Neeshu Bala & Ors vs State Of J&K And Anr
2022 Latest Caselaw 7 j&K

                                                            Sr. No.16
                                                            Regular List

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                  (THROUGH VIRTUAL MODE)


                         CRMC No.572/2018


NEESHU BALA & ORS.                           ... PETITIONER(S)

            Through: - Mr. Ajay Kumar, Advocate.

Vs.


STATE of J&K AND ANR.                         ...RESPONDENT(S)
            Through: -   Mr Amit Gupta AAG for R1
                         Mr. Pawan Kumar Hans, Advocate-for R2.

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

                               JUDGMENT

27.01.2022

1) Instant petition has been filed by the petitionersseeking

quashment for FIR No.68/2017 for offences under Section 452, 323,

506/34 RPC registered with Police Station, Pir Mitha Jammu.

2) Briefly put, the case set up by the petitioners is that on

18.02.2017 petitioner No.1 was married to respondent No.2 as per

Hindu customs and rites. It is contended that the relations between the

petitioner No.1 and 2 remained cordial for some time but within three

months of the marriage, matrimonial disputes arose between the

parties. It is also contended that the respondent No.2 started treating

the petitioner No.1 with cruelty for bringing less dowry and 2CRMC No.572/2018

demanding more dowry. It is further contended that the relatives of

petitioner No.1 tried to settle the matrimonial dispute between the

parties but of no avail.Thepetitioner No.1filed a petition under Section

488 Cr. P. C before the Court of Judicial Magistrate, R. S. Pura seeking

maintenance from respondent No.2. The petitioner No.1 also approached

the Women's Cell of, Jammu Police, for settlement of the matrimonial

dispute but despite efforts of the Women's Cell, the relations between the

petitioner No.1 and the respondent No.1 continued to remain strained.

3) It is further averred that as a counterblast,respondent No.1filed

an application under Section 156(3) Cr.P.C for registration of FIR

against the petitioners and pursuant to the directions dt.16.10.2017 of

the learned Magistrate, the impugned FIR No.68/2017 for offences

under Section 452, 323, 506/34 RPC has been registered against the

petitioners.

4) It seems that during the pendency of all these proceedings, a

compromise was arrived at between the parties and, accordingly, a

petition for grant of divorce by mutual consent came to be filed by

petitioner No.1 and respondent No. 2 before the Court of Additional

District Judge, Matrimonial Cases, Jammu. As per thecontents of this

petition, the parties have settled their disputes amicably. It is further

stated in the divorce petition that the parties thereto shall not pursue

the cases filed by them against each other the impugned FIR.Based on

the statements of the parties, the marriage between petitioner No. 1

and respondent No.2 stands dissolved by a decree of divorce by 3CRMC No.572/2018

mutual consent in terms of the judgement and decree dt.29.09.2018

passed by the Matrimonial Court.The petitioners, have placed on

record copies of the petition for divorce, statements of the parties

recorded before the Matrimonial Court and judgement and decree

dt.29.09.2018.

5) The petitioners have contended that so far as the case arising

out of FIR No.68/2017, is concerned, the same could not be

compounded because some of the offences are non-compoundable in

nature. It is in these circumstances that the petitioners have

approached this Court for seeking quashment of the aforesaid FIR and

the criminal proceedings arising there from.

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

record of the case.

7) So far as the facts alleged in the petition, particularly those

pertaining to the compromise arrived at between the parties, which

has led to dissolution of marriage between petitioner No.1 and

respondent No. 2 by mutual consent are concerned, the same are not

in dispute.

8) In the backdrop of aforesaid facts, 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

petitioner are non-compoundable in nature. The Supreme Court in the

case of Gian Singh. v. State of Punjab & another, reported in 4CRMC No.572/2018

(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 5CRMC No.572/2018

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.

6CRMC No.572/2018

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 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 7CRMC No.572/2018

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 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, 8CRMC No.572/2018

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 respondent

No.2 have entered into a compromise and that compromise has also

been acted upon by the parties, inasmuch as the cases and counter

cases lodged by the parties against each other have been withdrawn

and their marriage has been dissolved with their mutual consent.

Merely because the offence under S.452 RPC, for which

petitionershave been booked on the basis of the complaint made by

respondent No.2, is non-compoundable, if an end is not put to the

criminal proceedings, it would amount to grave injustice to the

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

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.68/2017 for offences under Section 9CRMC No.572/2018

452, 323, 506/34 RPC registered at Police Station, Pir Mitha Jammu,

and the consequent proceedings emanating there from, are quashed.

(Sanjay Dhar) Judge Jammu 27.01.2022 "BhatAltaf, PS"

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