Gauhati High Court
Faridul Islam vs The State Of Assam And Anr on 27 April, 2022
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GAHC010208392019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./991/2019
FARIDUL ISLAM
S/O ABU BAKKAR @ ABU BAKKAR SIDDIQUE, R/O ULUBARI, WARD NO. 4,
P.S.-BHELOWGURI, DIST-MORIGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:NURUL ISLAM
S/O ABDUL KHALEK
R/O ULUBARI
P.O.-DOLOIGAON
P.S.-BHELOWGURI
DIST-MORIGAON
ASSAM
PIN-78212
Advocate for the Petitioner : S HUDA
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
27.04.2022.
By way of this petition under Section 482 of the CrPC, the petitioner sought for quashing the
charge sheet and proceeding, pertaining to G.R. Case No.2482/2016, under Section 376(2)(i)
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IPC, read with Section 4 of the POCSO Act, pending before the learned Special Judge,
Morigaon.
Heard the learned counsel for the petitioners as well as the learned Addl. P.P., Assam,
appearing for the State respondent and gone through the scan copy of the LCR, that have
been received.
Referring to the documents that have been annexed with the present petition, it is contended
that on similar accusation, another case was filed against the petitioner on 15.08.2013, vide
Annexure-A, which was registered as the Moirabari P.S. Case No.106/2013, under Sections
366(A)/120(B) of the IPC, wherein charge sheet was filed against the accused and after the
trial, the Court of learned Asstt. Sessions Judge, Morigaon, in Sessions Case No.171/2014 had
acquitted the accused/petitioner on the basis of statement of the victim girl, who has
disclosed that out of love and affection, she eloped with him and there was no kidnapping, as
alleged, vide judgment dated 16.05.2015 (Annexure-C).
Subsequently on 29.09.2016, one complaint was lodged before the Court vide C.R.
No.1126/2016, by the father of the victim contending that the accused person kidnapped his
daughter about three years ago and kept her with him for around 2 years, with the assurance
to marry her but now she has been driven out from the house of the accused. It is also
alleged that during her stay with the accused/petitioner, he committed sexual intercourse with
her, as a result she became pregnant and thereafter he cause miscarriage of the child by
administering tablets and consequently she was compelled to take shelter in her parents'
house.
The aforesaid complaint was forwarded to the police to register a case and to investigate the
matter. Accordingly the Bhelowguri P.S. Case No.87/2016, under Section
448/366(A)/376/313/406/201/34 IPC, which has now ended up with filing of the charge sheet
under Sections 376(2)(i) IPC, read with Section 4 of the POCSO Act.
Now it has been contended by the learned counsel for the petitioner that it will amount to
double jeopardy, if the said proceeding is allowed to continue against him, as on the similar
accusation, the petitioner has already been acquitted on the basis of statement of the victim
girl, who is stated to be major one. In this regard, the learned counsel for the petitioner has
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referred to the statement of the victim given in the earlier case, vide Annexure-B, given under
Section 161 CrPC, that she out of love and affection has eloped with the petitioner and in the
judgment also, the learned trial Court has discussed about the statement of the victim, while
she is a major girl and out of love and affection, she voluntarily went with the accused, no
offence under Section 366(A) IPC has been made out and acquitted the accused on
16.05.2015.
I have heard the submission of learned counsel for the petitioner and also the learned Addl.
P.P., Assam.
The learned Addl. P.P., Assam has submitted that the present set of cause of action is
different than that of earlier and trial is necessary to unearth the actual picture behind the
case.
On perusal of both the FIRs and the charge sheets, etc., it reveals that the present set of
offence is subsequent to that of the earlier i.e. after acquittal of the accused from the case
that was filed earlier, wherein the petitioner is alleged to have ousted her from his house after
miscarriage her child, on being pregnant and the present allegation is found to be different
altogether. Although in view of the earlier statement given by the victim, the ingredients of
offence under Section 371 IPC read with Section 4 of the POCSO Act, is to be considered in
the light of the statement given in the earlier case.
It is to be noted that although the case was initially registered under Section 313 IPC but the
charge sheet has not been filed under the said Section of law. Still yet, the learned trial Court
is in a position to appreciate all the matters including the statement of the victim as regards
what to be the appropriate Section of law for framing the charge against the accused.
Obviously if the victim is found to be a major, then the provision of Section 4 of the POCSO
Act will not be applicable and the offence under Section 376 IPC is also not found to be
considered, in the light of the statement of the victim in both the cases.
On a query made by the Court, it has been apprised that the trial of the case is at the stage
of framing the charge. On the other hand, it is to be noted that in view of the new set of
occurrence which is different than that of earlier facts and circumstances, the initiation of
subsequent case and filing of the charge sheet cannot be discarded.
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The petitioner has the liberty to raise all those issues before the learned trial Court, at the
time of framing of charge in appropriate time and the learned Court will consider all the
issues raised and pass appropriate order.
Accordingly in the opinion of this Court, this is not a fit case for quashing of the charge sheet
and proceeding, pertaining to G.R. Case No.2482/2016 and the same is dismissed with the
liberty to the petitioner to raise those issues before the trial Court.
The petition stands disposed of accordingly.
JUDGE
Comparing Assistant
