Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11784 of 2021
PRAKASHBHAI BABUBHAI SHETH
Versus
STATE OF GUJARAT
Appearance:
MR VANDAN K BAXI(5863) for the Applicant(s) No. 1,2,3,4
MS PRACHITI V SHAH(9990) for the Applicant(s) No. 1,2,3,4
NANAVATI NANAVATI(1933) for the Applicant(s) No. 1,2,3,4
for the Respondent(s) No. 2
MS MONALI BHATT, ADDL./ PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/07/2021
ORAL ORDER
1. Rule. Ms. Monali Bhatt, learned Additional Public
Prosecutor and Mr. Premal Joshi, 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.II- 3036 of 2020 against the applicants
registered with Sarkhej Police Station, Dist.: Ahmedabad for
offfences punishable under sections 294(b), 506(1) and 114 of
the IPC.
3. Mr.Vandan Baxi, learned advocate for the applicants,
submitted that the matrimonial issues have been settled and
the parties have mutually separated by decree of divorce and
Page 1 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021
there remains no grievance between them. It was submitted
that the complainant and the applicants had voluntarily filed
Application under Section 13-B of the Hindu Marriage Act for
Decree of Divorce before the Family Court at Ahmedabad vide
H.M.P. No.954 of 2021 and the said Application was allowed by
order dated 12.07.2021 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. Premal Joshi, learned advocate for respondent no.2,
original complainant, identifies the complainant – Vishal Shah
before the virtual Court and concurred with the factum of
settlement of the dispute, as advanced by learned advocate
Mr. Vandan Baxi 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 his wife Manushi Shah. The respondent no.2,
original complainant, categorically stated that he has no
grievance against the applicants and that he 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
Page 2 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021
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
applicants has been amicably resolved with the intervention of
friends and relatives and the settlement has been arrived at
between the parties. The Affidavit by Respondent No.2- original
complainant is on record. It has been jointly stated that the
Family Court at Ahmedabad has allowed the application under
Section 13-B of the Hindu Marriage Act for Decree of Divorce
vide order dated 12.07.2021 in H.M.P. No.954 of 2021.
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 ServicesPage 3 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021Authorities 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.
(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.
Page 4 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021
(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.
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 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‟s 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;
Page 5 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021
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 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
Page 6 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021
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 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 flavourPage 7 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021stand 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. 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:
Page 8 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021
“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
Page 9 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021
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;
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
Page 10 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
R/CR.MA/11784/2021 ORDER DATED: 27/07/2021
the marriage between the Respondent No.2 – complainant and
his wife Manushi Shah 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.II- 3036 of 2020
against the applicants registered with Sarkhej Police Station,
Dist.: Ahmedabad and the proceedings initiated in pursuance
thereof are quashed and set aside. Rule is made absolute.
(GITA GOPI,J)
dolly
Page 11 of 11
Downloaded on : Thu Jul 29 07:54:18 IST 2021
