Jammu & Kashmir High Court - Srinagar Bench
Mst. Haseena Begum vs State Of J&K And Ors on 25 November, 2021
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 343/2014
Reserved on 23.11.2021
Pronounced on 25..11.2021
Mst. Haseena Begum ..... Petitioner (s)
Through :- Mr. Shafqat Nazir, Advocate
V/s
State of J&K and ors .....Respondent(s)
Through :- None
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1 Impugned in this petition filed under Article 227 of the Constitution of India is an award/order dated 23.11.2013 passed by the Lok Adalat presided over by the Chief Judicial Magistrate, Sopore whereby on respondent No.3 pleading guilty of offences under Sections 354,341 and 323 RPC, the Lok Adalat, Sopore has convicted and sentenced him to pay a fine of Rs.400/- for commission of offence under Section 354 RPC, Rs. 300/- under Section 341 RPC and also Rs.300/- under Section 323 RPC. 2 The petitioner before me is the complainant at whose instance, FIR No. 94/2013 under Sections 354, 341 & 323 RPC was registered in Police Station, Tarzoo against respondent No.3. The police, after investigating the matter and finding the allegations leveled by the petitioner substantiated by evidence, produced the challan against respondent No.3 in the Court of learned CJM, Sopore ['trial Court']. As it transpires from the order impugned, the trial Court referred the case to the Lok Adalat, held at Sopore on 23.11.2013. 2 OWP No.343/2014 Respondent No.3, accused in the case, pleaded guilty. The Lok Adalat presided over by the learned CJM, Sopore, after recording the plea of guilt of respondent No.3-accused and taking a lenient view in the matter, convicted and sentenced him to pay a fine of Rs.1000/- for the aforesaid offences. It is this award/order of the Lok Adalat dated 23.11.2013 which is assailed by the petitioner before this Court.
3 The impugned order is challenged by the petitioner, inter alia, on the following grounds:
(i) That the reference of the case by the trial Court to the Lok Adalat was itself flawed and contrary to the provisions of Section 18 (4) of J&K Legal Services Authority Act, 1997 ['Act of 1997'];
(ii) That the Lok Adalat was not competent in law to impose sentence of fine only, more particularly, when the offence under Section 354 RPC carries sentence of imprisonment and fine both; and,
(iii) That the matter was taken up by the Lok Adalat in the absence of the petitioner who had vital stake in its outcome.
4 Having heard learned counsel for the petitioner and perused the material on record, it is necessary to first set out the provisions of Section 18 of the Act of 1997:
"18. Organization of Lok Adalats. - (1) The State Authority or District Authority or the High Court Legal Services Committee, or as the case may be, Tehsil Legal Services Committee may organize Lok Adalats as such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit.
(2) Every Lok Adalat organised for an area shall consist of such number of-
(a) serving or retired judicial officers; and 3 OWP No.343/2014
(b) other persons, of the area as may be specified by the State Authority or the District Authority or the High Court Legal Services Committee, or as the case may be, the Tehsil Legal Services Committee, organising such Lok Adalats.
(3) The experience and qualification of persons referred to in clause (b) of sub-section (2) for Lok Adalats shall be such as may be prescribed by the Government in consultation with the Chief Justice of the High Court.
(4) Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of-
(i) any case pending before; or
(ii) any matter which is falling within the jurisdiction of and is not brought before, any court for which the Lok Adalat is organised :
Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any Law".
5 From a bare reading of proviso appended to sub-section (4) of Section 18 of the Act of 1997, it is abundantly clear that the Lok Adalat does not have any jurisdiction in respect of any case or matter relating to an offence not compoundable under any law.
6 Section 320 of Cr.P.C delineates offences under the Indian Penal Code which are compoundable or may be compounded with the permission of the Court and the offences which are non-compoundable even with the permission of the Court. Sections 323 and 341 RPC are compoundable by the person to whom the hurt is caused and the person who is restrained respectively. Section 354 RPC which is essentially is an offence against a woman is, however, not compoundable. That being the clear legal position, the Lok Adalat does not have jurisdiction to take up a criminal case for disposal which relates to offence not compoundable under law. 4 OWP No.343/2014 7 In the instant case, Section 354 RPC with which respondent No.3 had been charged along with Sections 323 and 341 RPC is non-compoundable offence and, therefore, beyond the jurisdiction of the Lok Adalat. This aspect has not been kept in view by the Lok Adalat which has hurriedly decided a criminal case merely on the basis of plea of guilt pleaded by respondent No.3, the accused. It is seen that Section 354 RPC carriers punishment of imprisonment which may extend to two years with fine or with both. For facility of reference, Section 354 RPC as it stood in the year 2013 is also reproduced herein:
"354. Assault or criminal force to woman with intent to outrage her modesty--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".
8 From a bare perusal of Section 354 RPC, it is abundantly clear that the Criminal Court convicting an accused under Section 354 RPC has a discretion, either to sentence him to imprisonment or fine or both and, therefore, the argument of learned counsel for the petitioner that the Lok Adalat should have necessarily sentenced the accused to imprisonment, is not correct. However, position changed with the amendment of Section 354 RPC by Jammu and Kashmir Criminal Laws (Amendment) Act, 2013 which came into force on 22.03.2014. Respondent No.3-accused could not have been given the benefit of even plea-bargaining in terms of Section 265A of Code of Criminal Procedure, Svt.,1989 for the reason that Chapter XXIIA which deals with plea-bargaining does not apply where the accused has committed any offence that affects socioeconomic conditions of the State or is committed 5 OWP No.343/2014 against a woman, or a child below the age of 14 years. Offence under 354 RPC is essentially an offence committed against a woman. 9 Viewed from any angle, the impugned award passed by the Lok Adalat cannot be sustained. The impugned award/order dated 23.11.2013 passed by the Lok Adalat is, thus, nullity in the eyes of law and, therefore, deserves to be quashed. It is so ordered.
Let the trial Court proceed in the matter/challan in accordance with law. Since respondent No.3-accused, who after causing appearance in this Court through his counsel Mr. Imran Ashraf, Advocate has chosen to remain absent when the case was called out for hearing, therefore, it is directed that that the trial Court before proceeding further in the matter, shall summon the accused (respondent No.3) for facing trial.
Allowed in the above terms.
(SANJEEV KUMAR) JUDGE Srinagar
25. .11.2021 Sanjeev PS Whether order is speaking:Yes Whether order is reportable:Yes