Jammu & Kashmir High Court
Divinder Kour & Anr vs Ut Of J&K on 9 August, 2023
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) no. 808/2022
Divinder Kour & anr ....Petitioner(s)
Through :- Mr Vishal Kapur, Advocate.
V/s
UT of J&K ....Respondent(s)
Through :-
Coram: HON‟BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
1. Through the present case, this Court is seizing an occasion and opportunity to examine the legal position that it is not possible/feasible for a complainant wife and an accused husband in a given criminal case under trial for the commission of offence under section 498-A Indian Penal Code and other related offences, to join together and call upon the Public Prosecutor conducting the prosecution to exercise his authority to withdraw from the prosecution so as to sub-serve the interest of justice when a complainant/wife amicably reconciles her matrimonial differences and grievances with and against her accused husband and his relatives thereby intend to end the criminal case 2 CRM(M) no. 808/2022 initiated upon her complaint/first information report before the very criminal court seized of the trial of the case.
2. By filing the present petition invoking the inherent power of this court available under Section 482 of the Code of Criminal Procedure, 1973 (in short, „CrPC‟), the petitioners no. 1 and 2, being wife and husband, have joined together for seeking quashment of a criminal case under trial, based upon the police report no. 57 of 2020 submitted by the Police Station, Janipur, Jammu, against the petitioner no. 2- husband and his relatives, for alleged commission of offences under section 498-A and 406 Indian Penal Code (in short 'IPC') which is pending trial before the Court of Municipal Magistrate, Jammu.
3. It is an FIR no. 64 of 2020 dated 19.08.2020 registered by the Police Station, Janipur, Jammu that resulted in presentation of a final Police Report no. 57 of 2020 dated 30.12.2020 under section 498-A and 406 IPC against the named accused who being the petitioner no. 2 (husband) and his relatives before the court of Municipal Magistrate Jammu.
4. The alleged commission of offences had occasioned from the matrimonial relationship obtaining between the petitioners on account of the marriage solemnized between them on 03.11.2019 at Amritsar and out of which no issue came to be born to the petitioner no. 1.
5. In this state of matrimonial discord, a course of cross litigation came to be set into effect against each other by the petitioners, some of which 3 CRM(M) no. 808/2022 got initiated in Jalandhar being the place of the parental residence of the petitioner no. 2 (Husband) and in Jammu being the parental place of the petitioner no. 1 (Wife).
6. During the pendency of the aforesaid proceedings, better sense prevailed to the petitioners and their respective relatives to amicably end the acrimony afflicting both sides and to let the petitioners opt for a marital separation in an amicable manner so as to relieve each other from the burden of matrimonial bond and burden.
7. This resulted in presentation of a petition for dissolution of marriage by decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 before the Principal Family Court, Jammu. This petition came to be presented by the petitioners on 05.02.2022 in terms whereof the petitioners came to settle modalities of their separation to end their marriage and one of the outcomes of the said mutual understanding is to end said criminal case going on against the petitioner no. 2-husband and his family members before the Court of Municipal Magistrate, Jammu.
8. It is for this purpose that the petitioners were constrained to approach this Court with the present petition for seeking quashment of the aforesaid criminal case having no other option and forum at their disposal to end the aforesaid criminal case particularly by making a plea to the trial court of Municipal Magistrate, Jammu given the fact that while the offence under section 406 IPC though compoundable at 4 CRM(M) no. 808/2022 the instance of the complainant, that being the petitioner no. 1-wife, requiring the permission of the criminal court seized of the trial but the offence under section 498-A IPC being non-compoundable leaves no option for trial court to entertain the settlement arrived at between the parties and end the criminal case mid way so as to set them free from the rigmarole of litigation.
9. This Court has examined the parties present in person along with their respective counsel. This Court is satisfied that both the petitioners have amicably settled their differences and have acted upon the compromise so effected between them and as such, this Court is accepting the present petition and is hereby quashing the criminal case so pending trial before the court of Municipal Magistrate, Jammu with respect to final Police Report no. 57 of 2020 dated 30.12.2020 of the Police Station, Janipur, Jammu.
