Gujarat High CourtDashrathbhai Bholidas Patel vs State Of Gujarat on 2 May, 2023Author:Samir J. DaveBench:Samir J. DaveR/CR.MA/5593/2023                                  JUDGMENT DATED: 02/05/2023\n\n\n\n\n             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n              R/CRIMINAL MISC.APPLICATION NO. 5593 of 2023\n\n\nFOR APPROVAL AND SIGNATURE:\n\nHONOURABLE MR. JUSTICE SAMIR J. DAVE                            SD/-\n\n==========================================================\n\n1     Whether Reporters of Local Papers may be allowed                    YES\n      to see the judgment ?\n\n2     To be referred to the Reporter or not ?                             YES\n\n3     Whether their Lordships wish to see the fair copy                    NO\n      of the judgment ?\n\n4     Whether this case involves a substantial question                    NO\n      of law as to the interpretation of the Constitution\n      of India or any order made thereunder ?\n\n==========================================================\n                        DASHRATHBHAI BHOLIDAS PATEL\n                                   Versus\n                             STATE OF GUJARAT\n==========================================================\nAppearance:\nMR SHALIN MEHTA, SENIOR COUNSEL for MR HEMAL P SHAH(3948) for\nthe Applicant(s) No. 1\nNIMIT Y SHUKLA(8338) for the Applicant(s) No. 1\nGAURAV K LAKHWANI(9520) for the Respondent(s) No. 2\nMR MEET P THANKI(13015) for the Respondent(s) No. 2\nMR MITESH AMIN, PUBLIC PROSECUTOR with MS M. H. BHATT, APP for\nthe Respondent(s) No. 1\n==========================================================\n\n    CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE\n\n                                 Date : 02/05/2023\n                                 ORAL JUDGMENT1. Considering the issue involved in the present\n      application          and     with      consent    of     the       learned\n      advocates appearing for the respective partiesPage 1 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                                           JUDGMENT DATED: 02/05/2023\n\n\n\n\n   as      well        as        considering          the      fact        that        the\n   dispute amongst the applicant and complainant\n   has       been       resolved         amicably,            this       matter          is\n   taken up for final disposal forthwith.2. By way of this petition filed underArticle 226of the Constitution of India read withSection\n   482of       the     Code     of      Criminal         Procedure             (for\n   short,            "theCr.P.C."),           the      petitioner              has\n   prayed            to quash        and      set aside           the      complaint\n   being         FIR        No.11192011220374                registered              with\n   Bopal Police Station, District: Ahmedabad for\n   the      offences             punishable          u/s.     406,       419,        420,\n   465, 467, 468, 471, 474, 120(B) ofIPCand all\n   other consequential proceedings.3. Learned            counsel        for      the      respective              parties\n   submitted that during pendency of the criminal\n   proceedings, the parties have amicably settled\n   their        issue        by way        of mutual            settlement             and\n   pursuant            to        understanding              arrived         at,        the\n   Complainant has accordingly filed an affidavit,\n   which         is         on     record.           The     complainant               has\n   categorically                  stated      in      the      affidavit             that\n   dispute            is         amicably       resolved           and        has        no\n   objections               if     the      present          proceedings               are\n   quashed            and    there       is    no      surviving           grievance\n   between them.Page 2 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                                         JUDGMENT DATED: 02/05/20234. Having            heard           learned            advocate           for         the\n   petitioners and learned APP for the respondent\n   State,            it     appears           that       present           applicant\n   accused had clearly played an active role in\n   the commission of serious offence of forgery,\n   used such forged documents as genuine to grab\n   the       land         of     the        original        complainant.                 It\n   appears that the present applicant accused and\n   his       brother           who     is     in       judicial        custody           in\n   connection             with       the      present      offence,             are      in\n   habit of grabbing the lands by such and similar\n   modus operandi and other criminal complaints of\n   forgery have been lodged against the present\n   applicant. It also appears that the applicant\n   accused is habitual offender and he is involved\n   in total 7 offences including the present and\n   he is shown as absconder since the charge-sheet\n   is filed           qua       other       accused.        