Yeshaben Sureshbhai Joshi vs State of Gujarat and Another

Harsha Devani, J.—Rule. Mr. Himanshu Patel, learned Additional Public Prosecutor waives service of notice of rule on behalf of the first respondent and Ms. Megha Jani, learned advocate waives service of notice of rule on behalf of the second respondent. Having regard to the facts of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today. By this petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner seeks quashing of the judgment and order dated 17th January, 2011 passed by the learned Metropolitan Magistrate, Court No. 13, Ahmedabad below Discharge Application Exh. 22 in Criminal Case No. 2621/2007 as well as the judgment and order dated 16th December, 2011 passed in Criminal Revision Application No. 150/2011 by the learned Additional City Sessions Judge, Ahmedabad and seeks discharge from the offences levelled against the petitioner in the chargesheet in the said criminal case including supplementary chargesheet being Criminal Case No. 4090/2008 pending in the court of the learned Metropolitan Magistrate, Court No. 13, Ahmedabad. Alternatively, the petitioner has prayed to quash and set aside the chargesheet in Criminal Case No. 2621/2007 including supplementary chargesheet being Criminal Case No. 4090/2008 pending in the court of the learned Metropolitan Magistrate, Court No. 13, Ahmedabad.

The second respondent - Rasik Dhanjibhai Gandhi lodged a first information report being Navrangpura Police Station I-C.R. No. 184/2007 against the petitioner herein alleging commission of the offences punishable under sections 406, 420, 467, 468, 471, 477A and 114 of the Indian Penal Code. It appears that the Investigating Officer upon conclusion of the investigation submitted a chargesheet pursuant to which Criminal Case No. 2621/2007 came to be registered against the petitioner. Upon submission of supplementary chargesheet, another Criminal Case No. 4090/2008 was also registered which is pending in the court of the learned Metropolitan Magistrate, Court No. 13, Ahmedabad. It appears that the petitioner filed an application (Exhibit 22) seeking discharge before the learned Metropolitan Magistrate which came to be rejected by an order dated 17th January, 2011. Being aggrieved, the petitioner went in revision before the City Sessions Court, Ahmedabad in Criminal Revision Application No. 150/2011 which came to be rejected by the impugned order dated 16th December, 2011.

On behalf of the second respondent, an affidavit dated 21st November, 2013 has been tendered which has been taken on record, wherein it has been stated that an amicable settlement has been arrived at between him and the accused namely, Sureshbhai Mohanlal Joshi, Dakshaben Sureshbhai Joshi and Yeshaben Sureshbhai Joshi and that he has no grievance against the said persons and, therefore, does not want to proceed further with the impugned first information report. It is also stated that he has executed a Memorandum of Understanding/Settlement dated 7th August, 2013 with the said persons i.e. between M/s. Cheross India and Mrs. Mandikiniben Rasikbhai Gandhi, both represented by him on one side and M/s. Daysun Air System and M/s. Yash Enterprise, both represented by Sureshbhai Mohanlal Joshi on the other side. A copy of the said MOU has been annexed alongwith the affidavit. It is also averred that in view of the MOU/Settlement, he has received all amounts as agreed between the parties in terms of the averments made in the Memorandum of Understanding as well as the receipts signed and accepted by him and all his grievances had been redressed and he does not want to proceed further with the impugned first information report. It has been categorically stated that he has no objection if the impugned first information report and all proceedings pursuant thereto are quashed in exercise of powers u/s 482 of the Code.

Mr. Bhadrish Raju, learned advocate for the petitioner has submitted that in the light of the settlement arrived at between the parties, the second respondent is no longer desirous of prosecuting the petitioner. Under the circumstances, the first information report as well as all proceedings pursuant thereto are required to be quashed in the interest of justice.

Ms. Megha Jani, learned advocate for the second respondent has placed reliance upon the affidavit filed by the second respondent to submit that the matter having been amicably settled between the parties, the second respondent is no longer desirous of prosecuting the petitioner and as such, there is no objection if the first information report and all proceedings pursuant thereto are quashed.

This court has also heard Mr. Himanshu Patel, learned Additional Public Prosecutor for the first respondent.

Before adverting to the merits of the case, it may be germane to refer to the decision of the Supreme Court in Gian Singh Vs. State of Punjab and Another, wherein the Supreme Court after considering its earlier decisions in this regard held thus:

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 u/s 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 victim�s 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 predominantly 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 Court shall be well within its jurisdiction to quash the criminal proceeding.

In Madan Mohan Abbot Vs. State of Punjab, the Supreme Court was dealing with a case whereby the High Court had declined the prayer for quashing of the prosecution for the offences punishable under Sections 379, 406, 409, 418, 506 /34 IPC despite a compromise entered into between the complainant and the accused. The High Court had taken the view that since the offence punishable u/s 406 was not compoundable, the settlement between the parties could not be recognised nor the pending proceedings quashed. The court summed up the approach to be adopted in such cases in the following words:

We need to emphasise 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 utilised 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.

A perusal of the allegations made in the first information report reveals that the dispute involved is in the nature of a private and personal dispute pertaining to partnership. Subsequently, the parties have amicably sorted out the differences and a Memorandum of Understanding has been executed between them. In terms of the Memorandum of Understanding, the second respondent has received the amounts as agreed between the parties and is, therefore, no longer interested in prosecuting the petitioner. In these premises, no fruitful purpose would be served if the proceedings are permitted to continue. Besides, in the light of the settlement arrived at between the parties, there is hardly any chances of an ultimate conviction. This is, therefore, a fit case for exercise of powers u/s 482 of the Code. For the foregoing reasons, the petition succeeds and is accordingly allowed. The first information report registered vide Navrangpura Police Station I-C.R. No. 184/2007 as well as Criminal Case No. 2621/2007 and 4090/2008 pending in the court of the learned Metropolitan Magistrate, Court No. 13, Ahmedabad are hereby quashed and set aside qua the petitioner. Rule is made absolute accordingly.