10. Before parting with this judgment, this Court is constrained to take a cognizance that in cases where husbands and wives are suffering matrimonial litigation and also criminal litigation in the context of offence under Section 498-A IPC and other related offences and reside at such places and courts which are far away from easy reach to this Court, be it Jammu wing or Srinagar wing, then for them to seek quashment of a criminal case under Section 498-A IPC and other related offences in the wake of an amicable settlement between them is a matter of great expense, both in terms of money and energy, 5 CRM(M) no. 808/2022 constraining them to journey to this Court and ask for the last ritual of ending the criminal litigation so going on at the instance of one against other.
11. It is in this scenario that this court sees a positive role amounting to an obligation resting upon the Public Prosecutor, conducting the prosecution before the concerned court to exercise his authority vested under Section 321 of the Code of Criminal Procedure, 1973 (Cr.P.C in short) pertaining to withdrawal from prosecution so as to end the given criminal case in that very court itself rather than getting the reconciliating parties to make a call to this court for getting needful done by seeking exercise of jurisdiction under section 482 Cr.P.C .
12. Section 321 of the Code of Criminal Procedure, 1973 reads as under:
"321. Withdrawal from prosecution.- The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:
Provided that where such offence-6 CRM(M) no. 808/2022
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution."
13. Public prosecutor is a person who is a three in one representative of the Society, State and Sovereign to conduct a prosecution of a criminal case against person/s accused of commission of penal offences and is a person entrusted with an independent authority and personality in the matter of conduct of the prosecution of the assigned criminal case/s.
14. The Code of Criminal Procedure, 1908 vests this exceptional power in favour of the Public Prosecutor to withdraw from prosecution of any person either generally or in respect of any one or more of the offences for which he is being tried. The role of the Public Prosecutor, in the context of withdrawal from prosecution, has been thoroughly examined 7 CRM(M) no. 808/2022 by the Hon'ble Supreme Court of India in its constitution bench judgment in the case of 'Sheonandan Paswan Vs. State of Bihar and Ors‟ reported in (1987) 1 SCC 288. What has been stated and settled with respect to purport and purpose of section 321 Cr.P.C by the Hon'ble Supreme Court in paragraphs 22, 28, 44, 78 and 79 in the said judgment makes a compulsive reading and are as under:
"22........ This Court has, therefore, despite fluctuating opinions delivered in different cases, laid down the broad principle and consistently acted upon it, namely, that the power to apply for withdrawal from the prosecution can be exercised only in furtherance of justice. It was pointed out by this Court in M. N. Sankaranarayanan Nair v. P. V. Balakrishnan, (1972) 2 SCR 599 : ( AIR 1972 SC 496 ), "the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice." So also, one of us, (Bhagwati, J. as he then was) said in State of Orissa v. C. Mohapatra, (1977) 1 SCR 335: ( AIR 1977 SC 903 ) - "the ultimate guiding consideration must always be the interest of administration of justice." That is the broad principle under which the Public Prosecutor must bring his case in order to be able to justify his application for withdrawal from the prosecution. What are the different grounds which may possibly come within this principle is a matter which we shall presently discuss but whatever be the grounds on which the application is made it can be sustained only if these grounds are relatable to furtherance of public justice."
"28. Now let us consider the question as to what are the grounds on which the Public Prosecutor can apply for withdrawal from the prosecution. These grounds have been variously stated in the decisions of this Court but the basic principle underlying all these grounds is that the withdrawal can be sought only for furthering the cause of public justice. If we may repeat what we have said before 8 CRM(M) no. 808/2022 the paramount consideration must always be the interest of administration of justice. That is the touchstone on which the question must be determined whether an application for withdrawal of the prosecution can be sustained. This Court tried to formulate several instances where the cause of public justice would be served better by withdrawal from the prosecution. It was observed by this Court in M. N. Sankaranarayanan v. P. V. Balakrishnan, ( AIR 1972 SC 496 ) (supra) that an application for withdrawal from the prosecution may be made on the ground that "it will not be possible to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or in any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. This Court also pointed out in State of Orissa v. C. Mohapatra, ( AIR 1977 SC 903 ) (supra) that "it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution." It was also emphasised by this Court in Subhash Chander v. State, ( AIR 1980 SC 423 ) (supra) that "justice cannot be allowed to be scuttled by the Public Prosecutor or the State because of hubris affection or other noble or ignoble considerations." This Court also observed in R. K. Jain v. State, ( AIR 1980 SC 1510 ) (supra) :
"In the past we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial 9 CRM(M) no. 808/2022 conflicts, student unrest, etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter productive. An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched."
