Mushtaq Ahmad Shah & Ors vs Ut Of J&K And Others
2025 Latest Caselaw 1901 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Mushtaq Ahmad Shah & Ors vs Ut Of J&K And Others on 31 October, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR
                                                  Reserved on: 29.10.2025
                                                 Pronounced on: 31.10.2025
                                                Uploaded on: 31.10.2025
                                          Whether the operative part or full
                                      judgment is pronounce: Full Judgment

                          CRM(M) No.182/2022

MUSHTAQ AHMAD SHAH & ORS.

                                     ...PETITIONER/APPELLANTS(S)

      Through: - Mr. Naveed Gul, Advocate.

Vs.

UT OF J&K AND OTHERS                        ...RESPONDENT(S)
      Through: -     Mr. Ilyas Nazir Laway, GA, with
                     Ms. Maha Majeed, Assisting Counsel.
                     H/C Gulzar Ahmad of P/S M. R. Gunj present in person.


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

                                  JUDGMENT

1) The petitioners, through the medium of present

petition, have challenged FIR No.84/2021 for offences under

Section 354 and 448 of IPC registered with Police Staton,

M. R. Gunj, Srinagar.

2) As per prosecution case, on 25.08.2021, while the

complainant was sitting at her home, petitioner Mushtaq

Ahmad Shah, who happens to be her brother-in-law, along

with his wife, petitioner Shaheena and his son, petitioner

Tawseeq Mushtaq Shah, came over there and knocked the

door of her house. It is further alleged that the complainant

was given a beating by the petitioners and they also broke

open the lock of her another room. Prior to it, in the month

of June, petitioner Mushtaq Ahmad Shah and his wife along

with police officials had come to the home of the complainant

and questioned her. It is also alleged that on 25.08.2021, the

petitioners also hurled abuses upon the complainant,

whereafter she contacted her husband on telephone.

However, she was dragged by petitioner Mushtaq Ahmad

Shah and his wife out of her house and in the meantime, her

husband came on spot and he objected to it, as a result of

which she was set free by the petitioners. Thereafter the

petitioners attacked her husband and gave a beating to him

and when she tried to rescue him she was again dragged, as

a result of which her headgear fell down, which amounted to

outraging of her modesty.

3) It seems that the impugned FIR came to be registered

on the basis of the order passed by the learned Special

Mobile Magistrate, PT&E, Srinagar, passed on 06.10.2021.

4) The petitioners have challenged the impugned FIR on

the grounds that there is a civil dispute going on between the

parties and the complainant has lodged the impugned FIR

only with a view to wreak vengeance upon the petitioners. It

has been further contended that the allegations made in the

impugned FIR do not constitute any offence against the

petitioners. It has been submitted that the petitioners and

the private respondents are co-owners and co-sharers of the

property situated at Khankai Moulla, Kalashpora, Srinagar,

which was purchased jointly by petitioner No.1 and his real

brother, respondent No.5, way back in the year 1995. It has

been further contended that 1/3rd of the said joint property

was sold by petitioner No.1 and respondent No.5 to their

brother, namely, Mehmood Ahmad Shah.

5) According to the petitioners, they are presently putting

up at a different place and had kept their share in the

aforesaid property under lock and key but the private

respondents, taking advantage of their absence from the

property in question, tried to dispossess them by breaking

open the locks which prompted petitioner No.1 to file a civil

suit for permanent prohibitory injunction against the private

respondents before the Court of learned 2nd Additional

Munsiff, Srinagar, who, vide order dated 04.12.2015, has

directed the parties the parties to maintain status quo .

6) It has been submitted that despite the aforesaid order

of status quo passed by the civil court, the private

respondents tried to violate the same which compelled

petitioner No.1 to approach the civil court seeking

implementation of the status quo order through police

agency. Accordingly, another order dated 25.05.2016 came

to passed by the learned Civil Court in the said application.

7) It has been further stated that on 05.08.2021, when

petitioner No.2 went to the disputed property, she was

mercilessly beaten by the private respondents, which

resulted in lodging of FIR No.70/2021 for offences under

Section 354 and 323 of IPC. It is the contention of the

petitioners that the private respondents, in order to wreak

vengeance upon them, have lodged the impugned FIR which

is absolutely false.

8) The official respondents, in their reply to the petition,

have submitted that during the course of investigation, the

charges levelled against the petitioners have been

established against the petitioners and the charge sheet has

been prepared against them.

9) The private respondents were summoned but despite

service, they did not contest the petition.

10) I have heard learned counsel for the parties and

perused record of the case including the Case Diary.

11) As per the case established during the investigation of

the impugned FIR, the petitioners are alleged to have

committed two offences, one under Section 354 and the

other under Section 448 of IPC. Before determining the

question as to whether the aforesaid offences are made out

from the allegations made in the impugned FIR and the

material collected during investigation of the case, it would

be apt to understand the definition of these offences.

