Saidul Islam v. The State of Assam and 2 Ors

ORDER

09.08.2023 Heard Mr. M. I. Hussain, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State of Assam representing the State respondent and Mr. M. Ali, learned counsel for the respondent Nos. 2 and 3.

¶2This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for setting aside and quashing the Charge Sheet No. 134/19 dated 30.06.2019 filed in GR No. 2041/2018 in connection with Chapor P.S. Case No. 467/18 under Section 8 of the POCSO Act.

¶3This present petition is filed in a background that the petitioner and the respondent Nos. 3, 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 on 19.11.2018 at about 12 noon, taking advantage of absence of respondent No. 2 at home, the petitioner entered the house without authority outraged the modesty of his daughter i.e. respondent No. 3 by touching whole body and proposed to have illicit relation against her will with a promise to marry her.

¶5Thereafter, the respondent No. 2 filed an FIR against the petitioner before Page No.# 3/6 the Chapor Police Station which was registered as registered as Chapor P.S. Case No. 467/18.

¶6Subsequently, the petitioner and the respondent Nos. 3 have mutually settled their matter and decided to arrange marriage between the petitioner and the respondent No. 3 and as such, their marriage was solemnized on 29.10.2019 socially before the Muslim Marriage Register and Quazi, Bilasipara and since then they are living as husband and wife and continuing a happy conjugal life.

¶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 Charge Sheet No. 134/19 dated 30.06.2019 filed in GR No. 2041/2018 in connection with Chapor P.S. Case No. 467/18 under Section 8 of the POCSO Act.

¶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. Page No.# 4/6

¶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 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." Page No.# 5/6

¶11Also perused the statement of the victim girl recorded under Section 164 of the Cr.P.C. as well as Section 161 of Cr.P.C., which discloses that on the date of alleged occurrence, the petitioner was having a love affairs with the victim and on the date of incident, he touched her body and informed that they will have a court marriage, however, subsequently, he did not marry her and accordingly, FIR was lodged against the petitioner.

¶12It is discernible from the record that on the date of incident, the victim was nearing about 18 years of age, however, after attaining the majority i.e. 18 years, they got married and thereafter, they have been living as husband and wife with their child.

¶13In that view of the matter, this Court is of the opinion that if the proceeding is allowed to be continued, it will be a futile exercise inasmuch as the victim has also filed an affidavit before this Court that they had a love affair and due to some misunderstanding, the FIR was lodged and subsequently, they got married after attaining the legal age.

¶14From the materials available on record including the affidavit filed by the respondents, this Court is of the view that the matter relates which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the petitioner and respondent No. 3 and they are living as husband and wife and continuing a happy conjugal life, this is a fit case where the power under Section 482 Cr.P.C. can be exercised as held in Laxmi Narayan (Supra). Page No.# 6/6

¶15Accordingly, this petition is allowed by setting aside and quashing the criminal proceeding being Charge Sheet No. 134/19 dated 30.06.2019 filed in GR No. 2041/2018 in connection with Chapor P.S. Case No. 467/18 under Section 8 of the POCSO Act. JUDGE Comparing Assistant

Page No.# 1/6 GAHC010164282020 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./568/2020 SAIDUL ISLAM S/O- KALIMUDDIN PARAMANIK, R/O- VILL.- MADANER ALGA, P.S. CHAPOR, DIST.- DHUBRI, ASSAM. VERSUS THE STATE OF ASSAM AND 2 ORS REP. BY THE PUBLIC PROSECUTOR, ASSAM. 2:SHOID ALI S/O- LATE HABIBAR RAHMAN VILL.- LALIA PARA SALKOCHA P.S. CHAPOR DIST.- DHUBRI ASSAM. 3:SAINA KHATUN D/O- SHOID ALI W/O- SAIDUL ISLAM VILL.- MADANER ALGA P.S. CHAPOR DIST.- DHUBRI ASSAM Advocate for the Petitioner : MR. M I HUSSAIN Advocate for the Respondent : PP, ASSAM Page No.# 2/6 BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY