[ENTITY]V/S[ENTITY] R/CR.MA/7335/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7335 of 2013 [ENTITY] & 9 Applicant(s) Versus [ENTITY] & 1 Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Applicant(s) No. 1 - 10 MR [ENTITY], ADVOCATE for the Respondent(s) No. 2 MR [ENTITY], APP for the Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 16/08/2013 ORAL ORDER
1. Heard Mr.[ENTITY], learned advocate for the applicants and Mr.[ENTITY], learned advocate for respondent No.2 and Mr.[ENTITY], learned APP for respondent No.1.
2. Respondent No.2 herein lodged complaint/FIR dated 9.2.2013 with Jamnagar City 'A' Division Police Station alleging offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT] and [SECTION] of the [ACT] as well as [SECTION] of the [ACT].
3. The said complaint/FIR dated 9.2.2013 was registered as [CASE NUMBER] at Jamnagar City 'A' Division Police Station. The applicants herein are original accused in the said complaint.
3.1 As regards the allegations in the complaint, the applicants have averred that:
It is stated in the complaint that on dated 8.2.2013 at about 9.30 to 10 o'clock at night when complainant along with his uncle's son namely [ENTITY] and [ENTITY] and [ENTITY] and [ENTITY] and [ENTITY] were present near house of the complainant and were talking with each other at that point of time it is alleged in the complaint that one [ENTITY], [ENTITY], one [ENTITY], [ENTITY], [ENTITY] and [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] and other 30 to 35 unknown persons have come with weapons as mentioned in the FIR and further alleged that they have abused the complainant like anything and one [ENTITY] had fired on the complainant and caused injury on the left leg of the complainant and other accused persons who were having fire arms they have started firing and on account of that the complainant had hidden himself near his house and at that point of time, all the accused persons have thrown glass bottle towards the house of the complainant and thereafter the complainant was taken to the hospital by calling 108 ambulance by one [ENTITY]. It is further stated in the complaint that from the hospital complainant came to know that other persons who were present with the complainant have also received some injuries. It is stated in the complain that on account of prior incident dated 21.1.2013 the present incident had taken place. With these sort of allegations the complaint came to be registered with Jamnagar city A Division Police Station as [CASE NUMBER] for the offence punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT] and sec.
25(1)(c) of [ACT] and [SECTION] of [ACT]. The copy of the complaint is annexed herewith and marked as Annexure-A to this petition for the kind perusal of this Hon'ble Court.
4. It appears that subsequently, the complainant and the original accused, i.e. present applicants arrived at a settlement and the dispute between the complainant respondent and present applicants, i.e. original accused came to be settled. This aspect was mentioned before the Hon'ble Court at the time of initial/admission hearing. On this Court, the applicants have averred that:
2. It is stated that after registration of the complaint now the dispute is amicably settled between the petitioners and the respondent.2 herein and now there is no ill will or grievance amongst them. Further it is submitted that even in support of the petition filed by petitioners affidavit is also filed by respondent No.2 herein in support of the same, the copy of the affidavit of respondent No.2 complainant is annexed herewith and marked Annexure-B to this petition for the kind perusal of this Hon'ble Court.
5. Therefore, the Court recorded, in the order dated 12.8.2013, that:
Today at the time of hearing learned advocates have relied on the order dated 25.6.2009 in [CASE NUMBER], order dated 18.11.2011 in [CASE NUMBER] and the order dated 6.12.2012 passed by Hon'ble Apex Court in [CASE NUMBER] in the case between [PRECEDENT] and submitted that even in respect of alleged offence under [SECTION], if the main dispute under [ACT] is settled between the parties then the Court may exercise jurisdiction under [SECTION] of the Code and quash the FIR.
Since Mr. [ENTITY], learned APP is not available today, hearing of present petition is adjourned.
S.O. to 14.8.2013.
Ad-interim, if any, granted earlier and if it is in operation until now then the same to continue till then.
6. An affidavit dated 14.4.2013 is placed on record which is purportedly made by the complainant. In the said affidavit, the complainant has averred, inter alia, that:
I [ENTITY] (Ori. Complainant), age: 30 years, Occupation: Driving, residing at: Nr. Ghanchi Ni Khadki, Opp. Vehvaria Madresa, Nr. Kohinoor Manzil, Jamnagar file this affidavit as I have gone through the contents of the petitioner. I also reiterate the same. I have filed the FIR C.R. No.30/13 of Jam. City 'A' Div. Police Stn., [ACT] [SECTION] of [ACT] 25(1)(C) etc. I say that even whenever the proceedings are there, we used to remain present before the court together. I say that in the event if prosecution is terminated, we could not have any objection as dispute is resolved long back and we have no ill will or grievance amongst us. I say that since the dispute is resolved in the event if prosecution is allowed to terminate, we will not have any objection and as stated above even today also we all friends are together and hence I humbly urge this Hon'ble Court to consider the case for quashment of the prosecution in the interest of justice.
