MUSHTAQ AHMAD SHAH & ORS. V. UT OF J&K AND OTHERS CRM(M) No.182/2022:

DATE: 31/10/2025

COURT: High Court of Jammu & Kashmir and Ladakh

BENCH: Justice Sanjay Dhar

FACTS:

The petitioners challenged FIR No. 84/2021 registered at Police Station M.R. Gunj, Srinagar, for offences under Sections 354 and 448 of the IPC. According to the prosecution, the complainant alleged that on 25.08.2021, her brother-in-law (petitioner Mushtaq Ahmad Shah), his wife (petitioner Shaheena), and their son (petitioner Tawseeq) came to her house, assaulted her, broke open the lock of another room, dragged her outside, hurled abuses, and later assaulted her husband when he intervened. The complainant further claimed that during the scuffle, her headgear fell off, which she considered as an act outraging her modesty. She stated that the incident followed earlier episodes in which the petitioners, along with police personnel, had come to question her at her home in June 2021.

The petitioners contended that the FIR was fabricated and lodged only to settle an ongoing civil dispute over joint property located at Khankai Moulla, Kalashpora, Srinagar, purchased jointly by petitioner No.1 and respondent No.5 in 1995. They asserted that both sides are co-owners and co-sharers, and that a civil suit seeking permanent prohibitory injunction had already resulted in an order of status quo. The petitioners also maintained that the complainant had previously assaulted petitioner No.2, resulting in a counter FIR (No.70/2021). They argued that the present FIR was filed maliciously to exert pressure in the civil dispute. The police, however, stated that charges had been established and a charge sheet had been prepared.

ISSUES:

The main issues before the Court were: whether the allegations in the FIR and the material collected during investigation disclosed the commission of offences under Sections 354 (outraging modesty) and 448 (criminal trespass) IPC; whether the incident constituted criminal force used with the requisite intention to outrage modesty; whether the petitioners, being co-owners of the disputed property, could be said to have committed trespass; and whether the FIR was lodged merely to settle an existing civil dispute, amounting to abuse of the criminal process.

JUDGEMENT WITH REASONING:

The Court quashed the FIR and all proceedings arising from it, holding that the allegations did not constitute offences under Sections 354 or 448 IPC. It found no material suggesting that the petitioners intended to outrage the complainant’s modesty, nor was there proof that the property was in her exclusive possession to sustain a charge of criminal trespass. The Court concluded that the FIR was lodged to give a criminal colour to a purely civil dispute, and allowing the proceedings to continue would amount to abuse of process.

The Court first analyzed the ingredients of Section 354 IPC, emphasizing that “intention to outrage modesty” or knowledge that such an act is likely must be clearly evident. Although the complainant alleged that she was dragged and her headgear fell off, the Court found no indication in her statements or in the case diary that the petitioners acted with the intention to outrage her modesty. The relationship between the parties, being close family members was considered relevant in assessing intent. The Court noted that mere physical force used during a property-related altercation, without the requisite intention or knowledge, cannot amount to an offence under Section 354. The Court relied on well-established jurisprudence defining modesty and reiterating that only acts perceived as indecent, degrading, or shocking to a woman’s sense of decency qualify as offences under Section 354, which was not the case here.

Regarding the allegation under Section 448 IPC, the Court held that criminal trespass requires entry into property in the possession of another with intent to commit an offence or to intimidate, insult, or annoy the person in possession. The petitioners had produced clear evidence of an ongoing civil dispute and a status quo order issued by the civil court, demonstrating that both parties claimed rights over the disputed property. The Investigating Agency had failed to examine or collect evidence regarding actual possession of the house. Since the petitioners were co-owners, their entry into the property could not constitute trespass in law. The Court further observed that the complainant had attempted to use the criminal justice system to settle a property dispute, a practice repeatedly disapproved by the Supreme Court. The circumstances showed that the FIR was lodged with mala fide intent, making its continuation an abuse of legal process warranting quashing under Section 482 CrPC.

ANALYSIS:

The case revolves around a family property dispute that escalated into criminal allegations of assault, outraging modesty (Section 354 IPC), and criminal trespass (Section 448 IPC). The complainant alleged that the petitioners—her brother-in-law, his wife, and their son entered her home, assaulted her, and caused her headgear to fall off, which she interpreted as an act outraging her modesty. However, the investigation records and her own statements lacked any indication that the petitioners acted with the intention or knowledge required to constitute an offence under Section 354. Courts have consistently held that mere physical altercations during domestic or property-related disputes do not amount to “outraging modesty” unless accompanied by indecent intent, which was absent here. The familial relationship and the context of the quarrel further weakened the prosecution’s theory of deliberate sexual indignity.

On the trespass allegation, the Court found that the petitioners and the complainant were co-owners of the disputed premises, and an ongoing civil suit with a status quo order already recognised competing claims of possession. Since criminal trespass requires entry into property in exclusive possession of another with intent to intimidate, insult, or commit an offence, co-owners cannot ordinarily be prosecuted for trespass into joint property. The FIR was therefore viewed as an attempt to use criminal proceedings to gain leverage in the civil property dispute, an approach repeatedly condemned by higher courts. Concluding that the allegations lacked the essential ingredients of the offences and that the criminal process was being misused, the Court exercised its inherent powers under Section 482 CrPC to quash the FIR and related proceedings.