Prosecution silence amounts to implied consent: Court dismisses 498-A case, acquits 12 accused

12/08/2026

JAMMU, Aug 11: The Court of the 2nd Additional Sessions Judge, Jammu, has dismissed a criminal case registered under Sections 498-A, 494 and 109 of the Ranbir Penal Code (RPC) after the complainant-wife and her husband and relatives amicably settled their matrimonial dispute, holding that prolonged silence by the prosecution authorities in responding to the withdrawal request could be treated as implied consent.
The court, presided over by Anoop Kumar Sharma, 2nd Additional Sessions Judge, Jammu, consequently dismissed the challan/charge-sheet and directed that all the accused named in the case shall be deemed to have been acquitted and relieved of their bail bonds. The order was pronounced on August 11, 2026.
The case arose out of FIR No. 30/2018 registered at Police Station Arnia, involving allegations under Sections 498-A, 494 and 109 RPC against 12 persons, including Rajesh Kumar, Nirmla Devi, Karnail Singh, Rohit Saini, Tarsem Lal, Kailash Saini, Anu Saini, Kuldeep Singh (since deceased), Balwan Singh, Poli Devi, Neha Charak and Munish Kumar.
The complainant, Savita Saini, was the wife of accused Rajesh Kumar. The court noted that the matrimonial relationship between the parties had deteriorated and resulted in several litigations, with the present criminal case being one among them.
According to the order, the parties subsequently amicably settled their disputes during mediation and agreed to close the cases pending against each other. Since Section 498-A RPC is a non-compoundable offence, the parties sought to invoke the mechanism laid down by the High Court of Jammu & Kashmir and Ladakh in Divinder Kour and another versus UT of J&K, reported as 2023 (6) JKJ [HC] 58.
Savita Saini filed an application before the trial court on May 22, 2026, stating that she had amicably settled the dispute with her husband and that the parties had agreed to close all cases filed or pending against one another.
Her statement was recorded and she also placed a duly sworn affidavit on record in support of the application. The court supplied a copy of the application to the Public Prosecutor on the same day, seeking his consent for withdrawal of the prosecution in accordance with the High Court judgment.
However, according to the order, the prosecution sought five opportunities to file objections and convey its consent.
The Public Prosecutor informed the court on each occasion that the matter had been referred to the Deputy Director Prosecution, Jammu for instructions. The prosecutor eventually placed on record communication dated May 22, 2026 and a reminder dated July 29, 2026 seeking necessary instructions from the higher authority regarding withdrawal of the prosecution.
The court was informed that despite these communications, no response had been received from the office of the Deputy Director Prosecution, Jammu. The Public Prosecutor also submitted that he had taken up the matter telephonically but had received no positive response.
The court examined the High Court's judgment in Divinder Kour and another v. UT of J&K, wherein the High Court had held that where a wife, as complainant, and her husband and relatives, as accused, jointly seek to end a criminal case involving Section 498-A IPC and related offences, they can approach the criminal court through a written application seeking withdrawal of prosecution.
The High Court had also laid down a mechanism under which the Public Prosecutor was required to consider the request and lend his assent to withdrawal in the circumstances contemplated by the judgment.
The trial court noted that the High Court judgment was not merely persuasive but constituted a binding precedent for criminal courts as well as the prosecution.
It further recorded that the Special Leave Petition (Criminal) No. 60159/2024 filed by the Union Territory before the Supreme Court against the High Court judgment had been dismissed on February 10, 2025.
In a significant observation, the court said that, in view of the High Court judgment and its subsequent position before the Supreme Court, "a very little scope is left for the Prosecution to say 'No' to the said withdrawal process but to accord the assent."
The court observed that the prosecutor conducting the case could himself have given consent for withdrawal by referring to the High Court judgment.
It, however, noted that the prosecutor appeared to have approached his higher authorities as an "abundant caution" for instructions, but those instructions were not forthcoming even after more than two months.
The court further observed that even if the applicable procedural rules required approval from a superior authority for withdrawal of prosecution, the superior prosecution authority was expected to respond to the communication seeking such approval.
"Even if under any rules of procedure in vogue, the sanction of some superior authority for withdrawal from prosecution was to be obtained, the superior Prosecution authority must have responded to such communication," the court observed.
Against this backdrop, the court held that it was appropriate to give practical effect to the High Court's judgment and treated the continued silence of the prosecution authorities as implied consent to withdrawal of the prosecution.
The court specifically recorded that there had been no express denial to the withdrawal request.
"Being so, in the given facts and circumstances of the matter, and in order to give a practical effect to the purport and spirit of the judgment of Hon'ble High Court, I deem it appropriate to take it as an implied consent on behalf of the Prosecution lending the assent to withdrawal from the prosecution," the court held.
As a consequence, the court dismissed the challan/charge-sheet on the ground that the prosecution had been withdrawn.
It further directed that all the accused persons named in the case shall be deemed to have been acquitted and relieved them of their bail bonds.
Before concluding the matter, the court also took note of the need for uniform implementation of the High Court's directions.
It directed that the matter be brought to the notice of the Secretary, Home Department, UT of J&K and the Director Prosecution, J&K, requesting them to issue necessary instructions and guidelines to the entire prosecution wing so that the directions contained in the Divinder Kour judgment are followed in letter and spirit.
The court further said that it would be appreciable if the Director Prosecution, in consultation with the Home Department, issues a Standard Operating Procedure (SOP) on the issue to ensure uniform adherence by prosecutors appearing before criminal courts across the Union Territory.
A copy of the order was accordingly directed to be forwarded to the Secretary, Home Department, UT of J&K and the Director Prosecution, J&K, for compliance.
The matter was thereafter disposed of and the file directed to be consigned to records.
The prosecution was represented by APP Raj Kumar, while the accused persons were represented by Advocate Neena Mishra.

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