12) Section 354 of IPC defines the offence of outrating

modesty of a woman. It reads as under:

354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

13) From a perusal of the aforesaid provision, it is evident

that the offence under Section 354 of IPC is constituted if it

is shown that the offender has used criminal force against a

woman with an intention to outrage her modesty.

14) Section 349 of IPC defines 'force' and Section 350 of IPC

defines 'criminal force'. As per Section 349 of IPC, a person

is said to use force to another if he causes motion, change of

motion, or cessation of motion or if he causes to any

substance such motion, or change of motion, or cessation of

motion as brings that substance into contact with any part

of that other's body.

15) 'Criminal force' as per Section 350 of IPC, would mean

using of force to any person, without that person's consent,

in order to commit some offence or with a view to cause

injury, fear or annoyance to the person to whom the force is

used.

16) Section 351 of IPC defines 'assault' as any gesture or

any preparation intending that such gesture or preparation

will cause any person present to apprehend that he, who

makes that gesture or preparation, is about to use criminal

force to that person. Assault or criminal force is an essential

ingredient of offence under Section 354 of the IPC. Thus, if a

person uses criminal force or assaults a woman with an

intention to outrage her modesty, he is said to have

committed an offence under Section 354 of IPC.

17) The expression "modesty" is not defined in IPC but the

said expression has been a subject matter of discussion and

deliberation in a number of judgments and in this regard, it

would be apt to refer to the following observations of the

Supreme Court in the celebrated case of Rupan Deol Bajaj

and another vs. Kanwar Pal Singh Gill and another,

(1995) 6 SCC 194:

"14. Since the word 'modesty' has not been defined in the Penal Code, 1860 we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the

quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word 'modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Webster's Third New International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn.) the meaning of the word 'modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".

15. ........From the above dictionary meaning of 'modesty' and the interpretation given to that word by this Court in Major Singh case [AIR 1967 SC 63 : 1967 Cri LJ 1 : 1966 Supp SCR 286] it appears to us that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman....."

18) The expression 'modesty' was again interpreted by the

Supreme Court in the case of Attorney General vs. Satish

and another, (2022) 5 SCC 545, in the following manner:

"66...... These require an element of application of physical force, to women. The expression "modesty" was another limitation as older decisions show that such a state was associated with decorousness [Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 : 1995 SCC (Cri) 1059] of women. This added a dimension of patriarchy and class. [ Section 354 (or any other provision of IPC) does not offer a statutory definition of the term "modesty", and over time, was interpreted broadly, contemporaneously with the developing and acknowledged role of women in society, to overcome its inherently colonial and patriarchal origins. Yet, there were hangovers, as noticed as recently as in Kailas v. State of Maharashtra,

(2011) 1 SCC 793 : (2011) 1 SCC (Cri) 401, wherein the abhorrent argument that a tribal woman's "modesty" was distinct owing to the "inferiority" of tribal people who live in torn clothes or no proper clothes was rejected for being totally unacceptable in modern India.] One cannot be unmindful of the circumstances in which these provisions were enacted by a colonial power, at a time, when women's agency itself was unacknowledged, or had limited recognition. Further, women in India were traditionally--during the time of enactment of IPC, in the mid-Nineteenth Century--

subordinated to the care of their fathers, or their husbands, or other male relatives. They had no share in immovable property; notions of gender equality were unheard of, or not permitted. Women had no right to vote. Quite naturally, the dignity of women--or indeed their autonomy, was not provided for.

67. The advent of the Constitution of India revolutionized--at least in law, all that. Regardless of gender, race, caste, religion or region, or all of the acknowledged sectarian and discrimination enabling barriers, everyone enjoyed equality of law, and equal protection of law (Article 14). Further, the provision in Article 15(1) proscribed discrimination by the State (in all its forms) on various grounds, including gender. Article 15(3) enabled the State to enact special provisions for women and children."

19) From the foregoing analysis of the law laid down by the

Supreme Court, it is evident that modesty is the quality of a

woman of being modest whereas in relation to a woman, it

means decorous in manner and conduct. Thus, any act

which shocks the sense of decency of the woman would come

within the purview of the offence of outraging the modesty of

a woman. An act emanating from a man which tends to or

which is perceived to be of such a nature as would amount

to offensive, indecent or degrading to a woman's sense of

decency and morality, would amount to outraging the

modesty of a woman. These acts can include inappropriate

touching, disrobing or indecent gestures or remarks.

20) With the aforesaid legal position in mind, let us now

advert to the facts of the present case. As per the allegations

made by the complainant-respondent No.4 in her statement

recorded under Section 164 Cr. P. C during investigation of

the case, the petitioners are alleged to have dragged her and

beaten her, as a result of which her headgear fell down. This

according to the prosecution amounts to outraging modesty

of the complainant. The question that arises for

determination is whether the alleged act by the petitioners of

dragging the complainant during an altercation, which

resulted in dislodging of her headgear, would amount to

outraging her modesty.

