Johor Ali Sheikh v. The State of Assam and Anr

PageoNo.#o1/4 GAHC010081602023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./357/2023o JOHORoALIoSHEIKHo S/OoLATEoABDULoHUSSAINo S/OoVILL-oBATABARo P.O.oANDoP.S.oBIJNIo DIST.oCHIRANG,oBTR,o ASSAM,oPINoNO.o783390 VERSUSo THEoSTATEoOFoASSAMoANDoANRo REP.oBYoTHEoPP,oASSAM 2:AMINAoBIBI oW/OoAZADoSIKDARo VILL-oBATABARIo P.S.oBIJNIo DIST.oCHIRANG o PHONEoNO.o986459565o AdvocateoforotheoPetitionerooooo:oMR.oMoUoMAHMUDo AdvocateoforotheoRespondento:oPP,oASSAMoo ::kBEFOREk::k HON'BLEkMR.kJUSTICEkPARTHIVJYOTIkSAIKIA kOkkkRkkkDkkkEkkkRo

23.06.2023 o Heard Mr. M.U. Mahmud, learned counsel appearing for the petitioner. Also heard Mr. P. Borthakur, the learned Addl. Public Page No.# 2/4 Prosecutor, Assam representing the respondent no.1. Heard Mr. B. Hussain, learned counsel representing respondent no.2.

¶2This is an application under Section 482 of the CrPC praying for quashing the charge sheet being C.S. No.18/2023 in respect of Bijni P.S. Case No.200 of 2022 under Section 376 of the Indian Penal Code.

¶3It is alleged in the FIR that when the respondent no.2 was alone in her shop, the petitioner committed rape upon her. Thereafter, on

20.11.2022 at about 4 A.M., the petitioner again tried to commit rape the respondent no.2 but he failed to do so as because some other persons dropped in at the place of occurrence.

¶4Thereafter, the respondent no.2 filed an affidavit stating that because of misunderstanding of facts and upon undue influence of some other person, she had to lodge the FIR.

¶5I have heard Mr. M.U. Mahmud at length. Mr. B. Hussain representing the respondent no.2 submits that the entire incident came up only on the basis of misunderstanding of facts though no such incident of rape at all took place.

¶6I have considered the submissions made by the learned counsels of both sides.

¶7The power under Section 482 of the CrPC is the inherent power of the High Court for preventing the abuse of the process of the Court. The guidelines for exercising power under Section 482 of the CrPC are laid down by the Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. The relevant paragraph is quoted as under:

Page No.# 3/4 "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 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. Page No.# 4/4

(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."

¶8I find that under the given circumstances of the case, there is no possibility of future conviction in this case and allowing the criminal proceeding to continue would be an abuse of the process of the court. This is a fit case for exercising the power under Section 482 of the CrPC Accordingly, the criminal petition is allowed. The charge sheet being C.S. No.18/2023 in respect of Bijni P.S. Case No.200 of 2022 under Section 376 of the Indian Penal Code, is set aside and quashed. The criminal petition is disposed of.

JUDGE Comparing Assistant