Amir Hussain and 2 Ors v. The State of Assam and Anr

PageoNo.#o1/5 GAHC010173772023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./812/2023o AMIRoHUSSAINoANDo2oORSo S/OoABDULoKARIMo R/OoVILL-oSIMLAIPATHERo P.S.oKAMPUR,o DIST.oNAGAON,oASSAM 2:oABDULoKARIM oS/OoLATEoSIRAJoUDDINo R/OoVILL-oSIMLAIPATHERo P.S.oKAMPUR o DIST.oNAGAON oASSAM 3:oFOIZULoHOQUE oS/OoLATEoABDULoSATTARo R/OoLUTUMARIoMATIKHULAo P.S.oKOCHUAo DIST.oNAGAON oASSAo VERSUSo THEoSTATEoOFoASSAMoANDoANRo REP.oBYoTHEoPP,oASSAM 2:HASINAoBEGUM oD/OoFOIZULoHOQUEo W/OoAMIRoHUSSAINo R/OoVILL-oANDoP.O.oSIMLAIPATHERo DIST.oNAGAON oASSAMo PIN-78242o Page No.# 2/5 Advocate for the Petitioner : MR. J LASKAR Advocate for the Respondent : PP, ASSAM

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

18.06.2024

Heard Mr. J. Laskar, the learned counsel appearing for the petitioners as well as Mr. D.F.A. Ahmed, learned counsel representing the Respondent No.2.

¶2This is an application under Section 482 of the CrPC praying for quashing the Special Case No.02/2023, arising out of Diyungmukh P.S. Case No.05/2023 under Sections 376(3) of the Indian Penal Code read with Section 9/11 of the Prohibition of Child Marriage Act r/w section 4/6/17 of the Protection of Children from Sexual Offences Act, 2012 pending in the court of learned Special Judge, Dima Hasao.

¶3On 02.02.2023, one police officer of Diyungmukh Police Station, in the district of Dima Hasao, had lodged an FIR before police alleging that in the month of October, 2021, Md. Foizul Haque had forcibly married his 15 old daughter to Md. Amir Hussain. The informant has further alleged that at the time of filing of the FIR, the victim had given birth to a baby.

¶4During investigation, on 20th February, 2023, the girl had stated under Section 164 of the CrPC that at the time of her marriage with Amir Hussain, she was 16 years and 4 months old. But at the time of giving the statement, she was 18 years old. The girl has stated before the Magistrate that on 21.01.2006, she had eloped with Amir Hussain and at that time, her parents did not agree with her decision to marry Amir Hussain. The girl further stated that she has been peacefully living together with Amir Hussain as his wife and she has given birth to a son. Page No.# 3/5

¶5On conclusion of investigation, police filed the charge sheet against Amir Hussain, his father and the father of the girl under Sections 376(3) of the Indian Penal Code read with Section 9/11 of the Prohibition of Child Marriage Act r/w section 4/6/17 of the Protection of Children from Sexual Offences Act, 2012.

¶6At the time of filing of this criminal petition, the case was pending before the trial court in the stage of consideration of charges.

¶7The learned counsel for the petitioners has submitted that though both sides are now living peacefully as husband and wife and though they have become parents of a baby boy, they are not entitled to file any application before the trial court for compounding the offences because the offences are not compoundable according to Section 320 of the Code of Criminal Procedure.

¶8Mr. Laskar has submitted that for the aforesaid reason, the petitioners have filed the present application before this Court.

¶9Appearing for the girl, Mr. Ahmed has submitted that since the boy and the girl are married and they have now attained majority, the offences against the present petitioners deserve to be compounded by exercising the power under Section 482 of the CrPC.

¶10I have considered the submissions made by the learned counsel of both sides.

¶11The guidelines for consideration of a petition under Section 482 of the CrPC has been laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Paragraph 102 of the judgment reads 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 Page No.# 4/5 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 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."

¶12Reverting to the case in hand, I find that under the given circumstances, there is no possibility of conviction in this case in future. So, allowing the criminal proceeding to continue before the trial court would be nothing but an abuse of the process of the court.

¶13Therefore, I find that this is a fit case for exercising the power under Section 482 of the CrPC.

¶14Accordingly, the criminal proceedings of Special Case No.02/2023, arising out of Diyungmukh P.S. Case No.05/2023 under Sections 376(3) of the Indian Penal Code Page No.# 5/5 read with Section 9/11 of the Prohibition of Child Marriage Act r/w section 4/6/17 of the Protection of Children from Sexual Offences Act, 2012 pending in the court of learned Special Judge, Dima Hasao, is quashed and set aside. The criminal petition is disposed of.

JUDGE Comparing Assistant