S. No.

1
Regular List
HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) No. 125/2020

Mohammad Ismail Koka …Petitioner(s)

Through: Mr. Shahbaz Sikander, Advocate.
Vs.
UT of J&K through Commissioner ...Respondent(s)
Secretary to Govt, Home Department.

Through: Mr. Mubashir Majid Malik, Dy. AG for R-1 and R-2.
None for respondent No. 3
CORAM:

HON’BLE MR JUSTICE MOHD YOUSUF WANI, JUDGE

ORDER
18.03.2025

1. Through the medium of the instant petition filed under Section 482 of

the Code of Criminal Procedure, 1973 (now repealed and replaced by

Bhartiya Nagarik Suraksha Sanhita, 2023 but applicable in the case and

hereinafter referred to as the “Code” for short), the petitioner has sought

the quashment of the FIR bearing No. 100 of 2020, dated 29.07.2020

registered with the Police Station, Zaipora Shopian under Sections 452

and 376B on the grounds, inter alia, that he has been falsely and

frivolously implicated in the impugned case FIR when he is innocent and

has not committed the alleged crime; that lodgement of the impugned FIR

is just an afterthought and the case is purely concocted, fabricated,

baseless and manufactured aimed at to settle personal scores with him;

that actually he entered into a marriage agreement with the

complainant/respondent No. 3 on 10-12-2017, which was followed by the

performance of Nikah Ceremony on 29th October, 2018; that subsequently

on 06.12.2018, he along with the respondent No. 3 approached this Court

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 through a petition bearing OWP No. 2296/2018 seeking protection which

was granted; that subsequently the respondent No. 3/complainant went to

her parental home and her parents counselled and pressurised her to

abstain from his matrimonial company so much so that a Khula Nama was

drafted on which he was forced to sign on 10.07.2020; that subsequently

on 29th July, 2020, the respondent No. 3 was made to lodge a complaint

against him in the Police Station Zainpora Shopian leading to the

registration of impugned case FIR No. 100 of 2020 under Sections 452

and 376B IPC against him which is outcome of the abuse of the powers of

the police concerned, thus deserving to be quashed in the ends of justice.

2. I have heard the learned counsel for the petitioner and the learned

Deputy Advocate General for respondents 1 and 2.

3. The learned counsel for the petitioner submitted that during the

pendency of the instant petition, the petitioner/accused and the respondent

No.3/complainant (victim) have entered into a mutual settlement and have

also executed a formal compromise deed dated 13.09.2022 which has

been placed on record of the petition after permission of the Court. He

submitted that as per the terms of the compromise, the parties have agreed

that their marriage stands dissolved through mutual settlement otherwise

called Khula; that their statements also stand recorded by the Registrar

Judicial of this Court pursuant to the Court order dated 27.09.2022; that in

their statements recorded before the Registry, they have admitted the

contents of the compromise deed.

4. The learned counsel further contended that this Court has got

extraordinary powers in terms of the provisions of Section 482 of theCode

to quash the impugned FIR as the same has become desirable rather

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 justified in the facts and circumstances of the case. The learned counsel

submitted that the power of this Court under Section 482 of the Code is

not subject to the provisions of Section 320 of the Code providing for

compounding of some offences. He submitted that the Hon’ble Apex

Court has allowed the quashment of the FIR and consequent criminal

proceedings by invoking the inherent jurisdiction vested in the High

Courts, in justified circumstances, where matrimonial disputes are

amicably settled between the complainant/victim and the accused, so as to

meet the ends of justice.

5. The learned counsel in support of his arguments placed reliance on the

authoritative judgments of the Hon’ble Apex Court cited as “Parbatbhai

Aahir Alias Parbatbhai Bhimsinhbhai Karmur and Ors vs State of Gujarat

and Anr. (2017) 9 SCC 641” and “Kapil Gupta Vs. State (NCT of Delhi)

and Anr 2022 15 SCC 44”.

6. The learned State Counsel, Mr. Mubashir Majid Malik, Dy. AG,

however, submitted that since the impugned FIR has been registered under

Sections 452 and 367B of the Indian Penal Code which offences are non-

compoundable, as such, the petition does not deserve to be allowed. He

submitted that allowing the quashment of the criminal proceedings on the

mere pretext of an amicable settlement between the accused and the

complainant is likely to cause miscarriage of justice.

7. In the backdrop of the mutual settlement of the dispute between the

petitioner/accused and the respondent No.3/complainant, this Court is of

the opinion that it may meet the ends of justice in case the FIR in question

bearing No. 100 of 2020 registered with Police Station, Zainpora Shopian

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 is quashed as the same shall facilitate the peaceful and cordial relation

between the two parties and their respective families in future.

8. Although this Court is of the opinion that an FIR cannot be generally

and in routine manner allowed to be quashed in exercise of the powers

under Section 528 of BNSS corresponding to Section 482 of the Code on

the main ground that the parties have settled their controversy that had

become the cause of occurrence, yet exceptional ground appears to be

made out in the opinion of the Court, in the facts and the circumstances of

the case, for invoking its extraordinary powers under Section 528 of

BNSS to quash the FIR in question.

9. The provisions of Section 359 of the BNSS corresponding toSection

320 of the Code do not restrict but limit and circumvent the powers of this

Court under Section 528 of the BNSScorresponding toSection 482 of the

Code regarding quashment of FIR’s and criminal proceedings for the sake

of the society at large which is real beneficiary of the criminal justice

delivery system.

10. This Court in its opinion feels fortified with an authoritative judgment

of the Hon’ble Apex Court cited as “Gopal Kumar B. Nar Vs. CBI

(2014) 5 SCC 800”in which it has been held that “though quashment of

non-compoundable offence under Section 482 CrPC, following a

settlement between the parties would not amount to circumvention of

Section 320, but such power has to be exercised with care and caution and

would depend on facts of each case.”

11. The Hon’ble Supreme Court in “Parbatbhai Aahir Alias Parbatbhai

Bhimsinhbhai Karmur and Ors vs State of Gujarat and Anr. (2017) 9

SCC 641” relied upon by the learned counsel for the petitioner, has

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 considered the aspect of the invocation of the inherent powers by the High

Courts under Section 528 of the BNSS corresponding to Section 482 of

the Codeand was pleased to lay down some broad governing principles for

invocation of such power of the High Courts. The relevant portions of the

judgment are reproduced as under for the sake of convenience:

“Section 482 is prefaced with an overriding provision. The statute

saves the inherent power of the High Court, as a superior court, to
make such orders as are necessary (i) to prevent an abuse of the
process of any court; or (ii) otherwise to secure the ends of justice.
The broad principles which emerge from the precedents on the
subject, may be summarised in the following propositions:

(i) Section 482 preserves the inherent powers of the High

Court to prevent an abuse of the process of any court or
to secure the ends of justice. The provision does not
confer new powers. It only recognises and preserves
powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to
quash a First Information Report or a criminal
proceeding on the ground that a settlement has been
arrived at between the offender and the victim is not the
same as the invocation of jurisdiction for the purpose of
compounding an offence. While compounding an offence,
the power of the court is governed by the provisions of
Section 320 of the Code of Criminal Procedure, 1973.
The power to quash under Section 482 is attracted even
if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or
complaint should be quashed in exercise of its
jurisdiction under Section 482, the High Court must
evaluate whether the ends of justice would justify the
exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide
ambit and plenitude it has to be exercised; (i) to secure
the ends of justice or (ii) to prevent an abuse of the
process of any court;
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 (v) The decision as to whether a complaint or First
Information Report should be quashed on the ground
that the offender and victim have settled the dispute,
revolves ultimately on the facts and circumstances of
each case and no exhaustive elaboration of principles
can be formulated;
(vi) In the exercise of the power under Section 482 and while
dealing with a plea that the dispute has been settled, the
High Court must have due regard to the nature and
gravity of the offence. Heinous and serious offences
involving mental depravity or offences such as murder,
rape and dacoity cannot appropriately be quashed
though the victim or the family of the victim have settled
the dispute. Such offences are, truly speaking, not private
in nature but have a serious impact upon society. The
decision to continue with the trial in such cases is
founded on the overriding element of public interest in
punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be
criminal cases which have an overwhelming or
predominant element of a civil dispute. They stand on a
distinct footing in so far as the exercise of the inherent
power to quash is concerned;
(viii) Criminal cases involving offences which arise from
commercial, financial, mercantile, partnership or similar
transactions with an essentially civil flavour may in
appropriate situations fall for quashing where parties
have settled the dispute;
(ix) In such a case, the High Court may quash the criminal
proceeding if in view of the compromise between the
disputants, the possibility of a conviction is remote and
the continuation of a criminal proceeding would cause
oppression and prejudice; and
(x) There is yet an exception to the principle set out in
propositions (viii) and (ix) above. Economic offences
involving the financial and economic well-being of the
state have implications which lie beyond the domain of a
mere dispute between private disputants. The High Court

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 would be justified in declining to quash where the
offender is involved in an activity akin to a financial or
economic fraud or misdemeanour. The consequences of
the act complained of upon the financial or economic
system will weigh in the balance.

