Abhijit Kumar Das and Anr v. The State of Assam and 3 Ors

PageoNo.#o1/5 GAHC010090642020 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./351/2020o ABHIJIToKUMARoDASoANDoANRo S/OoSRIoHARAKUMARoDAS,oR/OoVILL-JURAPUKHURI,oP.S.-LANKA,oDIST-HOJAI,oASSAM,oPIN-782442 2:oHARAKUMARoDAS oS/OoLATEoANUKULoDAS oR/OoVILL-JURAPUKHURI oP.S.-LANKA oDIST-HOJAI oASSAM oPIN-78244o VERSUSo THEoSTATEoOFoASSAMoANDo3oORSo (NOTICEoTHROUGHoTHEoPUBLICoPROSECUTOR,oASSAM) 2:MS.oSANGITAoSARKAR oW/OoSRIoABHIJIToKUMARoDAS oR/OoVILL-JURAPUKHURI oP.S.-LANKA oDIST-HOJAI oASSAM oPIN-782442 3:KAILASHoMALAKAR oTHEoOFFICER-IN-CHARGE oTAMULPURoPOLICEoSTATION oP.O.oANDoP.S.-TAMULPUR oDIST-BAKSA oASSAM oPIN-781367 4:NIPONoGOGOI Page No.# 2/5 SUB-INSPECTOR KUMARIKATA OUT POST P.O. AND P.S.-TAMULPUR DIST-BAKSA ASSAM PIN-78136 Advocate for the Petitioner : MR. S CHAUHAN Advocate for the Respondent : PP, ASSAM

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

23.06.2023

Heard Mr. S. Chauhan, learned counsel appearing for the petitioners. Also heard Mr. P. Borthakur, the learned Addl. Public Prosecutor, Assam representing the respondent no.1. Heard Mr. D. Chutia, learned counsel representing respondent nos.2, 3 and 4.

¶2This is an application under Section 482 of the CrPC praying for quashing the FIR of Tamulpur P.S. Case No.74/2020 under Sections 419, 376 and 495, 109 of the Indian Penal Code read with Section 34 of the said Code.

¶3The respondent no.2 is the informant of this case. She has alleged in the FIR that on 16.02.2020, she was married to the petitioner and after that, the petitioner allegedly perpetrated sexual assault upon her without her consent. Four days later, i.e. on 20.02.2020, the respondent no.2 came to know that the petitioner was already married with an 8 year old daughter. The respondent no.2 alleged that the petitioner no.2 being the father of the first petitioner, Page No.# 3/5 helped him in committing sexual atrocity upon the respondent no.2.

¶4In this Court, the respondent no.2 has filed an affidavit stating that because of misunderstanding of fact and on the basis of some rumours, she had lodged the FIR before the police. She claimed to be more than 15 years old. Hence, submitted that her husband never committed rape upon her.

¶5I have considered the submissions made by the learned counsels of both sides. Mr. Chauhan has submitted that according to the Exception No.2 of Section 375 of the Indian Penal Code, there is no ingredient of rape in this case.

¶6The 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:

"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 Page No.# 4/5 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.

(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."

¶7I 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 Page No.# 5/5 exercising the power under Section 482 of the CrPC Accordingly, FIR of Tamulpur P.S. Case No.74/2020 under Sections 419, 376 and 495, 109 of the Indian Penal Code read with Section 34 of the said Code, is set aside and quashed. The criminal petition is disposed of.

JUDGE Comparing Assistant