Lakhinandan Gogoi vs The State Of Assam And Anr
2022 Latest Caselaw 3101 Gua

                                                              Page No.# 1/16

GAHC010077352022




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

                               Case No. : Crl.Pet./373/2022

            LAKHINANDAN GOGOI
            S/O JUGANANDA GOGOI
            R/O MOINAPARA GHILAMARA
            P.O. AND P.S. GHILAMARA
            DIST. LAKHIMPUR, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY THE PP, ASSAM

            2:SMTI. MAINI CHAMUA
             D/O LATE HARESWAR CHAMUA
            R/O AMBEES APARTMENT

            KAHILIPARA
            GUWAHATI
            DIST. KAMRUP (M)
            ASSAM
            PIN-781019
            MOBILE NO. 936543713

Advocate for the Petitioners: Mr. K. N. Choudury, Sr. Adv.
                              Mr. S. Barthakur, Adv.



Advocate for the Respondent : Ms. A. K. Bhuyan, Adv.

Mr. D. Das APP Page No.# 2/16

BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN Date of hearing : 21.07.2022 Date of verdict : 22.08.2022

VERDICT (CAV)

Heard Mr. K. N. Choudury, learned senior counsel, assisted by Mr. S. Barthakur, learned counsel for the petitioner and also heard Mr. D. Das, learned Additional Public Prosecutor Assam for the respondent No. 1 and Mr. A. K. Bhuyan, learned counsel for the respondent No. 2.

2. This application, under Section 482 of the Criminal Procedure Code, is preferred by the petitioner- Shri Lakhinandan Gogoi for quashing the F.I.R of Dispur P.S. Case No. 3821/2021, under Sections 376/417 IPC and the Charge- Sheet dated 30.11.2021, filed under Sections 417/376/493 IPC against the petitioner.

3. The factual background leading to filing of this petition is briefly stated as under: -

"On 18.10.2021, the informant - Smti. X (name withheld) lodged one FIR with the Dispur Police Station to the effect that accused Shri Lakhinandan Gogoi was in relationship with her since 2019, during the last April he brought her to MBEES Apartment Flat No. 201 at Ganeshguri promising to marry her and both of them lived together as husband and wife in the said Page No.# 3/16

flat, thereafter, on 22.09.2021, the accused including his father, mother, uncle and aunt and elder people of the family came to discuss about the marriage and fixed 21.11.2021, as the date for solemnization of their marriage but on 15.10.2021, when all the arrangements of the marriage was being made and the invitation card was also printed then the accused through SMS informed her that he is not willing to marry her. It is also alleged that during their living together on many occasions he forcefully established physical relationship with her and after the SMS on 19.10.2021, while she came to the apartment, she found the accused left the apartment with all his belongings and in a pre-plan manner he disappeared and in pre-plan manner he caused harm to her physically, mentally and socially. Upon the said FIR, the O/C of Dispur police station registered Dispur P./S. Case No. 3821/2021 under Sections 417/376 IPC and endorsed S.I. Shri Abhijit Dihingia to investigate the case. The I.O then visited the place of occurrence, examined the witnesses and got the victim examined by Doctor and collected the report and on completion of investigation, and having found a prima-facie case, made out under Section 417/376/493 IPC, laid charge sheet against the petitioner, to stand trial in the Court under the said sections of law."

4. Being aggrieved, the petitioner has approached this court by filing the present petition for quashing the FIR and the charge sheet of Dispur P./S. Case No. 3821/2021, under Sections 417/376 IPC on the ground that the FIR has been lodged by the informant to wreak vengeance on the petitioner, as the petitioner had turned down her offer to start a conjugal life and that at no point of time he did live with her in Flat No. 201 MBEES Apartment Flat at Ganeshguri as husband and wife and that he helped the informant on number of occasion Page No.# 4/16

on different humanitarian consideration he never developed soft corner towards her and though she insisted on a long standing relationship, the petitioner did not want to have such relationship and declined that offer and being agitated at his refusal she lodged the FIR with concocted story and that no ingredients of the offence under Sections 417/376/493 IPC is made out and she has stated contradictory fact and on the one hand she claims having lived together as husband and wife. On the other hand, she is claiming that the petitioner had established forceful physical relationship with her and as such under no stretch of imagination it can be said that under Sections 417/376 IPC are made out against him and assuming the allegations made in the FIR to be true, it can be while inferred that the alleged relation was quiet consensual in nature and as such under Section 417/376 IPC cannot be said to be made out against the petitioner, and the petitioner was arrested and granted bail in BA/2987/2021 and after perusal of the case diary, this Court was pleased to grant him bail observing that materials in the case diary reveals that an informant was in love relationship with the accused since 2019, and in the month of April, 2021, the petitioner took her AMBEES Apartment Flat No. 201 promising to marry her and both of them live together as husband and wife and in view of the aforesaid clear finding Sections 376/417 IPC will not be attracted here in this Case and allowing the proceeding to continue would be an abuse of the process of the Court and therefore, it is contended to quash the FIR and also the charge sheet filed against the petitioner which is bad in law, and violates the constitutional right of the petitioner has enshrined in article 21 & 22 of the constitution of India.

