Jammu & Kashmir High Court
Nazarat Hussain vs Union Territory Of Jammu & Kashmir on 21 October, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Sr. No.127
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No.803/2024
CrlM No.1651/2024
Nazarat Hussain, age 26 years
S/o Mohd. Arif
R/o Ward No.8 Ari Tehsil Mendhar Distt.
Poonch, Presently under the custody of
District Jail Poonch through his brother
Basharat Hussain, 30 years
S/o Mohd. Arif R/o Ward No.8 Ari
Tehsil Mendhar, District Poonch .....Petitioner/Appellant(s)
Through: Mr. Anuj Malhotra, Advocate
Vs
1. Union Territory of Jammu & Kashmir
through Incharge S.H.O. Police Station,
Poonch, Jammu, Jammu & Kashmir
2. Wajida Khanam D/o Mohd. Maroof R/o
Village Gohlad Tehsil Mendhar District
Poonch
3. Superintendent of District Jail, Poonch ..... Respondent(s)
Through: Ms. Monika Kohli, Sr. AAG for R-1 & 3
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
21.10.2024
01. At the outset, learned counsel for the petitioner submits that inadvertently
in the petition Police Station, Poonch has been written whereas the
impugned FIR was lodged in Police Station, Mendhar, therefore, Police
Station, Poonch wherever mentioned in the petition be read as Police
Station, Mendhar. His prayer seems to be genuine and is, therefore,
allowed. Police Station, Poonch be read as Police Station, Mendhar
wherever mentioned in the petition.
02. Through the medium of instant petition filed under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner seeks quashing
of the proceedings in challan titled UT of J&K v. Nazarat Hussain,
pending before the Court of Principal Sessions Judge, Poonch arising out
of FIR No.0001/2024 dated 04.01.2024 for commission of offence under
Section 376 IPC registered at Police Station, Mendhar against the
petitioner.
03. It is stated that the respondent No.2 is real sister of the wife of petitioner's
brother. According to the petitioner, there was great affection between the
petitioner and respondent No.2 and they were fond of each other. When
the petitioner disclosed to his parents about his love affair with respondent
No.2 and his desire to marry her, petitioner's parents told the petitioner
that they have already arranged his marriage at Agra and stepping back
would harm their reputation. It is stated that the petitioner succumbed to
the wish of his parents and got married with one Shamim and settled at
Agra. The petitioner became father of two children out of his marriage
with said Shamim, however, owing to their matrimonial discord, the
petitioner ultimately came back to his native place and again petitioner
and respondent No.2 got involved in love. According to the petitioner, the
fact of his marriage and having two children was known to respondent
No.2. The respondent No.2 got pregnant and when petitioner came to
know about the pregnancy of respondent No.2, he offered to marry her,
however, parents of the parties got annoyed. The father of respondent
No.2 warned the petitioner to stay away from respondent No.2 or he
would have to face dire consequences. Meanwhile, respondent No.2
delivered a male baby.
04. It is further submitted that request of the petitioner to common relatives to
persuade the parents of respondent No.2 thereby allowing respondent
No.2 to marry him did not yield any result as parents of the respondent
No.2 had showed their hostility and resentment which resulted in lodging
a false an frivolous case against the petitioner by respondent No.2, as a
result whereof, FIR No.0001/2024 was lodged at Police Station, Mendhar.
It is further submitted that after investigation in the impugned FIR, the
police has presented charge-sheet, which is pending trial before the Court
of learned Principal Sessions Judge, Poonch and charge stands framed
against the petitioner.
05. During the pendency of the proceedings, the parties have decided to settle
the dispute amicably outside the Court. In terms of the agreement arrived
at between the parties, they have decided to resolve the disputes and put
an end to the litigation. In terms of the said compromise, the petitioner is
ready to solemnize marriage with respondent No.2 and accept the child
born out of their relationship, as such, the petitioner seeks indulgence of
this Court for quashing the FIR and the criminal challan along with
subsequent proceedings emanated therefrom.
06. When the case was taken up, respondent No.2 was present in the Court.
This Court directed that the statement of respondent No.2, who is
complainant, be recorded by the Registrar Judicial of this Court. The
respondent No.2 has recorded her statement before the Registrar Judicial
and same is placed on the record of the file. As per the statement of
respondent No.2, petitioner has agreed to marry her and redress all her
grievances and in view of this assurance, she do not want to pursue the
impugned FIR lodged by her against the petitioner. She has further stated
that she has no objection if the impugned FIR along with consequential
proceedings is quashed.
07. On the other hand, learned counsel for the petitioner submits that he is
under instructions to state that the petitioner will marry respondent No.2
and shall accept and give his name to the child born out of their
relationship thereby redressing all the grievances made by respondent
No.2.
08. The question, which arises for consideration is whether the proceedings
can be quashed on compromise between the parties, is no more res
integra. The Hon'ble Apex Court in Narinder Singh and others vs. State
of Punjab and others, (2014) 6 SCC 466, framed guidelines for
accepting the settlement for quashing the proceedings or refusing to
accept the settlement with direction to continue with criminal proceeding.
Paragraph Nos. 29.3, 29.4, 29.5, 29.6 & 29.7 being relevant are
reproduced below:-
"29.03 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.
29.4 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.
29.5 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.
29.6 Offences under Section 307 IPC would fall in the category of
heinous and serious 1 (2014) 6 SCC 466 offences and therefore are 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 latter 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.
29.7 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 chargesheet 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."
09. From a bare reading of the guidelines framed by the Supreme Court in
Narinder Singh (supra), it is manifestly clear that though the Court
should be slow in quashing the proceedings wherein heinous and serious
offences are involved, the High Court is not precluded from examining as
to whether there is sufficient evidence, which, if proved, would lead to
proving the charge for the offence charged with. The Court has also to
take into consideration as to whether the settlement between the parties is
going to result into harmony between them which may improve their
mutual relationship.
10. Stage of the proceedings is also relevant to be considered and if an
application is made at a belated stage where the evidence has been led and
the matter is at the stage of arguments or judgment, the Court should be
loath to exercise the power to quash the proceedings. However, if such an
application is made at an initial stage before commencement of trial, the
said factor will weigh with the court in exercising its power.
11. It is also well settled that the Court should not normally exercise the power of
quashing the criminal proceedings in a heinous crime like rape, however, in the
peculiar facts and circumstances of the present case and in order to give succour
to Respondent No. 2 so that she is saved from further agony of facing
humiliation in the society as also financial hardship in upbringing the baby
delivered by her, this case is found to be a fit case wherein the extraordinary
powers of this Court are required to be exercised to quash the criminal
proceedings.
12. In the present case also, though the charge has been framed against the
petitioner but the trial is still at its infancy and keeping in view the nature
of the allegations and also considering the fact that the parties have
already settled the matter and have agreed that respondent No. 2 has no
objection if the impugned FIR and subsequent charge-sheet is quashed. It
is further to be noted that since Respondent No.2 herself is not supporting the
prosecution case, even if the criminal trial is permitted to continue, it would
result in an acquittal. If the request of the parties is denied, it amount only to
add one more case to the already overburdened criminal courts.
13. In view of the compromise entered into between the parties, there are
bleak chances of conviction and continuation of criminal proceedings will
cause grave injustice to the parties and would amount to abuse of the
process of Court, as the parties are no longer interested in pursuing the
same. It is also to be noted that since Respondent 2 herself is not supporting the
prosecution case, even if the criminal trial is permitted to continue, it would be
a exercise in futility. Since petitioner has assured respondent No.2 to marry her,
if proceeding arisen out of the impugned FIR are allowed to continue, it would
be amounting to disallowing the parties to have the fruits of the compromise
arrived at between them by marrying each other and living a happy married life.
If the request of the parties is denied, it will be amounting to only adding one
more criminal case to the already overburdened criminal courts.
14. In view of the aforesaid discussion as well as law laid down by the
Hon'ble Apex Court to secure the ends of justice, this petition is allowed
and FIR No.0001/2024 registered at Police Station, Mendhar and
consequent Charge-sheet titled UT of J&K v. Nazarat Hussain, pending
disposal before the Court of Principal Sessions Judge, Poonch are
quashed. The petitioner is directed to be set at liberty forthwith.
15. Disposed of accordingly.
Registry to send a copy of this judgment to the trial Court.
(Moksha Khajuria Kazmi)
Judge
Jammu
21.10.2024
Vinod, PS
Whether the order is reportable: Yes/No
