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2019 DIGILAW 133 (JK)

Jaswinder Singh v. State

2019-03-18

SINDHU SHARMA

body2019
JUDGMENT : Sindhu Sharma, J. 1. Petitioners and respondent No. 2, that is, private parties to this petition are related to each other, while Jaswinder Singh is the husband of Achint Kaur respondent No. 2, whereas petitioner Nos. 2 and 3 are parents of petitioner No. 1 and also mother-in-law and father-in-law of respondent No. 2. 2. It appears that petitioner No. 1 and his wife respondent No. 2 had stained relations on account of which they were living separately for nearly 06 years. During this period respondent No. 2 has been living with her parents in Channi Himmat. The admitted case of the parties is that both husband and wife have been living separately for more than five-six years due to strained relations, on a report by respondent No. 2 FIR No. 28/2013 was registered in Police Station, Women Cell, Gandhi Nagar, Jammu under Sections 498-A/109 RPC and a challan has been produced in the court of learned Special Mobile Magistrate, (Passenger Tax) Jammu. 3. During the pendency of this case some relations appear to have prevailed upon the parties to reach a settlement on the basis of which an application under section 15 of Jammu and Kashmir Hindu Marriage Act, 1980 for dissolution of marriage and decree of divorce has been filed. Petitioner No. 1 has deposited Rs. 8,50,000/- with the learned Additional District Judge (Matrimonial Cases), Jammu being the alimony, and some amount was kept in fixed deposit for the minor child Maureen Kour, daughter born out of the wedlock. 4. The short submission of the parties is that in view of the settlement having been arrived between the parties FIR and the proceedings initiated on the basis of the challan pending in the court of learned Special Mobile Magistrate Passenger Tax be quashed. 5. The learned counsel appearing on behalf of the petitioners has placed reliance on the following judgments of Hon'ble Supreme Court in support of the plea that the proceedings pending in the Court of Special Mobile Magistrate, Passenger Tax be quashed; "(i) 2003 (2) JKJ 439 [SC] B.S. Joshi & Ors. v. State of Haryana & Anr., (2003) 4 SCC 675 (ii) Arvind Barsaul & Ors. v. State of M.P. & Anr., (2008) 5 SCC 794 (iii) Shiji v. Radhika (2011) 10 SCC 705 " 6. v. State of Haryana & Anr., (2003) 4 SCC 675 (ii) Arvind Barsaul & Ors. v. State of M.P. & Anr., (2008) 5 SCC 794 (iii) Shiji v. Radhika (2011) 10 SCC 705 " 6. In first case of B.S. Joshi (supra) in para-14 their lordships were pleased to hold that by not quashing the proceedings the object of section 498-A would be defeated by observing as under; "There is no doubt that the object of introducing Chapter XX-A containing Section 49.8A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband-Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counterproductive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code." The Hon'ble Apex Court quashed the proceedings holding that the High Court has the power to quash criminal proceedings or FIR or complaint under section 482 of the Central Criminal Procedure Code (Cr.P.C.) which corresponds to Section 561-A of the State Criminal Procedure Code (Cr.P.C.). 7. Similarly in case of Arvind Barsaul (supra) in which the husband was convicted under section 498-A IPC for 18 months, their lordship quashed the proceedings against the appellant by holding in para-10 whereof as under; "We have heard learned counsel for the parties at length. The parties have compromised and the complainant Smt. Sadhna Madnawat categorically submitted that she does not want to prosecute the appellants. Even otherwise also, in the peculiar facts and circumstances of the case and in the interest of justice, in our opinion, continuation of criminal proceedings would be an abuse of the process of law. We, in exercise of our power under Article 142 of the Constitution, deem it proper to quash the criminal proceedings pending against the appellants emanating from the FIR lodged under section 498-A IPC. The appeal is accordingly disposed of." 8. We, in exercise of our power under Article 142 of the Constitution, deem it proper to quash the criminal proceedings pending against the appellants emanating from the FIR lodged under section 498-A IPC. The appeal is accordingly disposed of." 8. In case of Shiji (supra), para-17 of the judgment speaks of the inherent powers of the High Court in case of non-compoundable cases, it is apt to reproduce the same as under; "It is manifest that simply because an offence is not compoundable under Section 320 Cr.P.C. is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of, a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based oh a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C." Finally, the appeal was allowed and the order passed by the High Court and proceedings pending in the court of learned First Class, Neyyattinkara were quashed. For facility of reference, para-20 of the judgment is also produced reproduced below; "We accordingly allow this appeal, set aside the impugned order passed by High Court and quash prosecution in CC 183/2010 pending in Court of Judicial Magistrate, First Class, Neyyattinkara." 9. For facility of reference, para-20 of the judgment is also produced reproduced below; "We accordingly allow this appeal, set aside the impugned order passed by High Court and quash prosecution in CC 183/2010 pending in Court of Judicial Magistrate, First Class, Neyyattinkara." 9. Since wife in this case is the principle witness and she is not willing to prosecute this case against the petitioners, therefore, by applying principles laid down in the above mentioned cases, it is in the interest of justice to quash the proceedings pending in the Court of learned Special Mobile Magistrate Passenger Tax, Jammu, so that the petitioner No. 1 and respondent No. 2 can settle in life at this age. 10. Accordingly, this petition is allowed and criminal proceedings pending in the court of learned Special Mobile Magistrate Passenger Tax, Jammu are quashed.