal proceeding.”

6. Considering the findings and observations of
the Apex Court in the case Narinder Singh

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R/CR.MA/21377/2018 ORDER

(supra) in paragraphs 11, 12 and 27 read as
under:

“11.As to under what circumstances the
criminal proceedings in a non­ compoundable
case be quashed when there is a settlement
between the parties, the Court provided the
following guidelines:

“Where the High Court quashes a criminal
proceeding having regard to the facts that
the dispute between the offender and the
victim has been settled although the
offences are not compoundable, it does so
as in its opinion, 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 peace is
restored; securing the ends of justice
being the ultimate guiding factor. No
doubt, crimes are acts which have harmful
effect on the public and consist in
wrongdoing that seriously endangers and
threatens the well­being of the society
and it is not safe to leave the crime­doer
only because he and the victim have
settled the dispute amicably or that the
victim has been paid compensation, yet
certain crimes have been made compoundable
in law, with or without the permission of
the court. In respect of serious offences
like murder, rape, dacoity, etc. or other
offences of mental depravity under
IPC or
offences of moral turpitude under special
statutes, like the
Prevention of
Corruption Act or the offences committed
by public servants while working in that
capacity, the settlement between the
offender and the victim can have no legal
sanction at all. However, certain offences
which overwhelmingly and predominantly
bear civil flavor having arisen out of
civil, mercantile, commercial, financial,
partnership or such like transactions or
the offences arising out of matrimony,

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R/CR.MA/21377/2018 ORDER

particularly relating to dowry, etc. or
the family dispute, where the wrong is
basically to the victim and the offender
and the victim have settled all disputes
between them amicably, irrespective of the
fact that such offences have not been made
compoundable, the High Court may within
the framework of its inherent power, quash
the criminal proceeding or criminal
complaint or FIR if it is satisfied that
on the face of such settlement, there is
hardly any likelihood of the offender
being convicted and by not quashing the
criminal proceedings, justice shall be
casualty and ends of justice shall be
defeated. The above list is illustrative
and not exhaustive. Each case will depend
on its own facts and no hard­and­fast
category can be prescribed.”

12.Thereafter, the Court summed up the
legal position in the following words:

“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

Page 7 of 11
R/CR.MA/21377/2018 ORDER

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. 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

Page 8 of 11
R/CR.MA/21377/2018 ORDER

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.”

27.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

Page 9 of 11
R/CR.MA/21377/2018 ORDER

proceedings which in all likelihood would
end in acquittal, in any case.”

7. Considering the very young age of the child,
whose custody is retained by the father, this
Court deemed it fit to refer the matter to the
High Court Mediation Center, where the Member
Secretary Mr. H.S. Muliya, himself had acted as a
Mediator and verified all the details, made all
possible attempts. It is reiterated that there is
nothing to doubt the genuineness, nor is there
coercion or force in arriving at the consent
terms by the respondent no.2. With this report,
this Court is inclined to consider the request of
the quashment of the F.I.R.

8. This Court appreciates the prompt and
efficient services rendered by Mr. H.S. Muliya,
Member Secretary, High Court Mediation Center.

9. Noticing that the dispute has been settled
due to intervention of the family and friends,
therefore, no purpose is likely to be served
continuing the litigation. Therefore, the request
of the parties is acceded to.

10. For the foregoing reasons, the present
application is allowed and First Information
Report being I­C.R. No. 143 of 2018 registered at

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R/CR.MA/21377/2018 ORDER

Keshod Police Station, District: Junagadh is
hereby quashed and set aside alongwith all the
proceedings emanating therefrom.

This application is allowed, accordingly.

Direct service is permitted.

(MS SONIA GOKANI, J)
pradhyuman

Page 11 of 11

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