Umesh Basumatary and Anr v. The State of Assam and Anr

PageoNo.#o1/4 GAHC010167962024 ooooooo 2024:GAU-AS:8197 ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./1013/2024ooooooooo UMESHoBASUMATARYoANDoANRo S/O-oRANUoKUMARoBASUMATARY,oR/O-oASHRABARI,oP.S.oSIDLI,oDIST.o CHIRANG,oASSAM 2:oBUBLIoBASUMATARY oW/O-oUMESHoBASUMATARY oD/O-oDANSWANG oR/O-oASHRABARI oP.S.oSIDLI oDIST.oCHIRANG oASSAo VERSUSo THEoSTATEoOFoASSAMoANDoANRo TOoBEoREPRESENTEDoBYoTHEoPUBLICoPROSECUTOR,oASSAM 2:DANSWRANGoBASUMATARY oS/O-oLATEoJITENoBASUMATARY oR/O-oAMGURI oDIST.oKOKRAJHAR oASSAo AdvocateoforotheoPetitionerooooo:oMR.oAoAHMED,oUoUoKHAN,MRoAoAHMEDo AdvocateoforotheoRespondento:oPP,oASSAM,oo ooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/4

:: BEFORE :: HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R

20.08.2024

Heard Mr. A Ahmed, the learned counsel appearing for the petitioners. Also heard Mr. K.K. Parasar, the learned Addl. Public Prosecutor, Assam representing the State.

¶2This an application under Section 528 of the BNSS, 2023 praying for quashing the Kokrajhar P.S. Case No.315/2023 registered under Sections 342/376/323/427 and 506 of the Indian Penal Code read with Section 6 of the POCSO Act.

¶3On 11.09.2023, the informant had lodged an FIR stating that on 06.09.2023 at about 7.30 P.M., his 17 years old daughter had gone with a boy (aged about 24 years). It is further alleged that the boy and girl started to live together in a rented house. The informant claimed that the boy had confined his daughter in the rented house and forcibly committed rape upon her continuously for 3 nights. According to the informant, the boy had destroyed the mobile phone of his daughter and also committed physical harm to her. On 09.09.2023, local people of the area interfered into the matter and thereafter the girl called her father and she narrated the entire incident to him.

¶4During the period of investigation, the boy approached this Court seeking anticipatory bail but his prayer was rejected.

¶5Now, the boy and the girl jointly filed the present application praying for Page No.# 3/4 quashing the FIR.

¶6They have stated that they have married under the provisions of Special Marriage Act. The Marriage Certificate is available in the record. According to the school certificate, which is available in the record, the age of the girl is now 19 years.

¶7I have considered the submissions made by the learned counsel of both sides.

¶8The guidelines for consideration of a petition under Section 482 of the CrPC (now Section 528 of the BNSS, 2023 )has been laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Paragraph 102 of the judgment reads as under:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence Page No.# 4/4 but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

¶9Reverting to the case in hand, I find that under the given circumstances of the case, there is no possibility of future conviction in this case. So, allowing the criminal proceeding to continue before the trial court would be nothing but an abuse of the process of the court.

¶10This Court is of the opinion that this is a fit case for exercising power under Section 528 of the BNSS, 2023. The criminal petition is allowed.

¶11Accordingly, the Kokrajhar P.S. Case No.315/2023 registered under Sections 342/376/323/427 and 506 of the Indian Penal Code read with Section 6 of the POCSO Act, is quashed and set aside. The criminal petition is disposed of accordingly.

JUDGE Comparing Assistant