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2022 DIGILAW 63 (JK)

Masood Ahmad Choudhary v. State of J&K

2022-02-22

SANJAY DHAR

body2022
JUDGMENT : Sanjay Dhar, J. The instant petition has been filed by the petitioners seeking quashment of criminal challan titled “State vs. Masood Ahmad Choudhary and Ors” arising out of FIR No.123/2014 registered against the petitioners at Police Station, Bahu Fort for offences under Sections 307, 498-A and 109 RPC. 2. Briefly put, the case set up by the petitioners is that on 10.06.2012, the petitioner No.1 was married to respondent No.2 as per Muslim rites and customs and out of the said wedlock, one female child, namely, Arisha, was born on 05.08.2013. It is contended that immediately after the marriage, some differences arose between the parties, which resulted in lodging of FIR No.123/2014 against petitioners No.1 and 3 to 6 at Police Station, Bahu Fort, wherein it was alleged that petitioner No.1 has administered dhatura poison to the private respondent. After investigation, the FIR culminated in presentation of the challan before the Court of 1st Additional Sessions Judge, Jammu. During the investigation and pendency of the challan, respondent No.2 filed applications under Section 12 and 23 of the J&K Protection of Women from Domestic Violence Act and a petition under Section 488 of Cr. P. C before the Court of Judicial Magistrate 1st Class (Munsiff), Jammu. A suit for dissolution of the marriage was also filed before the Court of Sub-Judge, Jammu. 3. It is further averred that during pendency of the aforementioned challan/proceedings, petitioner No.1 and respondent No.2, for the betterment of minor child and also in view of their advancing age, settled all their differences by executing a mutual divorce deed dated 22.08.2018, and pursuant thereto, respondent No.2 withdrew applications under Section 12 and 23 of the Domestic Violence Act as also the petition under Section 488 of Cr. P. C, that were pending before the Court of Judicial Magistrate Ist Class (Munsiff), Jammu. 4. The petitioners have contended that since the parties have settled all the issues, therefore, continuance of the proceedings in the criminal challan case arising out of FIR No123/2014 is not in the interest of the complainant i.e. respondent No.2 and the alleged accused i.e. petitioner No.1. It is also averred that so far as the criminal challan is concerned, the same could not be compounded because some of the offences disclosed therein are non-compoundable in nature. It is also averred that so far as the criminal challan is concerned, the same could not be compounded because some of the offences disclosed therein are non-compoundable in nature. It is in these circumstances that the petitioners have approached this Court for seeking quashment of the criminal challan and the proceedings arising there from. 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 settlement arrived at between the parties in terms of divorce deed (supra), are concerned, the same are not in dispute. 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. 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 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., (2014) 6 SCC 466 , has laid down guidelines for quashing of criminal proceedings. The guidelines are reproduced as under: “31. Similarly, the Supreme Court in the case titled Narinder Singh & Ors. Vs. State of Punjab & Anr., (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: (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. (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 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. 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. 9. 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. 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 No.1 and respondent No.2 have entered into a settlement that has been acted upon by the parties, inasmuch as the cases lodged by the parties against each other have been withdrawn/compounded. Merely because some of the offences i.e. offences under Sections 307 and 498-A RPC, for which petitioners are facing trial on the basis of the complaint made by respondent No.2, are non-compoundable, if an end is not put to the criminal proceedings, it would amount to grave injustice to the petitioners 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 petitioners, in these circumstances, will be nothing but an abuse of process of law. 11. Even though offence under Section 307 RPC is of a heinous nature but in the instant case a perusal of the challan and the medical report of the victim would show that requisite tests for ascertaining whether she was administered poison (dhatura) were not undertaken as the attendants of the victim did not permit the doctors to undertake such tests. Thus, in the instant case, virtually there is no material on record of the challan to show that there was an attempt on the part of the petitioners to kill the victim. Thus, in the instant case, virtually there is no material on record of the challan to show that there was an attempt on the part of the petitioners to kill the victim. Thus, offence under Section 307 RPC is, otherwise not made out against the petitioners. In this view of the matter, there is no legal impediment in quashing the proceedings against the petitioners even in respect of the offence under Section 307 RPC. 12. Taking conspectus of the aforesaid discussion, the petition is allowed. Accordingly, criminal challan titled “State vs. Masood Ahmad Choudhary and Ors” arising out of FIR No.123/2014 registered against the petitioners at Police Station, Bahu Fort, for offences under Sections 307, 498-A and 109 RPC, and the consequent proceedings emanating therefrom, are quashed.