Md. Faridul Islam and 5 Ors v. The State of Assam

PageoNo.#o1/5 GAHC010175392022 ooooooo undefined ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./891/2022o MD.oFARIDULoISLAMoANDo5oORSo S/OoLUKMANoHOKIM,o R/OoBAGARITOL,o P.S.-oMIKIRBHOTA,o DIST.-oNAGAON,oASSAM. 2:oMD.oKALAoCHANo@oYASINoALI oS/OoLUKMANoHOKIM o R/OoBAGARITOL o P.S.-oMIKIRBHOTA o DIST.-oNAGAON oASSAM. 3:oMD.SURUJoALI oS/OoABDULoKADIR o R/OoTARAJAN o P.S.-oMIKIRBHOTA o DIST.-oMORIGAON oASSAM. 4:oAMINAoBEGUMo@oAMINAoKHATUN oW/OoSURUJoALI o R/OoTARAJAN o P.S.-oMIKIRBHOTA o DIST.-oMORIGAON Page No.# 2/5 ASSAM. 5: MD ABDUL KASHEM S/O MD RUHUL AMIN

R/O SALKATI PATHAR

P.S.- DHING

DIST.- NAGAON ASSAM. 6: RUPSINA BEGUM D/O ABDUL KASHEM

W/O FARIDUL ISLAM

R/O BAGARITOL

P.S.- MIKIRBHOTA

DIST.- MORIGAON ASSAM VERSUS THE STATE OF ASSAM REP. BY THE P.P., ASSAM. Advocate for the Petitioner : MR. I CHOUDHURY, R L CHUTIA,MS N GUPTA Advocate for the Respondent : PP, ASSAM,

Page No.# 3/5 :: BEFORE :: HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R

04.12.2024

Heard Mr. M Rahman, learned counsel for the petitioners and Mr. D. Das, learned Additional Public Prosecutor, Assam.

¶2This is an application filed under Section 482 of the CrPC praying for quashing the proceeding of Special POCSO Case No.19/2021 pending in the court of the learned Special Judge, Nagaon arising out of Dhing P.S. Case No. 507/2020.

¶3This is a joint petition filed by both sides.

¶4The petitioner no. 3 Md. Abdul Kashem had alleged that his minor daughter i.e. the petitioner no. 6 was kidnapped by the petitioner no. 1 Md. Faridul Islam. He allegedly kidnapped the girl along with some other persons.

¶5Today, Md. Faridul Islam, Md. Abdul Kashem and the victim girl along with some other persons have come together and stated that the victim girl and Md. Faridul Islam were in love for a long time and pursuant thereto, she had eloped with him at her own will. After that, they got married according to the religious rites and on

12.11.2021. Out of their wedlock, a girl child was born. The birth certificate of the said child is also annexed in this petition.

¶6Mr. Das, the learned Additional Public Prosecutor has submitted that since this is a case under the POCSO, lenient view should not be taken by the Court.

¶7I have considered the submissions made by the learned counsel of both sides. Page No.# 4/5

¶8The 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 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."

¶9Reverting to the case in hand, this Court is of the opinion that the law laid down Page No.# 5/5 in the aforesaid judgment is squarely applicable in this case. There is no possibility of future conviction in this case. So, allowing the criminal proceeding to continue before the trial court would be nothing but an abuse of the process of the court.

¶10Thus, it is a fit case for exercising power under Section 482 of the CrPC. The criminal petition is allowed.

¶11Accordingly, the proceeding of Special POCSO Case No.19/2021 pending in the court of the learned Special Judge, Nagaon arising out of Dhing P.S. Case No. 507/2020, is quashed and set aside. The criminal petition is disposed of.

JUDGE Comparing Assistant