12. It is also needful to reproduce the relevant portion of the law laid

down by Hon’ble Supreme Court in “Kapil Gupta Vs. State (NCT of

Delhi) and Anr 2022 15 SCC 44” also referred to by the learned counsel

for the petitioner, on an appeal, impugning the judgment and order dated

28.09.2021 passed by the learned Single Judge of the High Court of Delhi

thereby dismissing the criminal petition, which was filed for quashing the

criminal proceedings, as under:

(i) In present case, consent given by respondent No. 2 for

putting an end to proceeding was voluntary and without
any coercion and duress. Respondent No. 2, in order to
live in peace, wants to bring an end to criminal
proceedings.
(ii) Though court should be slow in quashing proceedings
wherein heinous and serious offences are involved. High
Court is not foreclosed from examining as to whether
there exists material for incorporation of such offences
or as to whether there is sufficient evidence which if
proved would lead to proving for offence charged with.
(iii) Court has also to take into consideration as to whether
settlement between the parties is going to result in
harmony between them which may improve their mutual
relationship.
(iv) It is also relevant to consider as to what is the stage of
proceedings. If application (for quashing proceedings) is
made at belated stage wherein evidence has been led and
matter is at stage of arguments or judgment, Court
should be slow to exercise power to quash proceedings.
However, if such application is made at initial stage
before commencement of trial, said factor will weight
with Court in exercising its power.

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 (v) In present case, facts and circumstances are peculiar.
Respondent 2 is young lady of 23 years. She feels that
going through trial in one case, where she is
complainant, and in other case, wherein she is accused,
would rob prime of her youth. She feels that if she is
made to face trial rather than getting any relief, she
would be faced with agony of undergoing trial.
(vi) In both aforesaid cases, though charge-sheets have been
filed, charges are yet to be framed and as such, trial has
not yet commenced. It is further to be noted that since
Respondent 2 herself is not supporting prosecution case,
even if criminal trial is permitted to go ahead, it will end
in nothing else than acquittal. If request of parties is
denied, it will be amounting to only adding one more
criminal case already overburdened criminal courts.
(vii) In that view of the matter, though in heinous or serious
crime like rape, Court should not normally exercise
powers of quashing proceedings, in peculiar facts and
circumstances of present case and in order to give
succour to respondent 2 so that she is saved from further
agony of facing two criminal trials, one as victim and
one as accused, present is a fit case wherein
extraordinary powers of Supreme Court be exercised to
quash criminal proceedings.
(viii) In that view of the matter, proceedings in criminal cases
arising out of both aforesaid FIR’s are quashed and set
aside.

13. This Court in its opinion also feels fortified with the authoritative

judgments of the Hon’ble Apex Court cited as “Gyan Singh Vs. State of

Punjab (2012) 10 SCC 303 and “Narender Singh Vs. State of Punjab

(2014) 6 SCC 466”, the relevant paras of which are reproduced as

hereunder for the sake of convenience:

“Gian Singh Vs. State of Punjab (2012) 10 SCC 303”

61. “In other words, the High Court must consider

whether it would be unfair or contrary to the interest of

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 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
proceedings.”

“Narender Singh Vs. State of Punjab (2014) 6 SCC

466”

29. “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: 29.1 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; 29.2 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.
29.3 Such a power is not be exercised in those
prosecutions which involve heinous and serious offences

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 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.”

14. Having regard to the amicable settlement of the dispute between the

petitioner/accused and the complainant/respondent No. 3, the continuance

of the criminal proceedings sought to be quashed appears to be a futile

exercise,for just completing the procedure for recording an order of

acquittal. In its opinion, this Court is fortified with the law laid down by

Hon’ble Supreme Court in, (i) Satesh Nehra V/S Delhi Administration

1996 (III) Crimes 85 SC; (ii) Madan Mohan Abott Vs. State of Punjab

AIR 2008 SC 1969’ and (iii) JugdishChananan and ors Vs. State of

Haryana and anr. AIR 2008 SC 1968.

