HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
ABDULLAH DANISH SHERVANI … PETITIONER(S) Through: – Mr. Dar Khurshid, Advocate.
Vs.
UT of J&K AND ANR. …RESPONDENT(S) Through: – Mr. Sajad Ashraf, GA.
CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
14.03.2022
1) Instant petition has been filed by the petitioner seeking quashment for FIR No.19/2018 for offences under Section 498A RPC registered at Police Station, Nigeen Srinagar, and the consequent criminal proceedings pending before the Court of Special Mobile Magistrate 13th Finance Commission(Sub Judge), Srinagar.
2) The case set up by the petitioner is that he was married to one Mehnaz Siddiqui (the complainant in impugned FIR), who hails from Karachi Pakistan, as per Muslim Personal Law in the year 2009. It is contended that some personal differences and dispute arose between the parties, which ultimately resulted in divorce between the parties on 11.09.2017. It is contended in the petition that the parties filed various
litigations against each other in the form of civil suit, writ petition, petition under Section 488 Cr. P. C and various other criminal complaints besides lodging the impugned FIR against the petitioner, which ultimately culminated into presentation of a charge sheet and the same is pending before the Court of Special Mobile Magistrate 13th Finance Commission(Sub Judge), Srinagar.
3) It seems that during the pendency of all these proceedings, a compromise was arrived at between the parties and, accordingly, a compromise deed dated 17th day of November, 2018, was executed by the parties which has been placed on record and annexed as Annexure-V to the petition. As per this compromise deed, the parties have settled their disputes amicably and have also withdrawn the cases pending between them as they want to live peacefully without involving themselves in further litigation. It is further stated in the compromise deed that the complainant does not want to pursue the impugned FIR.
4) Petitioner has contended that so far as the case arising out of FIR No.19/2018, which is pending before the Court of Special Mobile Magistrate 13th Finance Commission(Sub Judge), Srinagar, is concerned, the same could not be compounded because the offence of which cognizance has been taken by the learned Court against the petitioner is non-compoundable in nature. It is in these circumstances that the
petitioner has approached this Court for seeking quashment of the aforesaid FIR and the criminal proceedings arising there from.
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5) I have heard learned counsel for the parties and perused the record of the case.
6) So far as the facts alleged in the petition, particularly those pertaining to the compromise arrived at between the parties in terms of compromise deed dated 17th November, 2018, are concerned, the same are not disputed.
7) 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 (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
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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..”
8) 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:
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(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.
(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
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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.
(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.
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9) 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.
10) Adverting to the facts of the instant case, it is clear that the parties to the matrimonial dispute i.e., petitioner and the complainant, 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/compounded. Merely because the offences under Section 498A RPC, for which petitioner is facing trial on the basis of the complaint made by the complainant, is non compoundable, if an end is not put to the criminal proceedings, it would amount to grave injustice to the petitioner 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 petitioner, in these circumstances, will be nothing but an abuse of process of law.
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11) Taking conspectus of the aforesaid discussion, the petition is allowed. Accordingly, FIR No.19/2013 for offences under Section 498A RPC registered at Police Station, Nigeen, Srinagar, and the consequent proceedings emanating there from and pending before the Court of Special Mobile Magistrate 13th Finance Commission(Sub Judge), Srinagar, are quashed.
12) Petition shall stand disposed of along with connected CMs.
13) Copy of this order be sent to the Court of learned Special Mobile Magistrate 13th Finance Commission(Sub Judge), Srinagar, for information.
(Sanjay Dhar)
Judge
Srinagar
14.03.2022
“Bhat Altaf, PS”
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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