Jamal Uddin @ Jamal Miya and 7 Ors v. The State of Assam and 2 Ors

PageoNo.#o1/6 GAHC010067882023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./302/2023o JAMALoUDDINo@oJAMALoMIYAoANDo7oORSo S/OoLATEoAJGARoALIo R/OoVILL-oBHAWKAMARIo P.S.oBARPETAo DIST.oBARPETA,oASSAM 2:oLALCHANoALIo@oLALCHANoMIYA oS/OoJAMALoUDDINo R/OoVILL-oBHAWKAMARIo P.S.oBARPETAo DIST.oBARPETA oASSAM 3:oFULCHANoALIo@oFULCHANoMIYA oS/OoJAMALoUDDINo R/OoVILL-oBHAWKAMARIo P.S.oBARPETAo DIST.oBARPETA oASSAM 4:oJAKIRoALIo@oJAKIRoHUSSAIN oS/OoJAMALoUDDINo R/OoVILL-oBHAWKAMARIo P.S.oBARPETAo DIST.oBARPETA oASSAM 5:oMAIDULoISLAMo@oMAHIDULoISLAM oS/OoJAMALoUDDINo R/OoVILL-oBHAWKAMARIo P.S.oBARPETAo DIST.oBARPETA oASSAM Page No.# 2/6 6: RAFIQUL ISLAM @ RAFIK ALI S/O JAMAL UDDIN R/O VILL-BHAWKAMARI P.S. BARPETA DIST. BARPETA ASSAM 7: KAMAL UDDIN @ KAMAL MIYA S/O LATE AJGAR ALI R/O VILL-BHAWKAMARI P.S. BARPETA DIST. BARPETA ASSAM 8: BABUL ALI @ BABUL HUSSAIN S/O KAMAL UDDIN R/O VILL-BHAWKAMARI P.S. BARPETA DIST. BARPETA ASSA VERSUS THE STATE OF ASSAM AND 2 ORS REP. BY THE PP, ASSAM 2:BAHARUL ISLAM S/O AYNAL HAQUE VILL-BHAWKAMARI

P.O. KAYAKUCHI P.S. AND DIST. BARPETA ASSAM PIN-781352 3:AYNAL HAQUE S/O LATE RABI MIYA VILL-BHAWKAMARI P.O. KAYAKUCHI P.S. AND DIST. BARPETA ASSAM PIN-78135 Advocate for the Petitioner : MR. R ALI Advocate for the Respondent : PP, ASSAM Page No.# 3/6

BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

01.08.2023

¶1Heard Mr. R Ali, learned counsel for the petitioner and Ms. A Begum, learned Additional Public Prosecutor for the State. Also heard Mr. M.Z Shah, learned counsel for respondent Nos.2 and 3.

¶2This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of the proceeding of PRC case No. 794/2021 pending in the court of learned Additional Chief Judicial Magistrate, Barpeta arising out of Barpeta P.S. Case No. 1847/2020.

¶3This present petition is filed by the accused persons in the aforesaid charge-sheet and by the informant jointly. Further, this present petition is filed in a background that the informant and the accused had settled the matter amicably between them and therefore, this court in exercise of power under Section 482 of Cr.P.C. should quash the criminal prosecution as the offences charged are not compoundable under Section 320 of Cr.P.C.

¶4In the aforesaid backdrop, this Court is now to decide whether this is a fit case where this Court can exercise its inherent power under Section 482 of Cr.P.C. to quash the entire proceeding of PRC case No. 794/2021 under Sections 143/147/325 IPC.

¶5It is by now settled that a High Court in exercise of its power under Section 482 of Cr.P.C. can very well quash a criminal proceeding or a criminal complaint under Section 482 of Cr.P.C., but while doing so, the Court is to follow certain Page No.# 4/6 principles as enunciated by the Hon'ble Apex Court in Gian Singh –Vs-State of Punjab and Another reported in 2012 10 SCC 303, and in State of Madhya Pradesh –Vs-Laxmi Narayan and Others reported in 2019 5 SCC 688.

¶6In the case of State of Madhya Pradesh & Laxmi Narayan, (supra), the Hon'ble Supreme Court has laid down certain guidelines for exercise of powers under Section 482 Cr.P.C., it is submitted that instant case falls within the guidelines laid down by the Hon'ble Supreme Court.

¶7For ready reference, paragraph-13 of Laxmi Narayan (Supra) is extracted herein below: "13. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;

iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst Page No.# 5/6 themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and

29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc."

¶8Perused the case diary, which reflects that the injury sustained are grievous in nature and inflicted on the vital/ delegate part of the body and there are altogether seven numbers of injuries and even there were fracture in the skull. It is also reflected in the case diary that the weapons used are dao, spare, lathi etc.

¶9Considering all above, this court is of the opinion that this is not a fit case, where this Court should exercise its inherent power under Section 482 of Cr.P.C. to quash the entire proceeding of PRC case No. 794/2021 under Sections 143/147/325 IPC pending in the court of learned Additional Chief Judicial Magistrate, Barpeta in view of the ratio laid down in Laxmi Narayan (Supra) Page No.# 6/6 and Gian Singh (supra).

¶10Accordingly, this petition stands dismissed. CD be returned back. JUDGE Comparing Assistant