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2003 DIGILAW 239 (JK)

Brij Mohan Rana v. State Of J. &K.

2003-08-18

Y.P.NARGOTRA

body2003
This is a petition of husband and wife who are invoking the powers of this court vested under Section 561-A Cr.P.C. for quashing the challan and proceedings pending in the court of learned Sessions Judge Jammu. 2. Put briefly the petitioners have stated in the petition that Mst.Manisha Sharma, petitioner No. 2 who is about 22 years of age, a major and competent to enter into a marriage bond and with the free will and on her own she married with Brij Mohan Rana the petitioner No. 1, according to Hindu rites in Arya Samaj Mandir Udhampur on 10.04.2003 after executing a marriage agreement on 09.04.2003. It has also been averred by the petitioners that father of the petitioner No. 2 being not in favour of the said marriage however lodged FIR No. 68 of 2003 alleging abduction etc. of his daughter the petitioner No. 2 which has culminated into filing of the charge sheet against petitioner No. 1 for commission of the offences under sections 366/376 RPC and the same is pending trial before the court of learned Sessions Judge Jammu. 3. With the petition the matriculation certificate of the petitioner No. 2 filed indicates her date of birth as 03.08.1981. The marriage certificate issued by Arya Samaj evidences the interse marriage of the petitioners. The affidavit in support of the averments of the petitioner has also been filed. 4. In the above said backdrop question arising for consideration is whether in the given circumstances this court should exercise jurisdiction under 561_A Cr.P.C. and quash the challan or allow the prosecution of the petition No. 1 to continue. 5. In the present case the petitioners have jointly approached this court. The petitioner No. 2 indisputably is a major and under law competent to marry a person out of her free will and choice. Both of them claim to have married each other accordin gto Hindu rites. It is indicative of the fact that petitioner No. 2 on her free will went away with petitioner No. 2. Both of them jointly have stated in this petition that they are living together as husband and wife and have also admitted the same in the open court during the course of hearing. 6. It is indicative of the fact that petitioner No. 2 on her free will went away with petitioner No. 2. Both of them jointly have stated in this petition that they are living together as husband and wife and have also admitted the same in the open court during the course of hearing. 6. It will be apt here to take into consideration what was said by their Lordships of the Supreme Court in 2003(2) JKJ 439(B.S.Joshi and Ors v. State of Haryana and Anr.) in paras 10, 11, 12 & 13 which is being reproduced : "10. In State of Karnataka v L.Munishwamy & Ors., (1977)2 SCC 699 considering the scope of inherent power of quashing under section 482, this court held that in the exercise of this wholesome power the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was observed that in a criminal case the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceedings in the interest of justice and that the ends of justice are higher than the ends of mere law though justice has got to be administered according to law made by the legislature. This court said that the compelling necessary for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts it was also noticed that there was no reasonable likelihood of the accursed being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in `negative. It would however be different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bonafides. 11. In Madavrao Jiwajirao Schindia and Ors. v. Sambhajirao Chjanderajirao Angre & Ors., (1988) 1 SCC 692, it was held that while exercising inherent power of quashing under section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where in the opinion of the Court, chances of an ultimate conviction is bleak and therefore no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings. 12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes. 13. The observations made by this court though in a slightly different context in G.V. Rao v. LHV Prasad & Ors. 12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes. 13. The observations made by this court though in a slightly different context in G.V. Rao v. LHV Prasad & Ors. (2000)3 SCC 693 are very apt for determining the approach required to be kept in view in matrimonial disputes by the courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heineous crimes in which elders of the family are also involved with the result that those who could have counseled and brought about reapproachment are rendered helpless on their being arrayed as accused in the criminal case. There are may other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and that process the parties lose their "young" days in chasing their "cases" in different courts." 7. In the case before me in view of the categories stand taken by the girl there is no reasonable likelihood of the conviction of the accused (petitioner No. 1) of the offences alleged to have been committed by him. What would happen to the case of the prosecution if the girl does not support the allegations made in the FIR especially when even the FIR has not been lodged by the girl but by her father. 8. Mr.Salathia has learned AAG has argued that even though the petitioners have jointly claimed that they are living together as husband and wife and that the petitioner No. 2 of her own free will has conducted marriage with petitioner No. 1, the FIR and consequent challan cannot be quashed u/s 561-A Cr.P.C. because the evidence collected during investigation prima facie discloses the commission of the offence. In AIR 2002 SC 671, their lordships have observed:-- "Exercise of power under Sec.482 of the Code in a case of this nature is the exception and not the rule. In AIR 2002 SC 671, their lordships have observed:-- "Exercise of power under Sec.482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercise, namely (i) to give effect to an order under the Code (ii) to prevent abuse of process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts whether civil, or criminal, possess in the absence of any express provision as inherent in their constitution, al such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedefre videtur et id since quo res impsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist. While exercising powers under the section 482 Cr.P.C the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the court has power to prevent abuse. It would be an abuse of process of the court to allow any action, which would result in injustice and prevent promotion of justice. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the court has power to prevent abuse. It would be an abuse of process of the court to allow any action, which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process fo court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 9. Therefore, the power vested u/s 561-A Cr.P.C. can very well be exercised in the case where ends of justice so demand. In our tradition bound society generally love affairs and marriages are not the accepted norms and go well with psyche of the older generation, yet the fact remains that law gives freedom of marriage with a person of ones choice to those who are competent to marry. Therefore, such persons do not deserve to be treated like ordinary criminals. Once the court is satisfied that the accused and prosecutrix were competent to marry under law and have conducted marriage with their free will, the court must not hesitate to quash the criminal proceedings by exercising its inherent powers. In these circumstances in my considered opinion the powers be exercised in the present case, so as to save the newly weds, from the agony of the case in courts for facing the trial. 10. For the above said reasons the challan entitled State v. Brij Mohan Rana for offences under sections 366/376 RPC pending in the court of learned Sessions Judge, Jammu, alongwith the proceedings taken by the trial court, is hereby quashed.