What is stated hereinabove is true to the best of my knowledge, information, belief and I believe the same to be true.
Solemnly affirmed at Ahmedabad this 14 day of April, 2013.
7. Learned advocate for the applicants submitted that the dispute between the complainant and original accused, i.e. present applicants is purely and personal dispute and does not involve any public law element and also does not have any public law overturns. He also submitted that the dispute is settled and learned advocate for the applicants also submitted that respondent No.2 does not want to prosecute his complaint further and has no objection if the complaint is quashed. Learned advocate for the applicants submitted that merely because the offence is not compoundable, it may not deter or restrain the Court from quashing the complaint if the Court is satisfied that the process of prosecution would be futile in view of the settlement between the parties and would cause hardships to the parties and would also be a burden on Court's time, besides the costs and expenses in terms of money.
8. Learned advocate for respondent No.2 has adopted the submission by learned advocate for the applicants and has also supported the request made by the applicants. Learned advocate for respondent No.2 also admitted that the complainant respondent and the original accused, i.e. the applicants have arrived at voluntary settlement and respondent No.2 now does not want to prosecute his complaint further and he has no objection if the complaint is quashed. Learned advocate for respondent No.2 submitted that respondent has no objection if the complaint is quashed.
9. In view of the said submissions by learned advocate for the applicants and the respondents, it is appropriate to take into account the observations made in the decisions by the Hon'ble Apex Court in the case of [PRECEDENT]; in the case of [ENTITY] vs. Central Bureau of Investigation & Anr. [(2008) 9 SCC 677. In the said case of [ENTITY] (supra), the Hon'ble Apex Court observed that:
8. This appeal has been filed against the said order of the High Court rejecting the appellant's prayer for discharge from the criminal complaint.
Appearing for the appellant, Mr. [ENTITY], learned senior advocate, submitted that the appellant was not the direct beneficiary of the loans which had been granted by the complainant-Bank, but had stood guarantee for the same in his capacity as the Managing Director of the Company to whom such loans had been advanced. Mr. [ENTITY] submitted that while the loans were said to have been advanced to the Company-Accused No. 4 between 1986 and 1989, the suit for recovery of the unpaid dues was filed by the Andhra Bank in 1992 and two years there after the complaint was lodged by the Bank on 19th September, 1994 and the charge-sheet was filed by the CBI four years later on 30th December, 1998. Thereafter, the suit filed by the Bank for the recovery of its dues was compromised by a consent decree on 12th October, 2000, and in view of clause 11 of the consent terms, apart from the said suit, all other actions, including the criminal proceedings, also stood compounded. In support of his aforesaid submissions, Mr. [ENTITY] also relied the decision rendered by this Court in the Duncans Agro case (supra) and [PRECEDENT]'s case (supra) and submitted that the High Court had erred in coming to a finding that the said two decisions had no application to the case in hand.
10. It is also relevant to take into consideration the observations by the Hon'ble Apex Court in the case of [PRECEDENT] wherein, the Hon'ble Apex Court observed that:
4. We have heard the learned counsel for the parties. Concededly a compromise deed has been executed between the parties on 25th January 2002 in which it has been inter alia recorded as under :
"Whereas for the past some time some dispute had arisen in between both the parties regarding which first party has got an FIR No. 155/2001 registered under [SECTION] of [ACT] in P.S. Kotwali Amritsar. After the registration of aforesaid criminal case a compromise has been arrived at in between both the parties. As a result of which both the parties have resolved their differences once for all. Now second party does not owe anything to the first party and first party has undertaken to co-operate with second party in every manner to get the aforesaid FIR cancelled/ quashed from appropriate Forum. Furthermore first party has no objection if the bail of second party be accepted. Rather first party shall co-operate with second party in every manner to secure bail for him. In view of the compromise arrived at in between the parties entire differences and tensions those had arisen in between both the parties stands resolved and both the parties have undertaken not to file any proceedings either civil or criminal or any other such like proceedings against one another in any court of law at Amritsar or any other place within or outside India. This compromise is hereby executed in between both the parties in the presence of marginal witnesses on this 25th day of January 2002 at Amritsar."
5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11th January 2004, passed away and the possibility of a conviction being recorded has thus to be ruled out. We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law. We see from the impugned order that the learned Judge has confused a compounding of an offence with the quashing of proceedings. The outer limit of Rs.250/- which has led to the dismissal of the application is an irrelevant factor in the later case. We accordingly allow the appeal and in the peculiar facts of the case, direct that FIR No. 155 dated 17th November 2001 P.S. Kotwali, Amritsar and all proceedings connected therewith shall be deemed to be quashed.
11. Thereafter, recently in the decision in the case of [PRECEDENT], wherein the Hon'ble Apex Court observed that:
48. The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under [SECTION] of the Code.
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 well-being of society and it is not safe to leave the crime-doer 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 compoudable 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 [ACT] or offences of moral turpitude under special statutes, like [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.
[ENTITY], [ENTITY], [ENTITY] and [ENTITY] do illustrate the principle that High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under [SECTION] of the Code and [SECTION] does not limit or affect the powers of the High Court under [SECTION]. Can it be said that by quashing criminal proceedings in [ENTITY], [ENTITY], [ENTITY] and [ENTITY], this Court has compounded the noncompoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under [SECTION] and quashing of a criminal case by the High Court in exercise of inherent power under [SECTION]. The two powers are distinct and different although ultimate consequence may be same viz., acquittal of the accused or dismissal of indictment.
56. We find no incongruity in the above principle of law and the decisions of this Court in [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] (Smt.). and [ENTITY]. The principle propounded in [ENTITY] that the inherent jurisdiction of the High Court cannot be invoked to override express bar provided in law is by now well settled. In Dharampa, the Court observed the same thing that the inherent powers under [SECTION] of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Similar statement of law is made in [ENTITY]. In [ENTITY], the accused was alleged to have committed an offence punishable under [SECTION], [ACT] and with reference to [SECTION] of the Code, it was held that the offence punishable under [SECTION] [ACT] was not compoundable offence and there was express bar in [SECTION] that no offence shall be compounded if it is not compoundable under the Code. In [ENTITY] (Smt.) although the accused had paid the entire due amount as per the settlement with the bank in the matter of recovery before the Debts Recovery Tribunal, the accused was being proceeded with for commission of offences under [SECTION] of the [ACT] along with the bank officers who were being prosecuted under [SECTION] of [ACT]. The Court refused to quash the charge against the accused by holding that the Court would not quash a case involving a crime against the society when a prima facie case has been made out against the accused for framing the charge. [ENTITY] was again a case where the accused persons were charged of having committed offences under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION], [ACT] and the allegations were that the accused secured the credit facilities by submitting forged property documents as collaterals and utilized such facilities in a dishonest and fraudulent manner by opening letters of credit in respect of foreign supplies of goods, without actually bringing any goods but inducing the bank to negotiate the letters of credit in favour of foreign suppliers and also by misusing the cash-credit facility. The Court was alive to the reference made in one of the present matters and also the decisions in [ENTITY], [ENTITY] and [ENTITY] and it was held that [ENTITY], and [ENTITY] dealt with different factual situation as the dispute involved had overtures of a civil dispute but the case under consideration in [ENTITY] was more on the criminal intent than on a civil aspect. The decision in [ENTITY] supports the view that the criminal matters involving overtures of a civil dispute stand on a different footing.
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] 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 [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 pre-dominatingly 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.
12. Having regard to the fact that (a) the dispute between the parties is of private and personal nature; (b) the complainant has admitted that the complainant and original accused, i.e. the applicants have voluntarily settled the dispute; (c) the complainant-respondent No.2 has also admitted that he has filed affidavit dated 14.4.2013; and
(d) the complainant-respondent No.2 has also admitted that he does not want to prosecute the complaint further qua the applicants, it appears that any fruitful purpose will not be served in continuing the prosecution of the complaint dated 9.2.2013 being [CASE NUMBER] registered with Jamnagar City 'A' Division Police Station, Jamnagar, qua the applicants.
13. Applying the principles laid down in the aforesaid decisions to the facts of the present case, it is apparent that in view of the compromise arrived at between the parties, permitting the prosecution to continue, would be an exercise in futility. Besides in view of the affidavit filed by respondent No.2 complainant, chances of an ultimate conviction are also bleak. In the circumstances, the interest of justice would be best served if the first information report is quashed. This is, therefore, a fit case for exercising powers under [SECTION] of the Code to prevent abuse of the process of Court. The complaint deserves to be quashed qua the applicant.
14. Hence, below mentioned order is passed.
15. The relief as prayed for in paragraph 11(B) is granted and the complaint/FIR being [CASE NUMBER] registered with Jamnagar City 'A' Division Police Station, Jamnagar is quashed and set aside only qua the applicants, i.e. original accused. Rule is made absolute to the aforesaid extent only qua the applicants, i.e. original accused. No order as to costs.
The application is allowed to the aforesaid extent qua the applicants.
Direct Service is permitted.
([ENTITY], J.) Bharat Page of 10