Rupam Borah v. The State of Assam and Anr

ORDER

04.08.2023 Heard Ms. S. Nazneen, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State of Assam representing the State respondent and Ms. R. Hussain, learned counsel for the respondent No. 2.

¶2This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for setting aside and quashing the FIR dated

04.02.2022 in connection with Dispur P.S. Case No. 273/2022 registered under Sections 498(A) of the IPC.

¶3This present petition is filed in a background that the petitioner and the respondent No. 2, 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.

¶4The facts of the case is that the petitioner is the husband of the respondent No. 2 and their marriage was solemnized on 22.01.2017 as per the Hindu rites and custom at Guwahati and accordingly they have started their conjugal life. After spending couple of months of their conjugal life due to some misunderstanding and maladjustment they got separated.

¶5Thereafter, the respondent No. 2 filed a complaint against the petitioner Page No.# 3/5 before the Chief Judicial Magistrate, Kamrup which was registered as registered as Dispur P.S. Case No. 273/2022 under Section 498(A) of the IPC.

¶6Subsequently, the petitioner and the respondent No. 2 have mutually settled the matter vide deed of compromise dated 20.05.2023, which is annexed in this petition as Annexure -II.

¶7In 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 criminal proceeding being Dispur P.S. Case No. 273/2022 registered under Sections 498(A) of the IPC.

¶8It 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 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.

¶9In the case of State of Madhya Pradesh & Laxmi Narayan, reported in AIR 2019 SC 1296, 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.

¶10For ready reference, paragraph-13 of State of Madhya Pradesh & 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 Page No.# 4/5 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) 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) 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) 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 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."

¶11From the materials available on record including the deed of compromise, this Court is of the view that the matter relates to a family dispute and both the parties has decided to dissolve their marriage mutually by a decree of divorce and no grievance against each other for Page No.# 5/5 their peaceful future life, this is a fit case where the power under Section 482 Cr.P.C. can be exercised as held in Laxmi Narayan (Supra).

¶12Accordingly, this petition is allowed by setting aside and quashing the criminal proceeding being FIR dated 04.02.2022 in connection with Dispur P.S. Case No. 273/2022 registered under Sections 498(A) of the IPC.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010131972023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./603/2023 RUPAM BORAH S/O LATE MADAN BORAH R/O KOKILA CHARIALI, GOHPUR DIST. BISWANATH CHARIALI P.S. GOHPOUR PIN-781025 VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM 2:MRS. KALYANI DUTTA W/O SRI RUPAM BORAH D/O SRI BINOD CHANDRA DUTTA R/O QUARTER NO. 210 SPECIAL BRANCH KAHILIPARA P.S. DISPUR DIST. KAMRUP (M) GUWAHATI-14 ASSA Advocate for the Petitioner : MS. S NAZNEEN Advocate for the Respondent : PP, ASSAM Page No.# 2/5 BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY