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Maulikbhai Bipinbhai Chandarana vs State Of Gujarat on 13 July, 2021

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R/CR.MA/16608/2019 ORDER DATED: 13/07/2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION NO. 16608 of 2019

MAULIKBHAI BIPINBHAI CHANDARANA
Versus
STATE OF GUJARAT

Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2,3
KULDEEP J MEHTA(8571) for the Respondent(s) No. 2
MR DEVRAJ K GADHAVI(11537) for the Respondent(s) No. 2
MS. MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

Date : 13/07/2021

ORAL ORDER

1. Rule. Ms. Monali Bhatt, learned Additional Public Prosecutor
and Mr. Kuldeep Mehta, learned advocate, waive service of notice of
rule on behalf of respondent Nos.1 2 respectively.

2. This application has been filed under section 482 of the Code of
Criminal Procedure for quashing and setting aside the FIR being CR.
No.I- 41 of 2019 against the applicants registered with Mahila Police
Station, Dist.: Bhuj for offfences punishable under
sections 498A, 323,
504, 506(2), 114 of the IPC and Sections 3 and 4 of Dowry Prohibition
Act.

3. Mr. Ashish Dagli, learned advocate for the applicants, submitted
that the matrimonial issues have been settled and the parties have
mutually separated by decree of divorce and there remains no
grievance between them. It was submitted that the complainant and
the applicant No.1 had voluntarily filed Application under
Section 13-B
of the Hindu Marriage Act for Decree of Divorce before the Court of
Principal Family Judge, Bhuj vide Family Suit No.37/2017 and the said

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Application was allowed by order dated 7.4.2021 and, therefore, in the
larger interest of the society, the impugned complaint may be
quashed and set aside.

3.1 Learned advocate submitted that the Court may verify the said
aspect from the original complainant, respondent no.2.

4. Mr. Kuldip Mehta, learned advocate for respondent no.2,
original complainant, concurred with the factum of settlement of the
dispute, as advanced by learned advocate Mr. Ashish Dagli appearing
for the applicants.

5. The Respondent No.2- complainant is present before the virtual
court. The virtual Court verified about the settlement arrived at
between the parties and the fact regarding dissolution of the
marriage between the Respondent No.2 – complainant and the
applicant No.1. The respondent no.2, original complainant,
categorically stated that she has no grievance against the applicants
and that she has no objection to the quashment of the impugned first
information report filed by her.

6. Ms. Monali Bhatt, learned APP submitted that any First
Information Report should be quashed in accordance with the
guidelines of the Apex Court and the parameters laid down therein.

7. This Court has heard the learned advocates on both the sides
and has perused the material on record. The respondent no.2 –
original complainant affirmed that dispute with the applicant has been
amicably resolved with the intervention of friends and relatives and
the settlement has been arrived at between the parties and all the
house-hold items as well as Permanent Alimony/ Maintenance has

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been given to the Respondent No.2. The Affidavit by Respondent
No.2- original complainant as well as the order dated 7.4.2021 passed
passed by Principal Family Judge, Bhuj vide Family Suit No.37/2017
allowing the application under
Section 13-B of the Hindu Marriage Act
for Decree of Divorce is also on record.

8. In the case of Social Action Forum for Manav Adhikar and
another V. Union of India, Ministry of Law and Justice and others,
reported in 2018 (10) SCC 443, the Apex Court made an elaborate
discussion on the scope and powers of the High Court under
Section
482 of Cr.P.C. in matrimonial matters. The observations made in
paragraphs- 15, 39 and 40 are relevant. It read thus:-

“15. On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73
of 2015 has been made to have a uniform policy of registration of FIR,
arrest and bail in cases of
Section 498-A IPC. It is worthy to note here
that during the pendency of this Writ Petition, the judgment had
been pronounced in Rajesh Sharma (supra). The Court in Rajesh
Sharma (supra) issued the following guidelines:-

“19.(i) (a) In every district one or more Family Welfare
Committees be constituted by the District Legal Services
Authorities preferably comprising of three members. The
constitution and working of such committees may be reviewed
from time to time and at least once in a year by the District and
Sessions Judge of the district who is also the Chairman of the
District Legal Services Authority.

(b) The Committees may be constituted out of para legal
volunteers/social workers/retired persons/ wives of working
officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

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(d) Every complaint under Section 498A received by the police
or the Magistrate be referred to and looked into by such
committee. Such committee may have interaction with the
parties personally or by means of telephone or any other mode
of communication including electronic communication.

(e) Report of such committee be given to the Authority by
whom the complaint is referred to it latest within one month
from the date of receipt of complaint.

(f) The committee may give its brief report about the factual
aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should
normally be effected.

(h) The report may be then considered by the Investigating
Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic
minimum training as may be considered necessary by the Legal
Services Authority from time to time.

(j) The Members of the committee may be given such
honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize
the cost fund wherever considered necessary and proper.

ii) Complaints under Section 498A and other connected
offences may be investigated only by a designated
Investigating Officer of the area. Such designations may be
made within one month from today. Such designated officer
may be required to undergo training for such duration (not less
than one week) as may be considered appropriate. The training
may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the
District and Sessions Judge or any other senior Judicial Officer
nominated by him in the district to dispose of the proceedings

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including closing of the criminal case if dispute primarily
relates to matrimonial discord;

iv) If a bail application is filed with at least one clear day ‟ss
notice to the Public Prosecutor/complainant, the same may be
decided as far as possible on the same day. Recovery of
disputed dowry items may not by itself be a ground for denial
of bail if maintenance or other rights of wife/minor children
can otherwise be protected. Needless to say that in dealing
with bail matters, individual roles, prima facie truth of the
allegations, requirement of further arrest/ custody and
interest of justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India
impounding of passports or issuance of Red Corner Notice
should not be a routine;

vi) It will be open to the District Judge or a designated senior
judicial officer nominated by the District Judge to club all
connected cases between the parties arising out of
matrimonial disputes so that a holistic view is taken by the
Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly
outstation members may not be required and the trial court
ought to grant exemption from personal appearance or permit
appearance by video conferencing without adversely affecting
progress of the trial.

viii) These directions will not apply to the offences involving
tangible physical injuries or death.”

39. In view of the aforesaid premises, the direction contained in
paragraph 19(i) as a whole is not in accord with the statutory
framework and the direction issued in paragraph 19(ii) shall be read in

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conjunction with the direction given hereinabove.

40. Direction No. 19(iii) is modified to the extent that if a settlement
is arrived at, the parties can approach the High Court under
Section
482 of the Code of Criminal Procedure and the High Court, keeping in
view the law laid down in Gian Singh (supra), shall dispose of the
same.”

8A. It is true that the offences alleged against the applicants under
the Indian Penal Code are non-compoundable 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. 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

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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

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Court shall be well within its jurisdiction to quash the criminal
proceeding.”

9. 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;

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(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

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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. 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 fact regarding dissolution of the marriage
between the Respondent No.2 – complainant and the applicant No.1.
and 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.

11. In the result, the petition is allowed. The impugned first
information report being FIR being CR. No. I- 41 of 2019 against the
applicants registered with Mahila Police Station, Dist.: Bhuj and the
proceedings initiated in pursuance thereof are quashed and set aside.
Rule is made absolute.

(GITA GOPI,J)
SAJ GEORGE

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