1. Heard Mr.R.J.Goswami, learned counsel for the applicant, Ms.Moxa Thakkar, learned APP for respondent no.1-State and Mr.H.B.Champavat, learned counsel for respondent no.2-original complainant.
2. The applicant by way of this application under Section 482 of the Code of Criminal Procedure, 1973 has prayed for quashing and setting aside the First Information Report, registered as C.R.No.I-33 of 2012 with Randhikpur Police Station, Dist: Dahod, for the alleged offences under Sections 406, 420 and 423 of the Indian Penal Code.
3. As per the First Information Report, the applicant made an offer to put up mobile tower on the land of respondent no.2 and took advantage of Rs.4,03,500/- as initial deposit, however, thereafter, did not erect the mobile tower and did not return the amount.
4. Mr.R.J.Goswami, learned counsel for the applicant has pointed out in fact because of circumstances, beyond the control of the applicant business deal could not be executed. There was some misunderstanding on the part of respondent no.2-original complainant, however, parties have settled the issue. Respondent no.2-original complainant has also filed his affidavit reiterating his stand.
5. Mr.H.B.Champavat, learned counsel for Respondent no.2 states that the respondent has settled the issue with the applicant and he has already received Rs.2,10,000/-. Mr.H.B.Champavat, states that what has been stated in the affidavit is true and correct and the matter has been amicably settled with the applicant.
6. Mr.R.J.Goswami, learned counsel has further submitted that in view of the ratio laid down by the Hon’ble Supreme Court in the case of Shiji @ Pappu & Ors. Vs. Radhika & Anr. reported in AIR 2012 (SC)499 and recent decision of the Hon’ble Apex Court in the case of Gian Singh (Supra) Vs. State of Punjab & Anr., and considering the fact that the original complainant has no grievance, even though some of the offences alleged in the First Information Report are non cognizable, this Court may quash the complaint in its inherent power under Section 482 of Code of Criminal Procedure, 1973, as the trial would be futility.
7. Mr.R.J.Goswami, learned counsel for the applicant further submitted that in view of the affidavit which is also produced on record and because of the compromise between the applicant and complainant, there is no possibility of conviction and continuation of the criminal case would be futile, in fact it would amount to abuse the process of law. Mr.R.J.Goswami, learned counsel for the applicant therefore, submitted that the application may kindly be allowed as prayed for.
8. Ms.Moxa Thakkar, learned APP for the State, submitted that as per the provision of Section 320 of the Cr.P.C, powers under Section 482 of Cr.P.C may not be exercised by this Court as in the facts of this case, some of the offences are non compoundable.
Ms.Moxa Thakkar, on this ground has opposed this application.
9. Mr.H.B.Champavat, learned counsel for respondent no.2-original complainant has reiterated what has been stated in the affidavit filed in this proceedings. Mr.H.B.Champavat, further submitted that the parties have compromised the matter and now no grievance is left and it was further submitted that considering the compromise arrived at between the applicant and respondent no.2, there are no chances of conviction as rightly submitted by the learned counsel for the applicant. He further submitted that respondent no.2 has no objection if this Court exercises its inherent powers under Section 482 of Cr.P.c.
10. It would be advantages to refer to the judgment of the Shiji @ Pappu & Ors. Vs. Radhika & Anr. wherein the Hon’ble Apex Court in Para-13 has observed thus:-
“It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C. Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to numerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.
Similarly in the case of Gian Singh Vs. State of Punjab, the Hon’ble Apex Court has observed thus:-
49. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, ‘nothing in this Code’ which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
50. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court or (ii) to secure the ends of justice, is a sine qua non.
51. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorized, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.
52. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided.
53. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.
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 crimedoer 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 compoundable 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 IPC or offences of moral turpitude under special statutes, like Prevention of Corruption 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.
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 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 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 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 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.”
11. Considering the facts and circumstances of the case and ratio laid down by the Hon’ble Apex Court in the aforesaid judgments, in this case also in the light of the compromise arrived at by the applicant and respondent no.2 herein possibility of conviction is remote and continuation of trial would amount to abuse of process of law, and therefore, this is a fit case to exercise power under Section 482 of Cr.P.C. to secure the ends of justice, therefore, the present application deserves to be allowed.
12. In the facts and circumstances of the case, the FIR being C.R.No.I-33 of 2012 registered with Randhikpur Police Station, Dist: Dahod, is hereby quashed and set aside. Rule is made absolute in the above terms.
Suchit* (R.M.CHHAYA, J.)