It     also appears\n   that        the        conduct        of      the      applicant            of      not\n   cooperating                 with      the          investigating              agency\n   though there are conditional bail orders passed\n   by the Hon'ble Apex Court as well as by this\n   Hon'ble            Court.          The        present        applicant              was\n   considered on regular bail by the Hon'ble Apex\n   Court vide order dated 26.08.2022 in Criminal\n   Appeal No.1350 of 2022 in connection of offence\n   registered with the Vastrapur Police Station,\n   however,           the      State        of        Gujarat    had       filed         anPage 3 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                                            JUDGMENT DATED: 02/05/2023\n\n\n\n\n   application              for    cancellation               of     bail         of     the\n   applicant accused in connection with C.R. NO.I-\n   11191020201493 registered with Vastrapur Police\n   Station            and    the      same          is    pending             for        its\n   adjudication before this Court.5. This Court notices that this request is made\n   for exercise of inherent powers undersection\n   482of       the     Cr.P.C.,          which          are        very         wide\n   amplitude.               These      inherent               powers            can        be\n   exercised either to sure the ends of justice or\n   to      prevent          the     abuse           of    process             of       law.However, it would dependent on the facts and\n   circumstances of each case and no category is\n   prescribed by the Court for the same. What is\n   required            to be considered                  is     the nature               and\n   gravity            of    the   offence.           Heinous           and       serious\n   offences, such offence of rape or dacoity or\n   murder            or     the     offence          leading            to       serious\n   injuries            etc. may       not be             considered             for the\n   purpose of exercise of inherent powers.6. Ordinarily, it is expected that the category of\n   commercial offences or disputes of mercantile\n   and of civil nature or matrimonial disputes or\n   disputes of partnership firms etc., the Court\n   may consider to exercise these powers, when the\n   parties have chosen to settle the disputes. The\n   Court             also    need       to          record,          whether             thePage 4 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                                      JUDGMENT DATED: 02/05/2023\n\n\n\n\n   continuation of the criminal prosecution would\n   cause extreme prejudice to the accused or would\n   cause         him        injustice,            if   not      allowed            the\n   quashment, even after the parties have settled\n   all their disputes. These powers are required\n   to     be     exercised         sparingly,          as     stated         above.\n   Since,            the    offence     against         the      society,            it\n   cannot be said to be a private FIR between the\n   parties.7.In a series of decisions, the Apex Court has\n   explained               the   contours         of   the      power          underSection 482Cr.P.C. In the case ofPrabhatbhai\n   Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors.\n   Vs. State of Gujarat and Anr., (2017) 9 SCC\n   641, the Hon'ble Supreme Court has observed as\n   under:"10. On the other hand, learned counsel appearing on behalf of the\n    state has supported the judgment of the High Court. Learned\n    counsel emphasized the circumstances which weighed with the\n    High Court, including (i) the seriousness of the allegations; (ii)\n    the conduct of the appellants who were absconding; and (iii) the\n    criminal antecedents of the appellants. Hence, it was urged that\n    the appellants were not entitled to the relief of quashing the FIR\n    merely because they had entered into a settlement with the\n    complainant.11.Section 482is prefaced with an overriding provision. The\n     statute saves the inherent power of the High Court, as a superior\n     court, to make such orders as are necessary (i) to prevent an\n     abuse of the process of any court; or (ii) otherwise to secure the\n     ends of justice. In Gian Singh (supra) a bench of three learnedPage 5 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                               JUDGMENT DATED: 02/05/2023\n\n\n\n\n    Judges of this Court adverted to the body of precedent on the\n    subject and laid down guiding principles which the High Court\n    should consider in determining as to whether to quash an FIR or\n    complaint in the exercise of the inherent jurisdiction. The\n    considerations which must weigh with the High Court are:"61...the power of the High Court in quashing a criminal\n            proceeding or FIR or complaint in exercise of its inherent\n            jurisdiction