Namjay @ Namgey Tsering and Anr v. The State of Ap

Page No.# 1/4 GAHC040017882023

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Petn./242/2023 Namjay @ Namgey Tsering and Anr. son of Shri Tumpu Lama, presently residing at Doordarshan Colony, near Exalt Foundation School, Hill Top, ESS Sector, P.O and P.S Itanagar, Papum Pare District, Arunachal Pradesh. Mobile no. 919362154938 2: Miss Zara @ Pinki Naloiju Age: Occupation VERSUS THE STATE OF AP represented by the Public Prosecutor.

Advocate for the Petitioner : G Taloh Advocate for the Respondent : P P of AP

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

13.03.2024

Heard the learned counsel Mr. G. Taloh appearing for the petitioners. Also heard Mr. T. Ete, the learned Addl. Public Prosecutor Page No.# 2/4 representing the State of Arunachal Pradesh.

¶2This is a joint application filed by the petitioners under Section 482 of the CrPC praying for quashing and setting aside the Itanagar Women Police Station FIR No.178/2021, under Section 376 of the Indian Penal Code (IPC) read with Section 6 of the POCSO Act along with charge sheet being C.S. No.26/2022 under Section 376 of the IPC.

¶3The 18 years old victim girl had a love affair with Namjay @ Namgey Tsering since 2018. In fact, they used to live together as husband and wife. On one occasion, she became pregnant and both decided that she should have abortion. Accordingly, medical procedure was done and the pregnancy was aborted. Thereafter, the girl had a quarrel with the petitioner Namjay @ Namgey Tsering and he left her company.

¶4Later on, the girl lodged the FIR before police alleging that he had committed rape upon her.

¶5During investigation, the victim was medically examined and it was found that she was 22 to 24 years old at that time.

¶6Now, both sides have come together to this Court stating that they have settled their disputes and also entered into an amicable settlement.

¶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: Page No.# 3/4 "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 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 Page No.# 4/4 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 back 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 in this case. Thus, it is a fit case for exercising the power under Section 482 of the CrPC.

¶11In view of the above, the Itanagar Women Police Station FIR No.178/2021, under Section 376 of the Indian Penal Code (IPC) read with Section 6 of the POCSO Act along with charge sheet being C.S. No.26/2022 under Section 376 of the IPC, is set quashed and aside. The Criminal Petition stands disposed of accordingly.

JUDGE Comparing Assistant