5. Mr. K. N. Choudury, learned Senior counsel appearing for the petitioner submits that registration of the FIR against the petitioner and submission of Page No.# 5/16

charge sheet is bad in law, and that there was no ingredients of the offence under Sections 376/417 IPC is attracted and there was no false promise herein this Case instead there was breach of promise and that the informant is a consenting party and no deception is made out here in this case to attract Section 417 IPC, and since she is consenting party no case under Section 376 IPC is made out and at best it may be a case of breach of promise and if there is breach of promise, there is no criminality. Mr. Choudhury, therefore, contended to allow this petition by quashing the FIR and the charge sheet. Mr. Choudhury, referred one case law Pramod Suryabhan Pawar vs. State of Maharashtra and Another reported in (2019) 09 SCC 608, to bolster his submission. In the said case Hon'ble Supreme Court has held as under:-

" 18. To summerise the legal proposition that emerges from the above cases, the 'consent' of a woman with respect to section 375 must involve an active and reasoned deliberation towards to proposed act. To establish whether the consent was vitiated by a 'misconception of fact' arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

6. On the other hand, Mr. A. K. Bhuyan, learned counsel for the respondent No. 2, referring to paragraph No. 9 of the Judgment referred by Mr. K. N. Choudhury submits that the factual matrix in the Case is quite different from the Case referred by Mr. K. N. Choudhury, learned counsel for the petitioner. Mr. Bhuyan, submits that a bare perusal of the FIR and the charge sheet, offences under Sections 417/376/493 IPC are clearly made out in this case and no case is made out for quashing the FIR and the charge sheet by exercising the jurisdiction under Section 482 Cr.P.C.

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7. Mr. Bhuyan, further, submits that whether it was a breach of promise or it was a false promise, the said fact has to be determined after recording the evidence and at this stage it cannot be said that no offence under the aforesaid provision is made out. Therefore, Mr. Bhuyan, contended to dismiss the petition. Mr. Bhuyan, learned counsel for the respondent No. 2 also referred one Case law i.e., State of Haryana and Bhajan Lal and others reported in 1992 supplementary (1) Supreme Court 335, and also another case - Shri Pramod Das vs. State of Assam in Crl. Rev. P./250/2012 in support of his submission.

8. Mr. D. Das, learned Additional Public Prosecutor for the State respondent No. 1 also subscribe the submission so advanced by Mr. Bhuyan, learned counsel for the respondent No. 2 and submits that the FIR and the charge sheet cannot be quashed at this stage as a prima facie case is made out against the petitioner.

9. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the record of the learned Court below and I find sufficient force in the submission of Mr. A.K. Bhuyan, learned counsel for the respondent No. 2 and also Mr. D. Das, learned counsel for the respondent No. 1. It appears that Dispur P.S. Case No. 3821/2021, under Sections 417/376 IPC has been registered on the basis of one FIR lodged by the informant on 19.10.2021. It is alleged in the FIR that the petitioner had relationship with the informant since 2019 and he brought the informant to Flat No. 201 AMBEES Apartment Flat at Ganeshguri promising to marry her and lived together as husband and wife in the aforesaid apartment and the family members of the petitioner had fixed the Page No.# 7/16

date on 21.11.2021, for solemnization of their marriage, but on 15.10.2021, while the arrangements of marriage was being made and further, purchasing of jewelry, furnitures', etc. was made, and invitation card was printed and then through SMS the petitioner informed her that he is not willing to marry her. It is also alleged that while living together in the said apartment, on many occasion he forcefully established physical relation with her and after receiving the SMS she had visited the apartment on 19.10.2021, but, found the same closed and the accused left the apartment with all the belongings. Upon the said FIR, the O/C Dispur P.S. registered a case and investigated the same and during investigation he has visited the place occurrence, examined the witnesses and got the victim examined by the Doctor and collected the report and also got her statement under section 164 Cr.P.C recorded in the court and thereafter, he arrested the petitioner and forwarded him to the Court and on completion of investigation the I.O laid charge sheet against him, having found a prima facie case made out under Sections 370/417/493 IPC.

10. A cursory perusal of the materials collected during investigation, especially the statement of the victim woman, recorded under Section 161 and 164 Cr.P.C., coupled with the FIR, and the record of the learned court below, would reveal following facts and circumstances :-

(a) There was a love affair between the petitioner and the informant since 2019;

(b) Then the petitioner promised to marry her, and he informed both of their family members;

(c) While the informant came to Guwahati for pursuing her Ph.D., then Page No.# 8/16

the petitioner had forced her to live with him in his Flat No. 201 at AMBEE Apartment, situated at Ganeshguri, and since April 2021 she used to live with him as husband and wife;

(d) Though she disagreed at first, yet, on finalization of their marriage on 21th November 2021, she agreed and started living with him;

(e) As marriage between them had been fixed the petitioner committed sexual intercourse with her forcefully on multiple occasions;

(f) When purchase of clothes, ornaments, furniture etc. and all other arrangement have been completed including printing of invitation card, on 15.10.2021, the petitioner had sent one SMS disagreeing to marry her on the ground that he is not happy with her and thereafter he switch off his mobile;