is distinct and different from the power given\n            to a criminal court for compounding the offences underSection 320of the Code. Inherent power is of wide\n            plenitude with no statutory limitation but it has to be\n            exercised in accord with the guideline engrafted in such\n            power viz.: (i) to secure the ends of justice, or (ii) to\n            prevent abuse of the process of any court. In what cases\n            power to quash the criminal proceeding or complaint or\n            FIR may be exercised where the offender and the victim\n            have settled their dispute would depend on the facts and\n            circumstances of each case and no category can be\n            prescribed. However, before exercise of such power, the\n            High Court must have due regard to the nature and\n            gravity of the crime. Heinous and serious offences of\n            mental depravity or offences like murder, rape, dacoity,\n            etc. cannot be fittingly quashed even though the victim or\n            victim s family and the offender have settled the dispute.\n            Such offences are not private in nature and have a serious\n            impact on society. Similarly, any compromise between the\n            victim and the offender in relation to the offences under\n            special statutes like thePrevention of Corruption Actor\n            the offences committed by public servants while working\n            in that capacity, etc; cannot provide for any basis for\n            quashing criminal proceedings involving such offences.\n            But the criminal cases having overwhelmingly and\n            predominatingly civil flavour stand on a different footing\n            for the purposes of quashing, particularly the offences\n            arising from commercial, financial, mercantile, civil,\n            partnership or such like transactions or the offences\n            arising out of matrimony relating to dowry, etc. or the\n            family disputes where the wrong is basically private or\n            personal in nature and the parties have resolved their\n            entire dispute. In this category of cases, the High Court\n            may quash the criminal proceedings if in its view, because\n            of the compromise between the offender and the victim,\n            the possibility of conviction is remote and bleak and\n            continuation of the criminal case would put the accused\n            to great oppression and prejudice and extreme injusticePage 6 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                               JUDGMENT DATED: 02/05/2023\n\n\n\n\n            would be caused to him by not quashing the criminal case\n            despite full and complete settlement and compromise with\n            the victim. In other words, the High Court must consider\n            whether it would be unfair or contrary to the interest of\n            justice to continue with the criminal proceeding or\n            continuation of the criminal proceeding would tantamount\n            to abuse of process of law despite settlement and\n            compromise between the victim and the wrongdoer and\n            whether to secure the ends of justice, it is appropriate\n            that the criminal case is put to an end and if the answer\n            to the above question(s) is in the affirmative, the High\n            Court shall be well within its jurisdiction to quash the\n            criminal proceeding.12. In Narinder Singh (supra), Dr Justice A K Sikri, speaking for a\n    bench of two learned Judges of this Court observed that in\n    respect of offences against society, it is the duty of the state to\n    punish the offender. In consequence, deterrence provides a\n    rationale for punishing the offender. Hence, even when there is a\n    settlement, the view of the offender and victim will not prevail\n    since it is in the interest of society that the offender should be\n    punished to deter others from committing a similar crime. On the\n    other hand, there may be offences falling in the category where\n    the correctional objective of criminal law would have to be given\n    more weight age than the theory of deterrence. In such a case, the\n    court may be of the opinion that a settlement between the parties\n    would lead to better relations between them and would resolve a\n    festering private dispute. The court observed that the timing of a\n    settlement is of significance in determining whether the\n    jurisdiction under Section 482 should be exercised:"29.7 Those cases where the settlement is arrived at\n            immediately after the alleged commission of offence and\n            the matter is still under investigation, the High Court may\n            be liberal in accepting the settlement to quash the\n            criminal proceedings/investigation. It is because of the\n            reason that at this stage the investigation is still on and\n            even the charge-sheet has not been filed. Likewise, those\n            cases where the charge