Rofiqul Islam and Anr v. The State of Assam

ORDER

12.12.2024

Heard Mr. A Z Khursid, learned counsel appearing for the petitioners. Heard Mr. D. Das, learned Additional Public Prosecutor, Assam. This is an application under section 482 of the CrPC praying for quashing the criminal proceedings of Special (P) Case No. 65/2024 pending in the court of the Special Judge, South Salmara, Mankachar arising out of Sukchar P.S. Case No. 33/2023. One person called Nurul Azim lodged an FIR before Police on 02.02.2023 alleging that the petitioner Rafiqul Islam has married a minor girl who was below 18 years of age. On the basis of the said FIR, Police started investigation and ultimately filed the charge sheet alleging that Rafiqul Islam and his wife Mino Tara Begum had committed offences under the Prohibition of Child Marriage Act and POCSO Act, 2012. Now, Rafiqul Islam, aged about 28 years and his wife Mino Tara Begum, aged about 20 years, have filed the present petition praying for quashing the criminal proceeding against them on the ground that on the day of marriage Mino Tara Begum was above 18 years of age. They have also submitted before this court that they are already blessed with a child and they are living happily. I have considered the submissions made by the learned counsel for the both sides.

The guidelines for exercising the power under section 482 of the CrPC is laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, 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 Page No.# 3/4 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 Page No.# 4/4 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.

¶103We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." Reverting to the case in hand, this court is of the opinion that allowing the criminal proceeding to continue before the trial court would be nothing but an abuse of the process of the court.

This is a fit case for exercising the power under section 482 of the CrPC. Therefore, the Special (P) Case No. 65/2024 pending in the court of the Special Judge, South Salmara, Mankachar arising out of Sukchar P.S. Case No. 33/2023 is quashed and set aside. The case is disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010246872024 ooooooo undefined ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./1409/2024o ROFIQULoISLAMoANDoANR.o S/OoMOTIORoRAHMANo VILL-oNEWAJESPURo P.S.oSUKCHARo DIST.oSOUTHoSALMARA,oASSAM 2:oMINOTARAoBEGUM oD/OoMINARULoISLAMo W/OoROFIQULoISLAMo VILL-oASSAMERoALGAo P.S.oSOUTHoSALMARAo DIST.oSOUTHoSALMARAoMANKACHAR oASSAo VERSUSo THEoSTATEoOFoASSAMo REP.oBYoTHEoPP,oASSAM AdvocateoforotheoPetitionerooooo:oMR.oAoZoAHMED,o AdvocateoforotheoRespondento:oPP,oASSAM,oo Page No.# 2/4 BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA