Karanjeet Kour And Ors vs Union Territory J&K And Another
2021 Latest Caselaw 274 j&K

      IN THE HIGH COURT OF JAMMU AND KASHMIR
                     AT JAMMU


                                               CRM(M) 18/2021
                                               CrlM Nos. 70/2021,
                                               363/2021



Karanjeet Kour and ors                           ... Petitioner(s)
                          Through: -Mr.M. Tariq Mughal Advocate.

                   Vs.

Union Territory J&K and another

                                                Respondent(s)
                          Through: - Mr. Aseem Sawhney AAG


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



                             JUDGMENT

1 The instant petition came to be filed by the petitioners seeking

quashment of FIR No. 09/2017 dated 01.03.2017 for offences under

Sections 498-A/406/109 RPC registered with Police Station, Women

Cell, Gandhi Nagar,Jammu together with the challan pending disposal

before the Court of learned Judicial Magistrate 1st Class (City Judge),

Jammu and the consequent proceedings initiated thereon by the learned

Magistrate, on the basis of compromise arrived at between the parties.

2 It is the case of the petitioners that petitioner No. 1 and petitioner

No.2 are legally wedded couple, whereas, petitioners No. 3 & 4

happen to be the parents of petitioner No.2, petitioner No.5 happens to

be the brother of petitioner No.2, petitioners No.6 and 7 happens to be

the maternal grandfather and grandmother of petitioner No.2 and

petitioner No.8 happens to be the maternal uncle of petitioner No.2.

According to the petitioners, after the solemnization of their marriage,

relations between them got strained. This led to their separation giving

rise to filing of a complaint under Section 12 of the Protection of

Woman from Domestic Violence Act before the Court of learned

JMIC/ City Judge, Jammu. During the pendency of the said complaint,

petitioner No.1 also lodged FIR No. 09/2017 with the Police Station,

Women Cell, Jammu against the other petitioners which led to the

filing of the challan before the trial Court.

3. I have heard learned counsel for the parties and perused the

record.

4 It appears that, during the pendency of aforesaid litigation, good

sense prevailed upon the parties and they settled their disputes. In this

direction, they filed a petition for grant of divorce by mutual consent

before the Court of learned Additional District Judge (Matrimonial

Cases), Jammu. It is pertinent to mention here that during the pendency

of said petition, a compromise deed had also been executed between

the parties on 24.11.2020, copy whereof has been placed on record by

the petitioners. As per the terms of the said compromise deed, it has

been agreed by both the parties that they will not file any litigation in

future against each other and that they have amicably decided not to

pursue the criminal cases filed against each other in Police

Stations/Courts concerned which included the impugned FIR.

5 It appears that the learned Additional District Judge

(Matrimonial Cases), Jammu, after recording the statements of the

parties wherein the parties have stated that there is nothing outstanding

against each other, dissolved the marriage of petitioners Nos.1 and 2

by passing a decree of divorce by mutual consent under Section 13-B

of the Hindu Marriage Act. It is submitted that in view of the

compromise arrived at between the parties and the mutual divorce

between the parties, complaint under Section 12 of Protection of

Woman from Domestic Violence Act pending disposal before the Court

of learned JMIC/City Judge, Jammu has also been dismissed as

withdrawn vide order dated 09.01.2021

6 This Court, vide order dated 17.02.2021, directed the parties to

appear before the Registrar Judicial of this Court for recording their

statements in support of the compromise arrived at between them,

whereafter their statements were recorded by the learned Registrar

Judicial wherein petitioners Nos.1 and 2 have stated that they have

entered into a compromise and have amicably settled all their disputes

and issues.

7 Referring to the aforesaid settlement, it is submitted by the

petitioners that all the disputes and differences have been settled

between the parties and they have decided to withdraw all the criminal /

civil cases filed by them against each other. It is further submitted tha

in view of the compromise arrived at between the parties, continuation

of the proceedings of subject FIR will be an abuse of process of law, as

no fruitful purpose would be served in keeping the matter pending.

8 In the backdrop of aforesaid facts, the question arises as to

whether this Court has power to quash the proceedings, particularly

when the offence alleged to have been committed by the petitioners 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 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.."

9 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.

(I) 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.

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

(III) 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.

(IV) 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.

(IV) 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 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.

10 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 the family disputes 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.

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

to the matrimonial dispute, i.e petitioner No. 1 and petitioner No.2 have

entered into a compromise. Merely because offence under Section

498-A RPC for which petitioners have been booked on the basis of the

complaint made by petitioner No.1 are non-compoundable, if an end is

not put to the criminal proceedings, it would amount to the grave

injustice to the petitioners and in fact, it will amount to frittering away

of the fruits of the compromise that has been arrived at between the

parties. The continuance of criminal proceedings against the

petitioners, in these circumstances, will be nothing but an abuse of

process of law.

12 Taking conspectus of the aforesaid discussion, the

petition is allowed. Accordingly, FIR No. 09/2017 dated 01.03.2017 for

offences under Sections 498-A/406/109 RPC registered with Police

Station, Women Cell, Gandhi Nagar, Jammu together with the challan

pending disposal before the Court of learned Judicial Magistrate 1 st

Class (City Judge), Jammu and the consequent proceedings initiated

thereon by the learned Magistrate is/are quashed in terms of

compromise/settlement arrived at between the parties.

Disposed of along with connected applications.

(SANJAY DHAR) JUDGE

Jammu 10.03.2021 Sanjeev

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