is framed but the evidence is yet\n            to start or the evidence is still at infancy stage, the High\n            Court can show benevolence in exercising its powers\n            favourably, but after prima facie assessment of the\n            circumstances/material mentioned above. On the other\n            hand, where the prosecution evidence is almost complete\n            or after the conclusion of the evidence the matter is at the\n            stage of argument, normally the High Court should refrainPage 7 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                              JUDGMENT DATED: 02/05/2023\n\n\n\n\n            from exercising its power under Section 482 of the Code,\n            as in such cases the trial court would be in a position to\n            decide the case finally on merits\n\n\n    This Court held, while dealing with an offence under Section 307\n    of the Penal Code that the following circumstances had weighed\n    with it in quashing the First Information Report:"33.We have gone through the FIR as well which was\n            recorded    on    the   basis   of    statement   of   the\n            complainant/victim. It gives an indication that the\n            complainant was attacked allegedly by the accused\n            persons because of some previous dispute between the\n            parties, though nature of dispute etc. is not stated in\n            detail. However, a very pertinent statement appears on\n            record viz., "respectable persons have been trying for a\n            compromise up till now, which could not be finalized".This becomes an important aspect. It appears that there\n            have been some disputes which led to the aforesaid\n            purported attack by the accused on the complainant. In\n            this context when we find that the elders of the village,\n            including Sarpanch, intervened in the matter and the\n            parties have not only buried their hatchet but have\n            decided to live peacefully in future, this becomes an\n            important consideration. The evidence is yet to be led in\n            the Court. It has not even started. In view of compromise\n            between parties, there is a minimal chance of the\n            witnesses coming forward in support of the prosecution\n            case. Even though nature of injuries can still be\n            established by producing the doctor as witness who\n            conducted medical examination, it may become difficult to\n            prove as to who caused these injuries. The chances of\n            conviction, therefore, appear to be remote. It would,\n            therefore, be unnecessary to drag these proceedings...13.InState of Maharashtra v Vikram Anantrai Doshi, (2014) 15\n    SCC 29, a bench of two learned Judges of this Court explained the\n    earlier decisions and the principles which must govern in\n    deciding whether a criminal proceeding involving a non-\n    compoundable offence should be quashed. In that case, the\n    respondents were alleged to have obtained Letters of Credit from\n    a bank in favour of fictitious entities. The charge-sheet involved\n    offences under Sections 406, 420, 467, 468, and 471 read with\n    Section 120-B of the Penal Code. Bogus beneficiary companiesPage 8 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                                JUDGMENT DATED: 02/05/2023\n\n\n\n\n    were alleged to have got them discounted by attaching fabricated\n    bills. Mr Justice Dipak Misra (as the learned Chief Justice then\n    was) emphasised that the case involved an allegation of forgery;\n    hence the court was not dealing with a simple case where the\n    accused had borrowed money from a bank, to divert it\n    elsewhere . The court held that the manner in which Letters of\n    Credit were issued and funds were siphoned off had a\n    foundation in criminal law:"26. .... availing of money from a nationalized bank in the\n            manner, as alleged by the investigating agency, vividly\n            exposits fiscal impurity and, in a way, financial fraud. The\n            modus operandi as narrated in the charge-sheet cannot\n            be put in the compartment of an individual or personal\n            wrong. It is a social wrong and it has immense societal\n            impact. It is an accepted principle of handling of finance\n            that whenever there is manipulation and cleverly\n            conceived contrivance to avail of these kind of benefits it\n            cannot be regarded as a case having overwhelmingly and\n            predominatingly of civil character. The ultimate victim is\n            the collective. It creates a hazard in the financial interest\n            of the society. The gravity of the offence creates a dent in\n            the economic spine of the nation."The judgment of the High Court quashing the criminal\n    proceedings was hence set aside by this Court.14. The same principle was followed inCentral Bureau of\n    Investigation v Maninder Singh, (2016) 1 SCC 389 by a bench of\n    two learned Judges