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Hiteshbhai Rameshbhai Nili vs State Of Gujarat on 13 December, 2018

R/SCR.A/10656/2018 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 10656 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 10621 of 2018

HITESHBHAI RAMESHBHAI NILI
Versus
STATE OF GUJARAT

Appearance:
MR. NITESH G JAIN(7178) for the PETITIONER(s) No. 1,2,3,4,5
for the RESPONDENT(s) No. 2
MR. MANAN MEHTA, APP (2) for the RESPONDENT(s) No. 1

CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

Date : 13/12/2018

COMMON ORAL ORDER

1. This Court on 05.12.2018 had passed the
following order:

“1. In both the matters, parties are present
for seeking quashment of FIR being I­CR No.
142 of 2012 registered with Limbayat Police
Station, Surat where the Court has convicted
the applicants under Sections 498A, 323,
504, 506(2), 114 of IPC and under Sections
3,
5 and 7 of Dowry Prohibition Act.

2. The second petition is filed for seeking
quashment of proceedings arising from the
Domestic Violence Act.

3. Affidavit of respondent No.2­original
complainant in the both the matters are
brought on record. The original complainant
confirms to enter into the settlement for
buying lasting peace she has also agreed to
end the dispute. By way of full and final

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R/SCR.A/10656/2018 ORDER

settlement to bring lasting peace, she also
agreed to give divorce and that purpose
would be final by way of mutual consent
under
Section 13B in the Hindu Marriage Act,
1955. On a query raised by this Court to the
respondent’s wife, she has submitted that
she is yet to receive her belongings and her
streedhan from the present applicants. Let
the same be handed over to her. The amount
of Rs.5,00,000/­ has already been paid,
which she had received. The Demand Draft of
Rs. 5,00,000/­ further is handed over today
to her and remaining amount of Rs.3,00,000/­
is to be given to the complainant, once the
decree is passed by the Competent Court. Let
the amount of Rs.3,00,000/­ by way of Demand
Draft is submitted before the Registry by
next week. Both the matters be listed on
13th December 2018 in the first 25 matters.”

2. This is an application for seeking quashment
of the First Information Report being I­C.R. No.
142 of 2012 registered at Limbayat Police
Station, Surat for the offences punishable under
Sections 498 (A), 323, 504, 506 (2) and 114
of
the Indian Penal Code and
Sections 3, 5 and 7 of
the Dowry Prohibition Act and all other
proceedings arising therefrom including order of
conviction dated 05.10.2017 passed in Criminal
Case No. 21566 of 2012 in Special Criminal
Application No. 10656 of 2016, and order dated
30.04.2018 passed in Criminal Misc. Application
No. 278 of 2013 passed by 10th Additional Civil
Judge and Judicial Magistrate First Class, Surat
in Special Criminal Application No. 10621 of

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R/SCR.A/10656/2018 ORDER

2018.

3. Today, learned advocate Mr. Nitesh Jain
submits that, Rs.3,00,000/­ if deposited by way
of demand draft in the name of respondent no.2,
it may cause some difficulty, as decree of
divorce may not be passed within three months.
Let the demand draft be drawn in the name of
Registrar General, High Court of Gujarat, Sola,
Ahmedabad. This is to be presented within a one
week from the date of receipt of the order. On
such draft being presented, the amount shall be
fixed deposited by the Registry for the purpose
of 12 weeks, if necessary for further 12 weeks.

4. In the meantime, the parties have moved for
consent decree before the Court concerned. The
concerned family court shall authorize the person
for the transfer of amount of Rs.3,00,000/­ to
the Registry of the Family Court or directly
contact the Registry of this Court to deposit the
amount in the account of the present respondent
no.2, her bank account details be furnished
alongwith the pursis today.

5. The respondent no.2 who is present before
this Court has stated that all her belongings and
Streedhan has been received by her. She has also
received the permanent alimony, except the sum of
Rs.3,00,000/­ (rupees Three Lakhs only), nothing

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R/SCR.A/10656/2018 ORDER

now is required to be exchanged between the
parties.

6. This Court has heard learned advocates
appearing for the respective parties.

7. 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.

8. 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

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R/SCR.A/10656/2018 ORDER

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
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

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R/SCR.A/10656/2018 ORDER

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
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

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R/SCR.A/10656/2018 ORDER

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.”

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

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R/SCR.A/10656/2018 ORDER

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,
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

Page 8 of 12
R/SCR.A/10656/2018 ORDER

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. 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

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R/SCR.A/10656/2018 ORDER

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
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

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R/SCR.A/10656/2018 ORDER

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.”

10. 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.

11. For the foregoing reasons, the present
applications are allowed and First Information
Report being I­C.R. No. 142 of 2012 registered at
Limbayat Police Station, Surat and all other
proceedings arising therefrom including order of
conviction dated 05.10.2017 passed in Criminal
Case No. 21566 of 2012 and order dated 30.04.2018
passed in Criminal Misc. Application No. 278 of
2013 passed by 10th Additional Civil Judge and
Judicial Magistrate First Class, Surat are hereby
quashed and set aside alongwith all the
proceedings emanating therefrom.

12. Subject to the direction given above,

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R/SCR.A/10656/2018 ORDER

the present applications are allowed.

13. Parties shall abide by the document of the
consequent terms for filing of the divorce
petition.

These applications are allowed, accordingly.

Direct service is permitted.

(MS SONIA GOKANI, J)
pradhyuman

Page 12 of 12

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