It will thus be seen that the Public Prosecutor cannot maintain an application for withdrawal from the prosecution on the ground that the Government does not want to produce evidence and proceed with the prosecution against the accused or that the Government considers that it is not expedient to proceed with the prosecution. The Public Prosecutor has to make out some ground which would advance or further the cause of public justice. If the Public Prosecutor is able to show that he may not be able to produce sufficient evidence to sustain the charge, an application for withdrawal from the prosecution may be legitimately made by him. But there are two clarifications which we would like to introduce where the prosecution is sought to be withdrawn on this ground."
"44. I respectfully agree with the legal position flowing from S. 321 of the Code of Criminal Procedure as explained by Krishna Iyer and Chinnappa Reddy, JJ. in respect of cases relating to Bansi Lal and Fernandes in R. K. Jain v. State through Special Police Establishment, (1980) 3 SCR 982 : ( AIR 1980 SC 1510 ). In that case 10 CRM(M) no. 808/2022 Chinnappa eddy, J. has summarised the true legal position thus :
"1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.
2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.
3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, political purposes sans Tammany Hall enterprise.
6. The Public Prosecutor is an officer of the Court and responsible to the Court.
7. The Court performs a supervisory function in granting its consent to the withdrawal.
8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in 11 CRM(M) no. 808/2022 granting or withholding its consent to withdrawal from the prosecution.
We may add it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution.. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of S. 321, Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case."
"78. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent, The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. The judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes."
"79. The Court's function is to give consent. This section does not obligate the Court to record reasons before consent is given. However, I should not be taken to hold that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines consent. The section should not be construed to mean that the Court has to give 12 CRM(M) no. 808/2022 a detailed reasoned order when it gives consent. If on a reading of the order giving consent, a higher Court is satisfied that such consent was given on an overall consideration of the materials available, the order giving consent has necessarily to be upheld.
15. The understanding of section 321 Cr.P.C has been carried forward towards clarity by the Hon'ble Supreme Court in the case of "V.L.S Finance Limited Vs. S.P. Gupta and anr" (2016) 3 SCC 736 in the following paras reproduced herein next:-
"37. Regard being had to the language employed in Section 321 Cr.P.C., we may refer to the Constitution Bench decision in Sheonandan Paswan v. State of Bihar and others[6] wherein the Court referred to Section 333 of the old Code and after taking note of the language employed under Section 321 of the present Code came to hold that Section 321 enables the Public Prosecutor, in charge of the case to withdraw from the prosecution of any person at any time before the judgment is pronounced, but the application for withdrawal has to get the consent of the court and if the court gives consent for such withdrawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is required to be framed. It clothes the Public Prosecutor to withdraw from the prosecution of any person, accused of an offence, both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is „at any time before the judgment is pronounced‟. It has also been observed that the judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. The Constitution Bench after referring to the authorities in Bansi Lal v. Chandan Lal and others[7], Balwant Singh v. State of Bihar[8], Subhash Chander v. State (Chandigarh 13 CRM(M) no. 808/2022 Admn.)[9], Rajender Kumar Jain v. State[10] and the principles stated in State of Bihar v. Ram Naresh Pandey case.
"99. All the above decisions have followed the reasoning of Ram Naresh Pandey case (supra) and the principles settled in that decision were not doubted.
100. It is in the light of these decisions that the case on hand has to be considered. I find the application for withdrawal by the Public Prosecutor has been made in good faith after careful consideration of the materials placed before him and the order of consent given by the Magistrate was also after due consideration of various details, as indicated above. It would be improper for this Court, keeping in view the scheme of Section 321, to embark upon a detailed enquiry into the facts and evidence of the case or to direct retrial for that would be destructive of the object and intent of the section."
"39. In Rahul Agarwal v. Rakesh Jain and another[13], the Court while dealing with the application under Section 321 Cr.P.C. referred to certain decisions wherein the earlier decision of the Constitution Bench in Sheonandan Paswan (supra) was appreciated, and thereafter ruled thus:-
"10. From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of 14 CRM(M) no. 808/2022 justice, the court may allow the withdrawal of prosecution. The discretion under Section 321, Code of Criminal Procedure is to be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same."
