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2021 Supreme(Guj) 446

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
Minaxiben Dilipbhai Vajeriya – Appellant
Versus
Binduben D/O Jayendrabhai Mehta – Respondent
R/Criminal Misc.Application No. 18023 of 2019 With R/Criminal Misc.Application No. 5918 of 2021 With R/Criminal Misc.Application No. 5681 of 2021
Decided on : 17-06-2021

Advocates:
Advocate Appeared:
For the Appellant : MR NITIN M AMIN
For the Respondent: MS MONALI BHATT, MR VIBHUTI NANAVATI

Point of Law: 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

Headnote:
Indian Penal Code,1908 - Sections 406, 420, 465, 467, 468, 471, 120B, 114 - Code of Criminal Procedure,1973 - Section 320, 482 – Cheating And Dishonestly Delivery of property – Person In Possession Offence - Quashing and setting aside - Whether it would be unfair or contrary to interest of justice to continue with criminal proceeding or continuation of criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between victim and wrongdoer and whether to secure ends of justice, it is appropriate that criminal case is put to an end and if answer to above question(s) is in affirmative, High Court shall be well within its jurisdiction to quash criminal proceeding - Whether incorporation of Section 307 IPC is there for sake of it or prosecution has collected sufficient evidence, which if proved, would lead to framing charge under Section 307 IPC. - Whether such injury is inflicted on vital/delegate parts of body, nature of weapons used etc. - Whether Accused was absconding and why he was absconding, how he had managed with complainant to enter into a compromise etc - Whether an FIR lodged for offences punishable under sections 307 and 34 IPC could be quashed on basis of settlement between parties –
Finding of the Court:
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 - Power conferred under Section 482 of Code to quash criminal proceedings for non-compoundable offences under Section 320 of Code can be exercised having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when parties have resolved entire dispute amongst themselves - Similarly, such power is not to be exercised for offences under special statutes like Prevention of Corruption Act or offences committed by public servants while working in that capacity are not to be quashed merely on basis of compromise between victim and offender - Settlement arrived at between parties, there exists no scope for any further proceeding in matter - Continuance of proceedings would lead to wastage of precious judicial time as there would remain no possibility of any conviction in case - Hence, Court is of opinion that this is a fit case where inherent powers of Court under Section 482 of Cr.P.C. could be exercised for securing t ends of justice –
Result: Petitions are Allowed.

ORDER :

1. Criminal Misc. Application No. 18023 of 2019 and Criminal Misc. Application No. 5918 of 2021 have been filed under Section 482 of the Code of Criminal Procedure for quashing and setting aside the first information report bearing C.R. No. I – 138 of 2019 registered at Narol Police Station under Sections 406, 420, 465, 467, 468, 471, 120B, 114 of the Indian Penal Code.

Criminal Misc. Application No. 5681 of 2021 has been filed for quashing and setting aside the first information report bearing C.R.No. I – 59 of 2016 registered at Gujarat University Police Station, Ahmedabad under Sections 406, 420, 114 of the Indian Penal Code and Criminal Case No. 34294 of 2017 pending before Metropolitan Magistrate Court No.13, Ahmedabad.

2. The amendment application has been moved to join the co-accused No.6 who is a Notary as respondent No.3. The proposed amendment is granted and the co-accused No.6 has been added as respondent No.6 in this matter.

3. Mr. Nitin Amin, learned advocate appearing on behalf of the applicant has submitted that the original defacto complainant expired, and thereafter, by way of amendment, by court's order the husband and the daughters of the complainant Binduben Shah have been joined as party respondents. Mr. Amin, learned advocate submitted that the mother of the petitioner and the defacto complainant, namely Lilavatiben Jayendrabhai Mehta had purchased the property bearing Survey No. 411, Block No.76 and Block No.77 of 135 sq.yard; on both these lands the construction was made upto plinth level. The property was purchased by a registered sale deed dated 03.11.1982 from her own funds. The block No. 78 of Survey No.411 ad-measuring 200 sq. yards was purchased from the same person by Varshaben who is a wife of petitioner's brother by registered sale deed on 03.10.1982. All the above stated three properties were in the nature of go-down constructed upto plinth level when it was purchased. It is stated that the mother of the petitioners, Lilavatiben had executed a will on 25.07.1986 in favour of her grandson minor Vikram. Lilavatiben died on 13.12.1986 and thereafter mutation entry of heirship was made in revenue record on 25.11.2005.

3.1 Mr. Nitin Amin, learned advocate stated that all the sisters in view of the will executed by deceased Lilavatiben had waived their rights in the property described in the will in favour of Vikram Vijay Mehta, the grandson of deceased Lilavatiben. He has stated that the complainant, one of the sister, Binduben Prashantbhai Shah after more than 13 years because of some internal family differences had filed an FIR on 29.07.2019.

3.2 Mr. Nitin Amin, learned advocate submits that the FIR is a counter-blast of a complaint prayed to be quashed in Criminal Misc. Application No. 5681 of 2021 registered as C.R. No. I – 59 of 2016 with Gujarat University Police Station for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. Mr. Amin, learned advocate submits that it was a family dispute; the differences have been resolved interse and all the members of the family have arrived at a mutual understanding and have decided to resolve all the grievances, and accordingly, by intervention of the family members, they all have given consent for quashing of both the FIRs.

3.3 Mr. Nitin Amin, learned advocate also refers to the notarised affidavit filed by the respondents No.1.1, 1.2 and 1.3 to state that the affirmation has been given by the heirs of the deceased complainant in Criminal Misc. Application No. 18023 of 2019 and Criminal Misc. Application No. 5918 of 2021.

4. Ms. Mousmi Nanavati, learned advocate appearing for Mr. Vibhuti Nanavati, learned advocate appearing for the respondent has contended that the parties are the members of the family and the respondents have been identified by learned advocate Mr.Vibhuti Nanavati. The respondents No.1.1 to 1.3 have appeared before this Court through video conferencing and have affirmed the affidavit produced on record and

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