Rashid Anjum Wafai vs Ut Of J&K And Anr. `
2021 Latest Caselaw 1606 j&K/2

                                                          Sr. No.52
                                                          Advance List
      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                     AT SRINAGAR

                        CRM(M) No.296/2021
                               c/w
                        CRM(M) No.228/2021


Rashid Anjum Wafai                              ... Petitioner(s)
Showkat Ahmad Mir & anr.

            Through: - Mr. Syed Manzoor Ahmad, Advocate (in
                         CRM(M) No.296/2021).
                         None for petitioners in CRM(M)
                         No.228/2021
Vs.

UT of J&K and anr.             `                    ...Respondent(s)

            Through: - None.


CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                               JUDGMENT

1) In CRM(M) No.296/2021, petitioners have challenged FIR

No.183/2021 for offences under Section 353, 323, 427 IPC registered

with Police Station, Budgam. The impugned FIR has been lodged

against the petitioners by respondents No.3 and 4. In CRM(M)

No.228/2021, petitioners have challenged FIR No.184/2021 for

offences under Section 323, 341 of Police Station, Budgam, which has

been lodged at the instance of respondent No.4 , who happens to be the

petitioner No.1 in CRM(M) No.296/2021.

c/w CRM(M) No.228/2021

2) Briefly stated, the allegations in FIR No.183/2021 against the

accused are that the employees of PDD were taking reading of

electricity meters installed at Rose Avenue Peerbagh and suddenly the

petitioners in CRM(M) No.296/2021 assaulted the petitioners in

CRM(M) No.228/2021 who were performing public duties, causing

injuries to them and obstructed them from performing their official

duties.

3) The allegations levelled by the complainant in FIR No.184/2021

against the accused are that on 27.06.2021, while the complainant

(petitioner No.1 in CRM(M) No.296/2021) along with his other family

members was at home situated at Rose Avenue Peerbagh, he saw a

ladder being put against the boundary wall on the left side of their house

adjacent to the main gate. They immediately went out to enquire and

found that one Abdul Qayoom Kumar (petitioner No.2 in CRM(M)

No.228/2021) accompanied by other individuals was trying to climb

the wall and on enquiry, the said persons replied that they are from PDD

department and were taking the reading of electric meters installed in

the area. When they were requested to remove the ladder from

boundary wall and take the reading from the designated site of meter

installation, they abused and assaulted the complainant and his brother

with the ladder which hit his left foot and also injured his brother etc.

4) During the pendency of these two petitions, the parties have

entered into a compromise and have placed on record original

compromise deed. As per this compromise deed, which has been

c/w CRM(M) No.228/2021

executed on 9th day of October, 2021, the parties have settled their

disputes amicably. It is further stated in the compromise deed that the

executants do not want to pursue the impugned FIRs.. They have also

made statements before this Court on 13.10.2021., wherein they have

admitted the contents of the deed of compromise as well as its

execution.

5) I have heard learned counsel for the parties and perused the

record of the case.

6) So far as the facts alleged in both the petitions, particularly those

pertaining to the compromise arrived at between the parties in terms of

compromise deed dated 09.10.2021, are concerned, the same are not

disputed. However, according to the petitioners, some of the offences

are non-compoundable. In the backdrop of this position, the question

arises as to whether this Court has power to quash the proceedings,

particularly when some of the offences alleged to have been committed

by the petitioners of both the petitions are non-compoundable in nature.

The Supreme Court in the case of Gian Singh. v. State of Punjab &

another, reported in (2012) 10 SCC 303, while considering this aspect,

has observed as under:

"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

c/w CRM(M) No.228/2021

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 pre-dominatingly 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.."

c/w CRM(M) No.228/2021

7) Similarly, the Supreme Court in the case titled Narinder Singh &

Ors. Vs. State of Punjab & anr, reported in (2014) 6 SCC 466, has laid

down guidelines for quashing of criminal proceedings. The guidelines

are reproduced as under:

"31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: (I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. (II) When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. (III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be

c/w CRM(M) No.228/2021

quashed when the parties have resolved their entire disputes among themselves.

(V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

(VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

(VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show

c/w CRM(M) No.228/2021

benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.

8) From a perusal of the aforesaid observations of the Supreme

Court, it is clear that the offences arising out of matrimony relating to

dowry or disputes which have predominantly civil flavour where the

wrong is basically private or personal in nature and the parties have

resolved their entire dispute, the High Court will be within its

jurisdiction to quash the criminal proceedings if it is known that

because of the compromise arrived at between the parties, there is

remote possibility of securing conviction of the accused. In fact, in such

cases, the Supreme Court has clearly observed that it would amount to

extreme injustice if despite settlement having been arrived at by the

parties, the criminal proceedings are allowed to continue.

9) Adverting to the facts of the instant case, it is clear that the parties

to the dispute i.e., complainants of both the impugned FIRs, have

entered into a compromise whereby they have decided not to pursue the

c/w CRM(M) No.228/2021

prosecution against accused in the FIRs. As is clear from the

allegations made in the two FIRs, it appears that the same are a result

of misconception and misunderstanding between the parties. Therefore,

once the rival groups have arrived at a settlement as regards the basis of the

dispute, allowing the prosecutions to continue merely because some of the

offences alleged against the accused are non-compoundable in nature

would amount to great injustice to both the parties and, in fact, it will

amount to frittering away the fruits of compromise that has been arrived

at between the parties. The continuance of criminal proceedings against

the petitioners of the two petitions, in these circumstances, will be

nothing but an abuse of process of law.

10) Taking conspectus of the aforesaid discussion, the petitions are

allowed. Accordingly, FIR No.183/2021 for offences under Section

353, 332, 427 IPC and FIR No.184/2021 for offences under Section

323, 341 IPC, both registered with Police Station, Budgam, as also the

proceedings emanating therefrom, are quashed.

(Sanjay Dhar) Judge Srinagar 14.12.2021 "Bhat Altaf, PS"

                                              Whether the order is speaking:       Yes/No
                                              Whether the order is reportable:     Yes/No




MOHAMMAD ALTAF BHAT
2021.12.17 10:07
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integrity of this document