Gauhati High Court

Page No.# 1/4 vs The State Of Assam And Anr on 10 March, 2021

                                                                      Page No.# 1/4

GAHC010234442017




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : Crl.Pet./484/2016


         MD. NIZAM UDDIN and ANR.
         S/O ABDUL SUFAN

         2: MD. ABDUL SUFAN
         S/O LT. JANAB ALI BOTH ARE RESIDENTS OF VILL- KOROIUNI
          P.S. MURAJHAR P.O. KOROIUNI
          PIN - 782439
          DIST. HOJAI
         ASSAM PHONE NO. 80117-78927.
         VERSUS

         THE STATE OF ASSAM and ANR.


         2:MUSSTT. KAMLARUN NESSA
         W/O MD. AYUB ALI R/O BORDOLONG
         WARD NO. 3
          MAUZA AND P.S. LANKA
          DIST. HOJAI
         ASSAM
          PIN - 782446.
          ------------
         Advocate for : MR.ALHAJJ INAM UDDIN
         Advocate for : MR.A H M R CHOUDHURYR-2 appearing for THE STATE OF
         ASSAM and ANR.
                                                                                  Page No.# 2/4


                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                          ORDER

Date : 10-03-2021

Heard the learned counsel, Mr. A. I. Uddin appearing for the petitioners. Also, heard Mr. R. J. Baruah, the learned Addl. P.P. for the State of Assam.

2. This is a petition filed under Section 482 of the Cr.P.C. praying for quashing of the order dated 24.02.2016 of taking cognizance of offence in a Sessions Trial case passed by the Magistrate in C.R. Case No. 1062 of 2015.

3. One lady has alleged that Md. Nizam Uddin, who is the brother-in-law of her married the daughter and Md. Abdul Kadir the brother of the father-in-law of her daughter had come to her house on the day of occurrence. The complainant lady has stated in the complaint petition that the aforesaid persons had come to her house to compromise a case which was filed against her by the father-in-law of her daughter. Both the said persons took the complainant to Lanka in their motor cycle. On reaching Lanka, they asked the women to board a Tata Suma vehicle, which belonged to the father-in-law of her daughter. He was also present there with the vehicle so the complainant along with the father-in-law of her daughter started to travel in the Tata sumo towards Nagaon town. The complainant woman has alleged that before reaching Nagaon town, the father-in-law of her daughter had forcefully covered her eyes and mouth with a 'Gamucha'. Thereafter, the women was beaten up and also threatened of dire consequence. In the meantime, vehicle arrived at an unknown destination. Then the father-in-law of the daughter of the complaint, disrobed her and committed rape upon her. Thereafter, the said vehicle brought back the complaint to Lanka town and dropped her there.

4. After receiving the complaint petition, the Magistrate examined the complainant and her daughter. She supported the allegation made by the Page No.# 3/4

complainant. The Magistrate further examined 2(two) other witnesses and finally took cognizance of the offence under Section 368 and 376 of the IPC, read with Section 34 of the said code.

5. I find that there is no procedural error committed by the Magistrate in taking cognizance of the offence. The power under Section 482 of the Cr.P.C. is the inherent power of the High Court. This power is to be exercised for preventing the abuse of the process of the Court and for advancing the cause of justice.

6. In the case of State of Haryana v. Bhajan Lal, reported in 1992 Supple. 1 SCC 335, the Apex Court, in Paragraph No. 102 of the judgment, has held, 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 channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such powers 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 entirely 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 expert 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 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 Page No.# 4/4

vengeance on the accused and with a view to spite him due to private and personal grudge."

7. The learned counsel, Mr. Uddin has relied upon 2(two) decisions of the Hon'ble Supreme Court that was rendered in (2012) 10 SCC 303 in the case of Gian Singh v State of Punjab & Anr. and another (2017) 9 SCC 641 in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbai Karmur and Ors. V. State of Gujarat and Anr.

8. In the case of Gian Singh (Supra), the petitioner was convicted under Section 420 and 120(B) of the IPC. He filed an appeal before a Sessions Court. During the pendency of the appeal, a petition for compounding was filed and the Sessions Judge directed the same to be taken up along with the main appeal. Thereafter, the petitioner filed a petition under Section 482 of the Cr.P.C. before the High Court and the same was dismissed. Petitioner then approached the High Court. In Parbatbhai Aahir (supra), the petition under Section 482 of the Cr.P.C. was filed in the matter of a case under Sections 384, 468, 471, 120(B) of the IPC. The story of the case relates to some dispute regarding sale of lands.

9. There is a catena of decisions of the Supreme Court which states that heinous offence like murder, rape, etc. cannot be quashed under Section 482 of the Cr.P.C. In Bajan Lal (Supra), the High Court has cautioned that the power under Section 482 of the Cr.P.C. is to be used only in rare cases.

10. Reverting to the case in hand, the complaint petition taken in its face value, discloses a prima facie case. Sexual offence is offence against the entire society at large. It affects the public. This court is of the opinion that this is not a fit case for exercising the power under Section 482 of the Cr.P.C.