21) Intent to outrage or the knowledge that by the offending

act the accused would outrage modesty of the victim women

is basic ingredient of offence under Section 354 of IPC. Mere

assault or use of criminal force to a woman simplicitor,

without there being any intention on the part of the accused

to outrage the modesty of the victim, would not fall within

the definition of the offence punishable under Section 354 of

the IPC. An assault or use of criminal force to a woman

simplicitor unaccompanied by a state of mind to outrage

modesty of such woman cannot be termed as an offence

under Section 354 of IPC.

22) In the present case, as per the statement of the

complainant and other witnesses recorded during

investigation of the case, she was dragged by the petitioners

which resulted in fall of her headgear. There is nothing either

in the statement of the complainant or in the material

collected by the Investigating Agency during investigation of

the case to remotely suggest that the petitioners intended to

outrage modesty of the complainant. While drawing such

inference, this Court is taking into account the fact that the

complainant happens to be the sister-in-law of petitioners

No.1 and 2 and aunt of petitioner No.3. Having regard to the

close relationship between the parties, it is difficult to

conceive that the petitioners intended to outrage modesty of

the complainant. Thus, it cannot be stated by any stretch of

reasoning that the allegations made in the impugned FIR

and the material collected by the Investigating Agency makes

out a case of offence under Section 354 of IPC against the

petitioners.

23) The other allegation against the petitioners is that they

have committed criminal trespass, inasmuch as they have

entered the house of the complainant with an intention to

commit the offence. Section 441 of the IPC defines criminal

trespass as entry into or upon property in possession of

another with intent to commit an offence or to intimidate,

insult or annoy any person in possession of such property.

Thus, the gist of offence under Section 448 of IPC, which

provides for punishment for criminal trespass, is that the

property, on which the aggressor party has entered, should

be in possession of the victim. Unless it is shown that the

property, upon which trespass is committed, is in possession

of the victim and not in possession of the offender, it cannot

be stated that the offence of criminal trespass has been

committed.

24) Adverting to the facts of the present case, the material

placed on record by the petitioners along with petition clearly

demonstrates that there is a serious dispute between the

parties with regard to the ownership and possession of the

house in which the alleged occurrence has taken place. A

civil suit between the parties is pending before the Civil

Court and there is an order of status quo in operation passed

by the Civil Court. It also appears that the petitioners are co-

owners of the property where the alleged occurrence is stated

to have taken place. Therefore, mere entry of the petitioners

into the said property would not amount to trespass.

25) A perusal of the Case Diary reveals that although the

Investigating Agency has claimed that they have completed

investigation of the case, yet it has not taken trouble to

investigate the aspect with regard to civil dispute between

the parties regarding the property where the offence is

alleged to have taken place. No investigation in this regard

has been conducted by the respondent Investigating Agency

nor any material has been collected by it to show that the

site of occurrence was in exclusive possession of the

complainant party. In the absence of any such material, it

cannot be stated that the offence under Section 448 of IPC

is made out against the petitioners.

26) The facts and events which have led to the lodging of

impugned FIR leads this Court to the inference that the

complainant has tried to settle a civil dispute between her

and the petitioners by giving it a criminal colour which has

prompted her to lodge the impugned FIR. The Supreme

Court has time and again frowned upon the tendency of

litigants to convert purely civil disputes into criminal cases.

In Md. Ibrahim & ors. v. State of Bihar and Anr, AIR 2010

SC (Supp) 347, the Supreme Court has observed that there

is a growing tendency of complainants attempting to give the

cloak of a criminal offence to matters which are essentially

and purely civil in nature either to apply pressure on the

accused or out of enmity towards the accused or to subject

the accused to harassment. It has been further observed that

the Criminal Courts should ensure that the proceedings

before it are not used for settling scores or to pressurize

parties to settle civil disputes.

27) In the present case, it can reasonably be inferred from

the facts emanating out of the material collected by the

Investigating Agency during investigation of the case and

various orders passed by the Civil, copies whereof have been

placed on record by the petitioners, that there is a serious

dispute going on between the parties with regard to the

property in question. It appears that the complainant, with

a view to settle a civil dispute, has resorted to lodging of

impugned FIR against the petitioners. The same is nothing

but an abuse of process of court which needs to be curbed

by this Court by exercising its power under Section 482 of

the Cr. P. C

28) In view of the foregoing discussion, this Court is of the

considered opinion that the allegations made in the

impugned FIR supported by the material assembled by the

Investigating Agency during investigation of the case, do not

disclose commission of any cognizable offence against the

petitioners and it also appears that the complainant has

lodged the impugned FIR against the petitioners with a view

to coerce them to settle a purely civil dispute at her terms.

Continuance of criminal proceedings against the petitioners,

in these circumstances, would amount to abuse of process

of law.

29) Accordingly, the petition is allowed and the impugned

FIR and the proceedings emanating therefrom are quashed.

30) The Case Diary be returned to learned counsel for the

respondents.

(Sanjay Dhar) Judge SRINAGAR 31.10.2025 "Bhat Altaf"

Whether the judgment is reportable: Yes