Md. Baharul Islam and Anr v. The State of Assam and Anr

PageoNo.#o1/5 GAHC010172062022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./864/2022o MD.oBAHARULoISLAMoANDoANRo S/OoMDoNURULoAMINoCHOUDHARYo R/OoVILL-oMOWAMARI,o oP.O.oMOWAMARIo P.S.oSAMAGURI,o DIST.oNAGAON,oASSAMo PIN-782140 2:oHABIJAoKHATUNo@oESHAoDEY oW/OoMD.oBAHARULoISLAMo R/OoVILL-oMOWAMARI o oP.O.oMOWAMARIo P.S.oSAMAGURI o DIST.oNAGAON oASSAMo PIN-78214o VERSUSo THEoSTATEoOFoASSAMoANDoANRo REP.oBYoTHEoPP,oASSAM 2:SMTI.oMAMONIoDEY oW/OoSRIoKALINGAoDEY oR/OoRANGAMATIoSILIMoKHOWA oP.S.-SAMUGURI oDIST-NOWGAON oASSAM oPIN-78213o AdvocateoforotheoPetitionerooooo:oMR.oKoRoBORAo Page No.# 2/5 Advocate for the Respondent : PP, ASSAM

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

11.12.2023

Heard the learned counsel Mr. K.R. Bora appearing for the petitioners. Also heard Ms. S. Jahan, the learned Addl. Public Prosecutor representing the State of Assam/respondent no.1. Mr. S. Chauhan, learned counsel appears for respondent no.2.

¶2This is an application under Section 482 of the CrPC praying for quashing the FIR of Samaguri P.S. Case No.732/2019 under Section 363 of the Indian Penal Code and the Charge Sheet No.240/2020 (corresponding to PRC No.3735/2021) pending before the court of learned SDJM(S), Nowgaon, Assam.

¶3The respondent no.2 had lodged an FIR before police alleging that on 25.12.2019 at about 11 A.M., her daughter who was doing her studies in a Junior College at Samaguri, was found missing. The informant has stated that she searched for the girl in different places and finally came to know that the girl was kidnapped by Md. Baharul Islam.

¶4On conclusion of investigation, police filed the charge sheet against the said Baharul Islam.

¶5It has been pointed out that in her statement under Section 164 of the CrPC, the victim girl claimed to be 17 years old and she has claimed Page No.# 3/5 that she was in love with Baharul Islam and she eloped with him on her own.

¶6Mr. Chauhan appearing for the informant, has agreed that the girl is now married to Baharul Islam and the couple has become parents of a girl child. Mr. Chauhan submits that the informant no longer wants Baharul Islam to be punished.

¶7I have considered the submissions made by the learned counsels of both sides.

¶8The guidelines for quashing of the criminal proceeding has been laid down by the Hon'ble Supreme Court in State of Haryana and Ors. -versus-Bhajanlal and Ors., reported in AIR 1992 SC 604. Paragraph 102 of the said judgment is quoted hereunder: "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 channelized 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 Page No.# 4/5 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."

¶9In Bhajanlal(supra), the Supreme Court has cautioned that the power under Section 482 of the CrPC is to be sparingly used by the High Courts. The power under Section 482 of the CrPC is meant to prevent abuse of the process of the court.

¶10Reverting to the case in hand, this Court is of the opinion that the ratio laid down by the Hon'ble Supreme Court is applicable in the present case. I find that under the given facts and circumstances of the case, there is no possibility of future conviction of Baharul Islam (petitioner) in this case. Thus, allowing the criminal proceeding to Page No.# 5/5 continue before the learned trial court would be nothing but an abuse of the process of the court. It is a fit case for exercising the power under Section 482 of the CrPC.

¶11In view of the above, the FIR of Samaguri P.S. Case No.732/2019 under Section 363 of the Indian Penal Code and the Charge Sheet No.240/2020 (corresponding to PRC No.3735/2021) pending before the court of learned SDJM(S), Nowgaon, Assam, is set aside and quashed. The Criminal Petition stands disposed of accordingly. ]

JUDGE Comparing Assistant