Vipul @ Vijay Jinabhai Sapara @ Kodi vs State Of Gujarat

Ashutosh J. Shastri, J

Present application under Section 482 of the Code of Criminal Procedure is filed for the purpose of seeking following reliefs:-

“(A) That the Hon’ble Court may be pleased to admit this Criminal Misc. Application.

(B) That this Hon’ble Court may be pleased to allow this present Criminal Misc. Application by quashing and setting aside the complaint filed at

Annexure-A before DASHA Police Station, BOTAD vide FIR No.11190003200082 for the offence punishable under Sec. 363, 366, 376, 506(2) of

I.P.C. & U/S 4, 8 of the POCSO Act on 18.03.2020 in the interest of justice.

(C) Pending admission, hearing and till final disposal of this petition, this Hon’ble Court may pleased to grant stay as to further proceedings of

complainant filed by respondent no.2 before DASHA Police Station, BOTAD vide FIR No.11190003200082 for the offence punishable under Sec.

363, 366, 376, 506(2) of I.P.C. & U/S 4, 8 of the POCSO Act on 18.03.2020 in the interest of justice.

(D) ………….â€​

The case of the applicant is that the present applicant is an innocent person and on account of he being emotionally attached to the complainant,

they got married on 3.1.2020 and are actually living as husband and wife. On account of some misunderstanding, the complaint came to be filed. But,

on passage of time, on account of intervention took place of the community people, friends and relatives, the dispute has been amicably resolved

between the applicant and the complainant and in fact, both are residing and living together at present happily and since the dispute is already resolved

amongst the parties, the complaint in question be quashed in the interest of justice.

Learned advocate Mr. Nisarg Shah for the applicant has pointed out that in fact, there is a specific affidavit filed by the complainant, reflecting on

page 11 of the application compilation, and the dispute is already resolved and as such, considering the law laid down by various decisions, instead of

allowing the parties to drag into litigation, the complaint be quashed. To substantiate his contention, Mr. Nisarg Shah has pointed out the following

decisions:-

(1) Order of Hon’ble Supreme Court in Criminal Appeal Appeal No.1740 of 2019 dated 22.11.2019.

(2) Order dated 31.1.2020 passed in Criminal Misc. Application No.2236 of 2020;

(3) Order dated 27.8.2019 passed in Criminal Misc. Application No.16219 of 2019;

(4) Order dated 30.3.2016 passed in Criminal Misc. Application No.3433 of 2016;

(5) Order dated 21.6.2018 passed in Criminal Misc. Application No.11568 of 2018;

(6) Order dated 27.8.2019 passed in Criminal Misc. Application No.16219 of 2019.

Mr. Nisarg Shah has reiterated that as the victim girl has already married and is residing peacefully, the purpose of welfare of the victim to be

protected is ensured and in fact, by exercising the jurisdiction under Section 482 of the Code, the impugned criminal prosecution be quashed.

As against the aforesaid submissions, learned advocate Mr. Mohasinkhan Koreja appearing on behalf of the complainant has confirmed the fact

that the dispute is resolved between the parties and undisputedly, now, they are residing as husband and wife happily and on video conferencing

screen, learned advocate has identified the complainant. Even the father of the boy and the father of the girl both were present on the screen and they

have been identified by learned advocate Mr. Koreja and he has also confirmed the fact that the specific affidavit has been filed by Rina Ashokbhai

Solanki that they have happily married on 3.1.2020. Hence, learned advocate has requested that by consent, the complaint be quashed in the interest

of justice. Mr. Koreja has also relied upon the decisions which are pressed into service by learned advocate Mr. Nisarg Shah, representing the

applicant.

Learned APP Mr. Shah has submitted that it appears that looking to the stand of both learned advocates, the dispute is resolved between the parties

and further, there are several orders by virtue of which the complaints have been quashed and has left the matter to the discretion of this Court

without much resistance.

Having heard learned advocates appearing for the parties and having gone through the material on record, it appears undisputedly, from the affidavit

as well as from the stand taken by both learned advocates that the applicant as well as the victim have already legally married on 3.1.2020 and are

actually residing together. On the video screen, learned advocate has identified the girl who got married with the present applicant appearing on the

screen and parents of both the parties have also been identified who were present on the screen. Hence, it appears that there is a no suspicion about

the fact of amicably resolving the dispute between the parties. From the aforesaid facts, the fact is brought to the notice of this Court that several

decisions have been taken by the Coordinate Benches of this Court that in such kind of cases, whenever there is a settlement took place, in the

interest of welfare of the victim and to ensure her future life, the Courts have exercised the extraordinary jurisdiction under Section 482 of the Code

and thereby have quashed the criminal prosecution. The aforesaid decisions which have been cited by learned advocates have been kept in mind by

the Court while passing the present order. Hence, the case is made out to quash the complaint.

Since this Court is inclined to consider the request on the basis of the several decisions of the Coordinate Benches, few observations contained in

one of the decisions, i.e. order dated 27.8.2019 in Criminal Misc. Application No.16219 of 2019, are reproduced hereinafter:-

[9] It is now settled that in serious offence as one u/s 376 of the IPC cannot be subject matter of quashment of the proceedings initiated u/s 482 of the

Code of Criminal Procedure, 1973 on the ground of settlement between the accused and the victim. Suffice it to refer the various decisions rendered

by the Hon’ble Apex Court on such aspect, more particularly, in cases of Anita Maria Dias Vs. State of Maharashtra reported in (2018) 3 SCC

290, Shimbu Vs. State of Haryana reported in (2014) 13 SCC 318 and Parbatbhai Ahir Vs. State of Gujarat reported in (2017) 9 SCC 641. However,

this Court cannot overlook the fact that the applicant and the victim girl got married and out of said wedlock, they have two children. Such situation is

an exception to the approach to deal with the proceedings initiated u/s 482 of the Code of Criminal Procedure, 1973 on the basis of settlement

between the victim and the accused and for the pre-dominant purpose of the welfare of the victim to ensure her better future life, it is just and proper

for this Court in exercise of extraordinary inherent powers u/s 482 of the Code of Criminal Procedure, 1973 could quash the impugned criminal

proceedings on the ground of settlement between the parties in cases where the accused has married and the complainant and the victim insist for

quashment of impugned criminal proceedings.

[10] In view of the aforementioned aspect, more particularly, in light of the statements made by respondent No.2 and the victim supported by duly

affirmed affidavit placed on record through their learned advocate Mr. Jarjis Khan, which is ordered to be taken on record, this Court is inclined to

consider the plea for quashment of the impugned FIR, as otherwise, it will detrimentally affect the family life of the victim girl and even the balance

and harmony that could be achieved by them in the resolution of disputes that again be irrecoverably lost.

[11] Since now, the dispute with reference to the impugned F.I.R. is settled and resolved by and between parties which is confirmed by the original

complainant through his learned advocate, the trial would be futile and any further continuation of proceedings would amount to abuse of process of

law. Therefore, the impugned F.I.R. is required to be quashed and set aside in view of peculiar facts of the case being exception to the general

principle of law to decline the quashment of proceedings of the nature like present one.

Hence, the application is allowed. Impugned FIR, being C.R. No.11190003200082 of 2020 lodged before DASHA Police Station, BOTAD and all

other proceedings taken out in pursuance thereof against the present applicant are hereby quashed and set aside. The applicant will produce the

certified copy of this order before the concerned learned Sessions Court and also before the investigating officer for necessary action. Rule is made

absolute to the aforesaid extent.

The Registry is directed to communicate this order by fax or e-mail to the concerned authority.