Relevant Paras of the referred judgments deserve a needful mention

as under:

“Satesh Nehra V/S Delhi Adminstration 1996 (III)

Crimes 85 SC.”

“But when the judge is fairly certain that there is

no prospect of the case, ending in conviction, the valuable
time of the court should not be wasted for holding a trial
only for purpose of formally completing the procedure to
pronounce the conclusion at a future date. Most of the
Sessions Courts in India are under heavy pressure of work
load. If the Sessions Judge is almost certain, that the trial
would be only an exercise in futility or sheer wastage of
time, it is advisable to truncate or swap the proceedings.”

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 “(ii) Madan Mohan Abott Vs. State of Punjab,
AIR 2008 SC 1969”

“In disputes where the question involved is of a

purely personal nature the court should ordinarily accept
the terms of compromise even in criminal proceedings
keeping the matter alive with no possibility of a result in
favour of the prosecution in a luxury, which the courts,
grossly overburdened as they cannot afford and that the
time so save can be utilized in deciding more effective and
meaningful litigation.”

“(iii) JugdishChananan and ors Vs. State of

Haryana and anr AIR 2008 SC 1968”

“In the light of the compromise it is unlikely that

the prosecution will succeed in the matter. We also see
that the dispute is a purely personal one and no public
policy is involved in the transaction that had been entered
into between the parties. To continue with the
proceedings, therefore, would be a futile exercise we
accordingly allow the appeal and quash FIR 83/12.3.2001
P/S City Sonapat and on subsequent proceedings.”

15. The Hon’ble Apex Court has permitted the compounding of the

offences even at the appellate stage having regard to the mutual settlement

between the contesting parties and the nature of the offences involved in

the proceedings being personal in nature “[Mulukri Sira Prassad Vs. State

of Andra Pradesh 2001 (4) SC 254, Khursheed and Anr. Vs. State of UP

and anr. 2007 and Ab. Sattar Vs. State of M.P AIR 1981 SC 1775].”

16. Allowing the complainant/victim and the accused in a criminal

proceeding at any stage of investigation, trial or appeal to seek quashment

of the proceedings or the compounding of the offences even in cases

where commission of non-compoundable offences of personal nature not

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 involving public/social aspect is alleged, on the basis of amicable

settlement, is not likely to prove detrimental to the scope and object of the

provisions of Section 359 of the BNSS corresponding to Section 320 of

the Code. Such an approach is likely to put an end to some further

apprehended litigation of both civil and criminal nature and to allow the

parties to have a peaceful and cordial relation, besides saving the precious

time of the Criminal Courts being already grossly over-burdened as the

continuance of such criminal proceedings is likely to prove a futile

exercise only for the purpose of completing the procedure for recording an

order of acquittal at the end. Provisions of Section 320 of the Code

corresponding to Section 359 of the BNSS do not restrict but only limit

the powers of this Court under Section 482 of the Code corresponding to

Section 528 of BNSS so that the extraordinary powers are used only in

exceptional circumstances to meet the ends of justice. Provisions of

Section 482 of the Code (528 of BNSS) have an overriding affect and are

not to be read as subject to the provisions of Section 320 of the Code (359

of BNSS). The criminal proceedings, involving heinous offences of anti-

social nature or offences under special penal statutes do not qualify for

being quashed/compounded in exercise of the powers under Section 482

of the Code (528 BNSS).

17. Criminal litigation between near relatives or co-sharers more often

originates from the civil/matrimonial disputes and as such directing the

quashment of proceedings by invoking the inherent powers under the

Code/BNSS, in such matters of personal nature not involving the

commission of any heinous offence is likely to meet the ends of justice.

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 18. It is needful to mention that the investigation process in the impugned

case FIR remained stayed under the interim court orders passed w.e.f.,

18.08.2020.

19. For the foregoing discussion, the instant writ petition is allowed and

the FIR bearing No. 100 of 2020 dated 29.07.2020, registered with Police

Station, Zainpora Shopian, under Sections 452 and 376B of IPC, along

with any subsequent criminal proceedings is quashed.

20. Disposed of.

(MOHD YOUSUF WANI)

JUDGE
SRINAGAR
18.03.2025
‘’Shahid-SS’’

Whether the order is speaking? Yes.

Whether the order is reportable in law journal? Yes.

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