of this Court. In that case, the High Court\n    had, in the exercise of its inherent power under Section 482\n    quashed proceedings under Sections 420, 467, 468 and 471 read\n    with Section 120-B of the Penal Code. While allowing the appeal\n    filed by the Central Bureau of Investigation Mr Justice Dipak\n    Misra (as the learned Chief Justice then was) observed that the\n    case involved allegations of forgery of documents to embezzle the\n    funds of the bank. In such a situation, the fact that the dispute\n    had been settled with the bank would not justify a recourse to the\n    power under Section 482:"17. ... In economic offences Court must not only keep in\n            view that money has been paid to the bank which has been\n            defrauded but also the society at large. It is not a case of\n            simple assault or a theft of a trivial amount; but the offence\n            with which we are concerned is well planned and was\n            committed with a deliberate design with an eye of personalPage 9 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                               JUDGMENT DATED: 02/05/2023\n\n\n\n\n            profit regardless of consequence to the society at large. To\n            quash the proceeding merely on the ground that the\n            accused has settled the amount with the bank would be a\n            misplaced sympathy. If the prosecution against the\n            economic offenders are not allowed to continue, the entire\n            community is aggrieved."15. In a subsequent decision in State of Tamil Nadu v R Vasanthi\n    Stanley, (2016)1 SCC 376, the court rejected the submission that\n    the first respondent was a woman "who was following the\n    command of her husband and had signed certain documents\n    without being aware of the nature of the fraud which was being\n    perpetrated on the bank. Rejecting the submission, this Court\n    held that:"14.... Lack of awareness, knowledge or intent is neither to\n            be considered nor accepted in economic offences. The\n            submission assiduously presented on gender leaves us\n            unimpressed. An offence under the criminal law is an\n            offence and it does not depend upon the gender of an\n            accused. True it is, there are certain provisions inCode of\n            Criminal Procedurerelating to exercise of jurisdiction\n            Under Section 437, etc. therein but that altogether\n            pertains to a different sphere. A person committing a\n            murder or getting involved in a financial scam or forgery\n            of documents, cannot claim discharge or acquittal on the\n            ground of her gender as that is neither constitutionally\n            nor statutorily a valid argument. The offence is gender\n            neutral in this case. We say no more on this score15. .... A grave criminal offence or serious economic\n            offence or for that matter the offence that has the\n            potentiality to create a dent in the financial health of the\n            institutions, is not to be quashed on the ground that there\n            is delay in trial or the principle that when the matter has\n            been settled it should be quashed to avoid the load on the\n            system."16. The broad principles which emerge from the precedents on\n    the subject, may be summarised in the following propositions :(i) Section 482 preserves the inherent powers of the High\n            Court to prevent an abuse of the process of any court or to\n            secure the ends of justice. The provision does not confer\n            new powers. It only recognises and preserves powers\n            which inhere in the High Court;(ii) The invocation of the jurisdiction of the High Court toPage 10 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                                JUDGMENT DATED: 02/05/2023\n\n\n\n\n            quash a First Information Report or a criminal proceeding\n            on the ground that a settlement has been arrived at\n            between the offender and the victim is not the same as the\n            invocation of jurisdiction for the purpose of compounding\n            an offence. While compounding an offence, the power of\n            the court is governed by the provisions ofSection 320of the\n            Code of Criminal Procedure, 1973. The power to quash\n            under Section 482 is attracted even if the offence is non-\n            compoundable.