Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
The Jammu and Kashmir and Ladakh High Court, while invoking its inherent powers under Section 528 of the Bhartiya Nagarik Suraksha Sanhita (BNSS) has held that the provision has an overriding effect and is not to be read as subject to Section 359 of the BNSS (corresponding to Section 320 of the CrPC). Justice Mohammad Yousuf Wani thus quashed an FIR registered under Sections 452 (trespass) and 376B (marital rape) of the IPC, emphasizing that the extraordinary powers under Section 528 can be exercised to secure the ends of justice, especially in matrimonial disputes where parties have amicably settled.
“.. 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 court emphasised.
The petition, filed under Section 482 of the CrPC (now replaced by BNSS), sought quashing of FIR registered at Police Station Zainpora, Shopian. The petitioner alleged that he was falsely implicated by his wife (respondent No. 3) after their marriage, solemnized in 2018, turned sour. He claimed that the FIR was lodged under pressure from her family, following a Khula Nama (divorce deed). The petitioner argued that the dispute was personal and had been resolved through a compromise deed dated 13.09.2022, ratified by both parties before the Court's Registrar.
Petitioner's counsel Shahbaz Sikander argued that the FIR was an abuse of process, arising from a matrimonial dispute with no societal impact. He relied on Supreme Court precedents (Parbatbhai Aahir, Kapil Gupta) to assert that High Courts can quash non-compoundable offences (like Sections 452/376B IPC) under Section 482 CrPC/Section 528 BNSS if justice demands.
Spotlighting the overriding power of Section 528 BNSS Justice Wani underscored that Section 528 BNSS (akin to Section 482 CrPC) preserves the High Court's inherent authority to prevent abuse of process or secure justice. The Court clarified that this power is not circumscribed by Section 359 BNSS (compounding provisions), stating,
"Provisions of Section 320 of the Code (Section 359 BNSS) do not restrict but only limit the powers of this Court... Extraordinary powers are to be used in exceptional circumstances to meet the ends of justice." The court cited Gian Singh (2012) & Narender Singh (2014) judgments wherein Supreme Court held that courts may quash proceedings if continuation would be "oppressive" or "unfair" in settled personal disputes. The Court noted that while serious offences impacting society (e.g., economic fraud, crimes against women) cannot be trivialized, matrimonial disputes with no broader implications deserve a pragmatic approach. "Continuance of criminal proceedings would be a futile exercise, merely to complete the procedure for acquittal... It would save judicial time and foster harmony between parties.", the court underlined.
It added, “.. 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”. Given that the complainant no longer supported the prosecution and the matter was of a private nature settled through mutual consent, the Court ruled that the criminal proceedings served no further purpose. “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”, the court concluded.
Case Title: Mohd Ismail Koka Vs State of J&K
Citation: 2025 (JKL HC)