"40. In Bairam Muralidhar v. State of A.P., while dealing with the said provision it has been laid down that:-
"18... it is the obligation of the Public Prosecutor to state what material he has considered. It has to be set out in brief. The court as has been held in Abdul Karim case, is required to give an informed consent. It is obligatory on the part of the court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the court to weigh the material. However, it is necessary on the part of the court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice. A court while giving consent under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The court cannot give such consent on a mere asking. It is expected of the court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the court is obliged to see is whether such withdrawal would advance 15 CRM(M) no. 808/2022 the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done. That maintains the law and order situation in the society. The Public Prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the Public Prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the court as well as his duty to the collective."
"41. In this context, reference to a two-Judge Bench decision in Vijaykumar Baldev Mishra alias Sharma v. State of Maharashtra would be fruitful. In the said case, the Court held that Section 321 Cr.P.C. provides for withdrawal from prosecution at the instance of the Public Prosecutor or Assistant Public Prosecutor. Indisputably therefore the consent of the Court is necessary. Application of mind on the part of the Court, therefore, is necessary in regard to the grounds for withdrawal from the prosecution in respect of any one or more of the offences for which the appellant is tried. The Public Prosecutor in terms of the statutory scheme laid down under the Cr.P.C. plays an important role. He is supposed to be an independent person. While filing such an application, the Public Prosecutor also is required to apply his own mind and the effect thereof on the society in the event such permission is granted."
"42. We have enumerated the principles pertaining to the jurisdiction of the Court while dealing with an application preferred under Section 321 Cr.P.C. and also highlighted the role of the Public Prosecutor who is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal from the prosecution would really subserve 16 CRM(M) no. 808/2022 the public interest at large. The authorities referred to hereinabove clearly spell out that Public Prosecutor is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective."
16. Keeping in view the essence and essentiality with which the provision of withdrawal from prosecution under Section 321 Cr.P.C. has been invested, this Court is of the view that its application is to be more readily expedient and available in cases of offences born out of troubled matrimonial relationship between husband and wife when the two come together reconciling and sinking their differences and discords either for the purpose of resumption of a better matrimonial relationship or to end it in an amicable manner to rest their personal agony.
17. It is in this scenario that the pendency of a criminal case with respect to a non-compoundable offence like 498-A IPC shall not be allowed to be a hiccup in implementing their decision-making for each other's betterment.
18. Thus, this Court holds and declares that, as and when in any given case involving commission of offence under Section 498-A IPC and other offences related there with pending trial before a criminal court, the wife, as being the complainant, and husband and his relatives, as being the accused, join together for the purpose of ending said criminal case, then they shall be entitled to present a written application to the criminal court seized of the case thereby seeking the Public Prosecutor 17 CRM(M) no. 808/2022 conducting the prosecution for making withdrawal of the prosecution by stating the facts and circumstances of the case under which the wife and the husband are seeking withdrawal of the prosecution.
19. The application duly supported by the respective affidavits of all the concerned when presented to the Public Prosecutor on the file of a case shall be given due consideration by the Public Prosecutor for the purpose of lending his assent to withdraw from prosecution. The criminal court, seized of the criminal case upon its due satisfaction that the parties involved in the case have acted in a good faith to end the criminal case involving commission of offence under section 498-A IPC along with other related offences, compoundable or non- compoundable, and that the Public Prosecutor has lend his assent to withdraw from the prosecution, shall allow the withdrawal of the prosecution so as to save the parties i.e. the husband and wife from the ordeal of approaching this Court for the purpose of doing what could otherwise be got done by the parties before the very court which is seized of the trial of a criminal case involving them as complainant and accused.
20. In view of what has been stated above, this petition is allowed and the criminal case no. 1356/2021 based upon final Police Report no. 57 of 2020 dated 30.12.2020 in FIR no. 64 of 2020 of the Police Station, Janipur, Jammu pending trial before Municipal Magistrate, Jammu is hereby quashed.
18CRM(M) no. 808/2022
21. A copy of this order be sent by the Registrar General of this Court to all the Sessions Judges and Chief Judicial Magistrates of the UT of Jammu & Kashmir and the UT of Ladakh for their notice.
22. Disposed of accordingly.
(Rahul Bharti) Judge JAMMU 09.08.2023 NARESH/Secy.
Whether the order is reportable: Yes Whether the order is speaking: Yes