Muzahar Ali @ Muzahar Sk. and 4 Ors v. The State of Assam and Anr

ORDER Date : 31-07-2023

¶1Heard Mr. M. Hussain, learned counsel for the petitioner and Mr. RR Kaushik, learned Additional Public Prosecutor for the State. Also heard Md. H.R. Ahmed, learned counsel for respondent No.2.

¶2This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 read with article 227 of the Constitution of India praying for quashing of the FIR dated 21.06.2018 in connection with Gauripur PS Case No.749/2018 under sections 417/376/342/34 IPC which is registered as GR No.2783/2018.

¶3This present petition is filed by the accused in the aforesaid charge-sheet and he is the petitioner No. 1, in the present application. Page No.# 3/6 This petition is also joined by the petitioner Nos. 2 to 5. 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 FIR registered as Gauripur P.S. Case No. 749/2018 under Sections 417/376/342/34 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 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: Page No.# 4/6 "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) 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 Page No.# 5/6 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." Page No.# 6/6

¶8In the case in hand, it is pleaded by the accused and the victim that they had a love affair, however, the parents of the victim got her marriage solemnised with another man, and the said marriage failed. Subsequently, the victim and the accused with the consent of their family got married and now they are happily living together as husband and wife.

¶9Considering the factual background of the present case and also considering the nature of offence including the young age of the accused and the victim and taking note of the materials available on record including the statements recorded under Section 161 of Cr.P.C., and the Charge-Sheet, this Court is of the considered opinion that this is a fit case, where this Court should exercise its inherent power under Section 482 of Cr.P.C. to quash FIR registered as Gauripur P.S. Case No. 749/2018 under Sections 417/376/342/34 of IPC. This Court while coming into such conclusion also considered that from the materials available on record, no case of 376 IPC is made out. That being so, neither the alleged offence can be said to be heinous one nor the quashment of the same shall have impact on the society,

¶10Accordingly, this petition is allowed by setting aside and quashing the FIR registered as Gauripur P.S. Case No. 749/2018 under Sections 417/376/342/34 of IPC. JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010164272020 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./569/2020o MUZAHARoALIo@oMUZAHARoSK.oANDo4oORS.o S/O-oMANSURoALI,oR/O-oVILL.-oSHADHUoBHASHA,oP.S.oGAURIPUR,oDIST.-o DHUBRI,oASSAM,oPIN-o783331. 2:oMANSURoALI oS/O-oLATEoMUSAoMUNSHI oR/O-oVILL.-oSHADHUoBHASHA oP.S.oGAURIPUR oDIST.-oDHUBRI oASSAM oPIN-o783331. 3:oSORHABoALIoSHEIKH oS/O-oLATEoMUSAoMUNSHI oR/O-oVILL.-oSHADHUoBHASHA oP.S.oGAURIPUR oDIST.-oDHUBRI oASSAM oPIN-o783331. 4:oABDULoMATINoSHEIKH oS/O-oLATEoMUSAoMUNSHI oR/O-oVILL.-oSHADHUoBHASHA oP.S.oGAURIPUR oDIST.-oDHUBRI oASSAM oPIN-o783331. 5:oSAIDULoISLAM oS/O-oASMAToALI oR/O-oVILL.-oSHADHUoBHASHA oP.S.oGAURIPUR oDIST.-oDHUBRI oASSAM Page No.# 2/6 PIN- 783331 VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PUBLIC PROSECUTOR, ASSAM. 2:SUNDURI KHATUN D/O- SONTESH ALI W/O- MUZAHAR ALI R/O- VILL.- SHADHUBHASHA NO. 2 P.O. AND P.S. GAURIPUR DIST.- DHUBRI ASSAM PIN- 783331 Advocate for the Petitioner : MR. M I HUSSAIN Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY