CR.MA/11871/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 11871 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================== SANDEEP VIPINCHANDRA SHAH & 1 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================== Appearance : MR VIRAT G POPAT for petitioners MR IM PANDYA, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MS HETVI H SANCHETI for Respondent(s) : 2, ========================================== CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 12/02/2008 ORAL JUDGMENT 1. Rule. Mr.I.M.Pandya, learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent No.1 – State of Gujarat and Ms.Hetvi Sancheti, CR.MA/11871/2007 2/7 JUDGMENT learned advocate waives service of notice of rule on behalf of respondent No.2. 2. Having regard to the facts of the case and with the consent of the learned advocates for the parties, the matter is taken up for final hearing today. 3. By this petition under Section 482 of the Code of Criminal Procedure, 1973 (the Code), the petitioners have prayed to quash and set aside the Charge framed against the petitioners vide order dated 27th March, 2006 passed below Exhibit 4 in connection with Sessions Case No.27 of 2006, now numbered as Criminal Case No.689 of 2006, and also the further proceedings thereof, pending in the Court of the learned Metropolitan Magistrate, Court No.5, Ahmedabad, qua the present petitioners. 4. The facts of the case stated briefly are that the respondent No.2 herein had lodged the First Information Report in question being Navrangpura Police Station I – C.R. No.59/2001 against the present petitioners for the offences under Sections 304, 418, 420 read with Section 120-B of the Indian Penal Code and Section 42 of the Gujarat Ownership of Flats Act, 1973 for the contravention of Sections 3 and 7 of the Gujarat Ownership of Flats Act, 1973. The chargesheet was submitted in connection with the aforesaid First Information Report on 11th May, 2001. The petitioners thereafter moved an application for discharge below Exhibit 3 before the learned City Sessions Judge, Ahmedabad, which came to be rejected vide order dated CR.MA/11871/2007 3/7 JUDGMENT 27th March, 2006. Moreover, vide the impugned order dated 27th March, 2006 passed below Exhibit 4, the learned Additional City Sessions Judge has framed the charges against the petitioners under Sections 304A, 336, 337, 338, 418 of the Indian Penal Code, 1860, and under Sections 3 and 7 read with Sections 42, 43 of the Gujarat Ownership of Flats Act, 1973. Being aggrieved, the petitioners have moved the present petition seeking the reliefs noted hereinabove. 5. Heard Mr.Virat G.Popat, learned advocate for the petitioners, Mr.I.M.Pandya, learned Additional Public Prosecutor for the respondent No.1 – State of Gujarat and Ms.Hetvi Sancheti, learned advocate for respondent No.2. 6. On the merits of the case, Mr.Popat, learned advocate for the petitioners has submitted that even if the allegations mentioned in the First Information Report and the papers of the chargesheet are accepted to be true in their entirety, no offence, much less the offences punishable under Sections 304A, 336, 337, 338, 418 of the Indian Penal Code, 1860, and under Sections 3 and 7 read with Sections 42, 43 of the Gujarat Ownership of Flats Act, 1973, are made out against the petitioners. It is further submitted that, neither in the First Information Report nor in the chargesheet papers, is it averred that, right from the very beginning of the transaction, the petitioners had the intention to cheat or defraud the complainant, hence, the charges under Section 418 of the IPC are required to be quashed. It was submitted that there is no material to show that the building had collapsed on account of poor CR.MA/11871/2007 4/7 JUDGMENT quality of the material used. It was urged that the building collapsed because of earthquake which is an act of God and no overt act was attributed to the petitioners, hence, the charges under Sections 336, 337 and 338 of the IPC are not made out against the petitioners. Learned advocate has made several submissions on the merits of the case, however, in view of what is stated hereinafter, it is not necessary to re-produce the same or to deal with the same at length. 7. In Ground (B) of Paragraph No.3 of the petition, it has been stated that, after the earthquake, the apartment is reconstructed and the complainant and the other occupants are residing in the said apartments. Not only that, the complainant and other occupants who are cited as witnesses in the chargesheet would not have any objection if the charges framed against the petitioners are quashed. That the complainant and the other witnesses have sworn affidavits to the effect that they are not willing to continue with the trial against the petitioners and thus, the trial against the petitioners would be an abuse of process of law and would not serve any fruitful purpose. It is, accordingly, urged that the First Information Report in question be quashed, in the interest of justice. 8. Ms.Hetvi Sancheti, learned advocate for the respondent No.2 – original complainant has reiterated the say of the learned advocate for the petitioners that the complainant and other witnesses are not willing to continue with the trial against the petitioners. The learned advocate for the CR.MA/11871/2007 5/7 JUDGMENT petitioners as well as respondent No.2 have jointly submitted that the First Information Report in question be quashed, in the interest of justice. 9. This Court has also heard Mr.I.M.Pandya, learned Additional Public Prosecutor for the respondent No.1 – State of Gujarat. 10.This Court has considered the submissions advanced by the learned advocates for the parties and has perused the material on record. Apart from the averments made in Ground (B) of Paragraph No.3 of the petition as noted hereinabove, the petitioners have annexed the affidavits of the complainant as well as other witnesses, along with the present petition. In paragraph No.9 of the affidavit, it is specifically averred that the complaint against the present petitioners as well as the statements made during the course of investigation are on account of misunderstanding and due to emotional reasons, which have been made in haste. It is stated that the said allegations are not true and are excessive in nature and have not been recorded as stated by them. According to the respondent No.2, the petitioners are innocent and the proceedings have wrongly been initiated against them. Similar affidavits have been filed by several other witnesses. 11.The Supreme Court in the case of State of Karnataka v. L.Muniswamy and others, (1977)2 SCC 699, while considering the scope of inherent power of quashing under Section 482 of the Code, held that, in the exercise CR.MA/11871/2007 6/7 JUDGMENT of this wholesome power, the High Court is entitled to quash the proceedings if it comes to the conclusion that the ends of justice so require. 12.Applying the principles laid down in the decision cited hereinabove to the facts of the present case, considering the fact that the complainant has stated on oath that the complaint had been lodged on the spur of the moment on account of emotions and in haste, it is apparent that the complainant himself no longer supports the version stated by him in the First Information Report. The other supporting witnesses also have made statements on oath along similar lines. In the circumstances, even if the trial is permitted to continue, the same cannot result in conviction as the main witnesses would not support the case of the prosecution. Besides, when the parties have amicably settled the matter and the grievances of the complainant and other affected persons no longer survive, continuation of the proceedings would amount to an abuse of process of law. 13.In the circumstances, this is a fit case for exercise of powers under Section 482 of the code. 14.In the result, the petition succeeds and is, accordingly, allowed. The Charge framed against the petitioners vide order dated 27th March, 2006 passed below Exhibit 4 in connection with the Sessions Case No.27 of 2006, now numbered as Criminal Case No.689 of 2006, and also the further proceedings thereof, pending in the Court of the learned Metropolitan Magistrate, Court No.5, Ahmedabad, CR.MA/11871/2007 7/7 JUDGMENT qua the present petitioners, are hereby quashed. Rule is made absolute accordingly. [HARSHA DEVANI, J.] parmar*