FIR Quashed In Land Dispute Case | J&K High Court Says Allegations Do Not Disclose Any Cognizable Offence | Continuation Of Proceedings Would Be Abuse Of Process
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has quashed an FIR registered under Sections 354 and 447 of the Indian Penal Code, observing that the allegations made and the material collected by the investigating agency do not disclose the commission of any cognizable offence. The Court directed that the continuation of proceedings arising from the impugned FIR would amount to an abuse of process of law and ordered their termination in entirety.
The case arises from an FIR registered on November 8, 2020, at Police Station Sadder, Srinagar, based on a complaint alleging that two individuals entered a land parcel at Bypass Hyderpora, obstructed the complainant while she was working, hurled abuses, and allegedly pushed her, causing her to fall and dislodge her headgear. These actions, the complainant alleged, amounted to outraging her modesty, thereby invoking Sections 354 and 447 of the IPC.
The petitioners challenged the FIR on grounds that the dispute stemmed from a long-standing civil litigation involving joint ownership of the said land. According to the petitioners, the disputed property measuring 1 kanal and 15 marlas under Survey No. 759/59 was jointly owned by their predecessor and the complainant, his sister. Following the predecessor’s death, the petitioners claimed uninterrupted possession of the land.
Allegedly, the complainant sought to obtain unilateral ownership by applying to the local Tehsildar for removal of the petitioners’ predecessor’s name from revenue records. This order, passed in favour of the complainant, was subsequently set aside by the Financial Commissioner on January 24, 2018, who directed a formal partition of the land. A writ petition challenging this order was stated to be pending before the High Court.
Subsequently, the complainant allegedly attempted to construct on the land in June 2020. The petitioners obtained an interim injunction from the Court of the Civil Subordinate Judge, Srinagar, dated July 4, 2020, restraining construction activity. Further, on learning that a sale deed had been executed by the complainant and her daughter on May 15, 2020, regarding the disputed land, the petitioners filed another civil suit, which led to a status quo order from the 3rd Additional Munsiff, Srinagar.
The petitioners contended that the complainant repeatedly attempted to contravene judicial directions and that an FIR had also been lodged against her grandchildren for similar violations. The petitioners further asserted that the current FIR was a retaliatory move, intended to criminalize a property dispute of civil nature and harass them through the criminal process.
The State, in its objections, affirmed the allegations recorded in the FIR and submitted that the investigation had prima facie established offences under the said sections. It was further submitted that a chargesheet had been prepared. During the pendency of the matter, it was also noted that the complainant, impleaded as respondent No.5, had passed away.
The Court examined the applicability of Section 354 IPC, which penalizes assault or criminal force against a woman with intent to outrage her modesty. Justice Dhar referred to the statutory definitions under Sections 349 and 350 IPC, clarifying the meanings of “force” and “criminal force.” He noted:
“Assault or criminal force is an essential ingredient of offence under Section 354 of the IPC. Thus, if a person uses criminal force or assaults a woman with an intention to outrage her modesty, he is said to have committed an offence under Section 354 of IPC.”
On the element of “modesty,” the Court cited Rupan Deol Bajaj vs. Kanwar Pal Singh Gill (1995) and Attorney General vs. Satish (2022), recording: “The ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman.”
Applying this framework to the present facts, the Court stated: “As per the allegations made in the impugned FIR, the petitioners are alleged to have pushed the complainant while there was some altercation between them. As a result of this, the complainant fell down and her headgear also fell down. This according to the prosecution amounts to outraging modesty of the complainant.”
The Court noted that there was no material to suggest an intent to outrage modesty:
“There is nothing either in the statement of the complainant or in the material collected by the Investigating Agency during investigation of the case to remotely suggest that the petitioners intended to outrage modesty of the complainant.”
“Having regard to the age of the complainant and having regard to the fact that she was closely related to the petitioners, it is difficult to conceive that the petitioners intended to outrage modesty of the complainant.”
On the charge of criminal trespass under Section 447 IPC, which requires proof of unlawful entry with intent to commit an offence or to insult or annoy the possessor, the Court recorded: “Unless it is shown that the property, upon which trespass is committed, is in possession of the victim and not in possession of the offender, it cannot be stated that the offence of criminal trespass has been committed.”
Given the ongoing civil disputes and lack of demarcation of the property in question, the Court stated: “In the absence of any revenue record to show that the site of occurrence was actually in possession of the complainant, the offence under Section 447 of IPC cannot be stated to have been constituted against the petitioners.”
Justice Dhar further commented on the misuse of criminal process to pressurize parties in civil disputes: “The facts and events which have led to the lodging of impugned FIR leads this Court to the inference that the complainant has tried to settle a civil dispute between her and the petitioners by giving it a criminal colour which has prompted her to lodge the impugned FIR.”
The Court cited the decision in Md. Ibrahim v. State of Bihar, stating:
“There is a growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature.”
“The same is nothing but an abuse of process of court which needs to be curbed by this Court by exercising its power under Section 482 of the Cr. P. C.”
The High Court held that the allegations made in the FIR and the material collected during investigation did not constitute any cognizable offence against the petitioners. The Court further found that the criminal process was being misused to coerce the petitioners into a settlement over a civil dispute. Accordingly, it allowed the petition.
The Court ordered: “The petition is allowed and the impugned FIR and the proceedings emanating therefrom are quashed.”
The Court also directed that: “The Case Diary be returned to learned counsel for the respondents.”
Advocates Representing the Parties
For the Petitioners: Mr. Prince Hamza, Advocate
For the Respondents: Mr. Mohsin-ul-Showkat Qadiri, Senior Additional Advocate General, with Mr. Faheem Nisar Shah, Government Advocate
Case Title: Raja Asif Farooq & Anr. v. UT of J&K and Others
Case Number: CRM(M) No.267/2022
Bench: Justice Sanjay Dhar
[Read/Download order]