(iii) In forming an opinion whether a criminal proceeding\n            or complaint should be quashed in exercise of its\n            jurisdiction under Section 482, the High Court must\n            evaluate whether the ends of justice would justify the\n            exercise of the inherent power;(iv) While the inherent power of the High Court has a wide\n            ambit and plenitude it has to be exercised; (i) to secure the\n            ends of justice or (ii) to prevent an abuse of the process of\n            any court;(v) The decision as to whether a complaint or First\n            Information Report should be quashed on the ground that\n            the offender and victim have settled the dispute, revolves\n            ultimately on the facts and circumstances of each case and\n            no exhaustive elaboration of principles can be formulated;(vi) In the exercise of the power under Section 482 and\n            while dealing with a plea that the dispute has been settled,\n            the High Court must have due regard to the nature and\n            gravity of the offence. Heinous and serious offences\n            involving mental depravity or offences such as murder,\n            rape and dacoity cannot appropriately be quashed though\n            the victim or the family of the victim have settled the\n            dispute. Such offences are, truly speaking, not private in\n            nature but have a serious impact upon society. The decision\n            to continue with the trial in such cases is founded on the\n            overriding element of public interest in punishing persons\n            for serious offences;(vii) As distinguished from serious offences, there may be\n            criminal cases which have an overwhelming or\n            predominant element of a civil dispute. They stand on a\n            distinct footing in so far as the exercise of the inherent\n            power to quash is concerned;Page 11 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                                JUDGMENT DATED: 02/05/2023(viii) Criminal cases involving offences which arise from\n            commercial, financial, mercantile, partnership or similar\n            transactions with an essentially civil flavour may in\n            appropriate situations fall for quashing where parties have\n            settled the dispute;(ix) In such a case, the High Court may quash the criminal\n            proceeding if in view of the compromise between the\n            disputants, the possibility of a conviction is remote and the\n            continuation of a criminal proceeding would cause\n            oppression and prejudice; and(x) There is yet an exception to the principle set out in\n            propositions (viii) and (ix) above. Economic offences\n            involving the financial and economic well-being of the state\n            have implications which lie beyond the domain of a mere\n            dispute between private disputants. The High Court would\n            be justified in declining to quash where the offender is\n            involved in an activity akin to a financial or economic fraud\n            or misdemeanour. The consequences of the act complained\n            of upon the financial or economic system will weigh in the\n            balance.17. Bearing in mind the above principles which have been laid\n    down in the decisions of this Court, we are of the view that the\n    High Court was justified in declining to entertain the application\n    for quashing the First Information Report in the exercise of its\n    inherent jurisdiction. The High Court has adverted to two\n    significant circumstances. Each of them has a bearing on whether\n    the exercise of the jurisdiction under Section 482 to quash the FIR\n    would sub serve or secure the ends of justice or prevent an abuse\n    of the process of the court. The first is that the appellants were\n    absconding and warrants had been issued against them underSection 70of the Code of Criminal Procedure, 1973. The second is\n    that the appellants have criminal antecedents, reflected in the\n    chart which has been extracted in the earlier part of this\n    judgment. The High Court adverted to the modus operandi\n    which had been followed by the appellants in grabbing valuable\n    parcels of land and noted that in the past as well, they were\n    alleged to have been connected with such nefarious activities by\n    opening bogus bank accounts. It was in this view of the matter\n    that the High Court observed that in a case involving extortion,\n    forgery and conspiracy where all the appellants were acting as a\n    team, it was not in the interest of society to quash the FIR on thePage 12 of 13Downloaded on : Sat May 06 20:36:50 IST 2023R/CR.MA/5593/2023                                      JUDGMENT DATED: 02/05/2023\n\n\n\n\n       ground that a settlement had been arrived at with the\n       complainant. We agree with the view of the High Court."8. Considering             the     allegations               made          in       the\n     impugned FIR, prima facie, the involvement of\n     the petitioner in the alleged offence could not\n     be ruled out. Thus, in view of the principle\n     laid        down in      the aforesaid           judgment             and the\n     facts and circumstances of the case, this Court\n     does        not   find    this    to        be   a    fit      case        where\n     discretion undersection 482of Cr.P.C. could\n     be exercised in favour of the petitioner.9. For           the   foregoing      reasons,            the     petition            is\n     dismissed.(SAMIR J. DAVE,J)\nMEHUL B. TUVARPage 13 of 13Downloaded on : Sat May 06 20:36:50 IST 2023