Crlm (198/2021) vs Ut Of J&K Through Sho Ganderbal
2021 Latest Caselaw 1241 j&K/2

                                                     Supplementary - 1 List
                                                           S. No. 65


HIGH COURT OF JAMMU & KASHMIR AND LADAKH
               AT SRINAGAR

                                                   CRM (M) 66/2021
                                                    CrlM (198/2021)
    Tariq Ahmad Waza
                                             ... Petitioner/Appellant(s)
    Through: Mr. Javaid Hameed, Advocate

    V/s
    UT of J&K through SHO Ganderbal
                                                     ... Respondent(s)

    Through: Mr. Rayees ud Din Ganai, GA

    CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI,
    JUDGE

                            ORDER

06-10-2021

01/ Inherent jurisdiction of this Court u/s 482 Cr.PC is being

invoked by the petitioner for quashment of FIR No.

328/2020 dated 24-11-2020, registered at Police Station,

Ganderbal, Kashmir, under Sections 354, 323, 392, 506,

201 IPC 1860

02/ The background facts, those stem out from the petition,

according to the petitioner, are that the petitioner is

working in Fire Service Emergency Department, Kashmir,

as a Firemen Driver. It is submitted that respondent no. 2

due to some misunderstanding lodged a complaint on

24.11.2020 alleging therein that on 21.11.2020 the

petitioner pushed the respondent no.2 inside the car and

gave several blows to respondent no. 2 on her face and the

respondent no. 2 started bleeding from the nose and the

eye. It is submitted that the respondent no. 2 also alleged

that the petitioner snatched one gold bangle and a sum of

Rs. 11,300/- from the respondent, besides physically

abusing and assaulting her.

03/ It is submitted that after registration of the FIR dated

24.11.2020, the petitioner was arrested on 25.11.2020 by

respondent no. 1 and on 26.11.2020, the petitioner was

produced before the learned Judicial Magistrate,

Ganderbal and the court of Judicial Magistrate Ganderbal

remanded the petitioner to the police custody for 15 days

with effect from 26.11.2020 to 10.12.2020, which was

further extended up to 29.12.2020, and ultimately the

petitioner got bail on 12.12.2020. It is further submitted by

the petitioner that respondent no. 1 has filed police report

alleging offences under section 323, 354, 392, 506 and

201 IPC against the petitioner.

04/ It is submitted that the FIR bearing no. 238/2020 was

lodged under section 354, 392 and 323 of the Indian penal

Code and the police report has been filed in CC no.

265/2020, alleging the commission of offences under

Section 354, 392, 323, 506, 201 of the IPC. It is submitted

by the petitioner that the possibility of conviction under

section 392 and 201 is remote and bleak as according to

him there are material contradictions in statement recorded

under section 164 CrPC and the complaint lodged by the

respondent no. 2 on 24.11.2020.

05/ It is submitted that at the time of alleged occurrence i.e.

21.11.2020, the petitioner was present in the office, which

is evident from the register attendance, maintained by the

Fire and Emergency Services department, where the

petitioner is working. Further it is submitted that the

respondent no. 2 has in her application dated 24.11.2020

alleged that the incident happened on 21.11.2020, while as

the FIR was lodged on 24.11.2020 and that the delay in

lodging the FIR, therefore, is fatal to the prosecution case

and on this ground alone the possibility of conviction is

miniscule. In so far as the other offences alleged under

sections 354, 323, 506 against the petitioner are

concerned, it is submitted that they are compoundable in

nature under Section 320 of Code of Criminal Procedure.

As far as section 201, IPC is concerned as leveled in the

Police Report, the same is prima face without any basis

and is not attracted in the case.

06/ It is submitted that the petitioner and the respondent No. 2

herein (complainant) have entered into a compromise on

5.2.2021 and that the petitioner consequently approached

this court for quashing of the FIR in question and the

consequential CC no. 265/2020 before the Additional

Special Mobile Magistrate, Ganderbal, Srinagar. It is

submitted that it would be unfair and contrary to the

interest of justice to continue with the criminal

proceedings and the continuation of the criminal

proceedings would tantamount to the abuse or process of

law in presence of settlement and compromise between

the parties.

08/ Heard learned counsel for the parties and perused the

record.

09/ Learned counsel for the petitioner made submission in

tune with the stand taken in the petition, reiterating the

prayer for quashment of the F.I.R in question as also the

criminal proceedings instituted thereupon. Learned

counsel referred to the judgements of the Apex Court titled

as "Gian Singh versus State of Punjab & Another,

reported in 2012 0 Supreme (SC) 652" and "Parbatbhai

Aahir and others versus State of Gujarat and another,

reported in 2017 0 Supreme (SC) 967"

10/ Before proceeding further in the matter, it would be

appropriate to extract and reproduce hereunder the

statement of the respondent No. 1 recorded pursuant to the

order of this Court dated 08-09-2021:

"Statement of Shameemul Farhath (respondent no.1 in

CRM (M) No. 66/2021) , Age : 43 years ; D/o Nigannad /ranzab /sgeujg R/o Ganderbal, Tulmulla, J&K, on oath today i.e. 09.09.2021.

Deposed that she has compromised with the petitioner Tariq Ahmad Waza, aged 31 years, son of Ali Mohammad Waza, resident of Serch Chowdrybagh, Ganderbal, Srinagar, J&K, and has amicably settled all the disputes and differences arose between them. She has stated that now she has no grievance with the petitioner. That the compromise so made between her and petitioner has been reduced in writing and same has been submitted before the Hon'ble Court. She has stated that she will adhere to all the conditions laid in the compromise agreement.

11/ A reference hereunder, to paragraph 57 of the Apex

Court judgement, passed in Gian Sing's case supra

and paragraph 15 of the Apex Court judgement,

passed in Parbatbhai Aahir's case supra,

respectively, being relevant and genuine herein,

would be advantageous:s

"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."

"15. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :

(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.

(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental

depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and

(ix) above. Economic offences involving the financial and economic well- being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

12/ Having regard to the issue involved in the petition

and keeping in mind the judgments of the Apex

Court supra, inasmuch as the statement of the

respondent No.1, it transpires that the F.I.R in

question had been got registered against the

petitioner by respondent No. 1 after they got

involved in a dispute, predominantly and essentially,

having a civil flavour, and in view of the

compromise arrived at between the petitioners, there

is a bleak and remote possibility of conviction of

the petitioner and the continuation of the criminal

proceedings, thus, would amount to abuse of process

of Court.

13/ In the backdrop of what has been discussed above,

CRM (M) 66/2021 is allowed along with connected

CrlM, and the FIR No. 328/2020 dated 24-11-2020,

registered at Police Station, Ganderbal, U/Ss 354,

323, 392, 506, 201 IPC and consequent criminal

proceedings pending before the Court of Ld.

Additional Special Mobile Magistrate, Ganderbal,

Srinagar are quashed.

(JAVED IQBAL WANI) Judge.

                       Srinagar
                       06.10.2021
                       N. Ahmad

                                                 Whether the order is speaking     : Yes
                                                 Whether the order is reportable   : Yes




NISSAR A BHAT
2021.10.07 14:28
I attest to the accuracy and
integrity of this document