(g) Thereafter, on 17.10.2021, she visited the AMBEE Apartment and she found the petitioner had already left the same with all his belongings;

(h) The petitioner, promising to marry the informant, had cheated her in a preplanned manner;

11. Thus, it appears that there was an affair of love between the petitioner and the informant. And the informant, while came to Guwahati for pursuing her Ph.D., the petitioner, promising to marry her, forced her to live with him in his Flat No. 201, at AMBEE Apartment, situated at Ganeshguri, since April 2021. She used to live with the petitioner as husband and wife, and though she

disagreed at first, yet, their marriage, having been finalized on 21 st November Page No.# 9/16

2021, she agreed and started living with him and as the marriage between them had been fixed, the petitioner committed sexual intercourse with her on multiple occasions and there was element of force also. Thus, it is apparent that the 'consent' of the informant to the sexual act was actuated by the petitioner with a promise of marrying her.

12. While dealing with the aspect of 'consent' for the purposes of Section 375 IPC, in State of H.P. v. Mango Ram, reported in (2000) 7 SCC 224 , a 3- Judge Bench of Hon'ble Supreme Court held as under:-

"Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."

13. In the case of Uday v. State of Karnataka reported in (2003) 4 SCC 46, Hon'ble Supreme Court had put a word of caution that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court at page 57 of the Report stated:

"...In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact...."

14. Here in this case, from the subsequent conduct of the petitioner i.e. refusing to marry the informant after finalization of marriage and completion of Page No.# 10/16

all arrangement thereof, and thereafter, his conducts of leaving the Apartment with all his belongings and keeping his mobile switch off, goes a long way to show that he had no intention to adhere to the promise so made to the informant to marry her, and it appears to be false and as such the 'consent' so made is vitiated by a 'misconception of fact'.

15. If, all these facts and circumstances are taken together at their face value and accepted in its entirety, it cannot be said that the same do not prima facie constitute any offence or make out a case against the petitioner. And as such this court left unimpressed by the submission of Mr. Choudhury, learned counsel for the petitioner that no offence under Sections 376/417/493 IPC are made out against the petitioner. Therefore, this court is of the considered opinion that the ratio laid down in the case law referred by Mr. Choudhury is not applicable in all forces to the facts herein this case, and the same is rightly pointed out by Mr. A. K. Bhuyan, learned counsel for the respondent No. 2, at the time of hearing.

16. Of course, some sorts of discrepancies are there in her statement under section 164 Cr.P.C. and in the FIR in respect of the time of the informant living with the petitioner. But, this is well settled by a catena of decisions of Hon'ble Supreme Court that this court would not embark upon an enquiry as to whether the evidence in question is reliable or not while dealing with a quashing petition under section 482 Cr.P.C., which is the function of the Trial Magistrate. It is not open for any party to contend that on a reasonable appreciation of the evidence the accusation made against the accused would not sustain, while invoking the jurisdiction of High Court under section 482 Cr.P.C.

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17. In the case of R. P. Kapur vs. State of Punjab, reported in AIR 1960 SC 866; while dealing with inherent power of the High Court under section 561-A of earlier Code, (which is pari-materia with section 482 of the Code) Hon'ble Supreme Court has held that in exercising its jurisdiction under section 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the Trial Magistrate, and ordinarily it will not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained."

18. In the case of Satvinder Kaur v. State (Govt. of NCT of Delhi), reported in (1999) 8 SCC 728, in paragraphs 14 to 16, it is observed and held as under:

"14. Further, the legal position is well settled that if an offence is disclosed the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the FIR, prima facie, discloses the commission of an offence, the court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. [State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561: 1982 SCC (Cri) 283] It is also settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 CrPC to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegation. [Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370, 395: 1985 SCC (Cri) 180]"

"16. Lastly, it is required to be reiterated that while exercising the jurisdiction under section 482 Of the Code of quashing an investigation, the court should bear in mind what has been observed in the State of Kerela vs. O.C. Kuttan reported in (1999) 2 SCC 651, to the following effect- "Having said so, the court gave a note of caution to the effect that the power of quashing the criminal proceedings Page No.# 12/16

should be exercised very sparingly with circumspection and that too in the rarest and rare cases; that the court will not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegation made in the FIR or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim and caprice. It is too well settled that the first information report is only an initiation to move the machinery and to investigate into a cognizable offence and therefore, while exercising the power and deciding whether the investigation itself should be quashed, utmost care should be taken by the court and at that stage, it is not possible for the court to shift the materials to weigh the materials and then come to the conclusion one way or the other."

19. In the case of Zandu Pharmaceutical Works Ltd. vs. Mohd. Sharaful Hoque reported in (2005) 1 SCC 122, in paragraph 11, this Court has observed and held as under:

"11. ... It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premise arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with......"

It is further held that -

"It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by Page No.# 13/16

themselves be the basis for quashing the proceedings."

20. Similar view is expressed in the case of Sanapareddy Maheedhar Sesagiri vs. State of Andhra Pradesh reported in (2007) 13 SCC 165, where it has been held that "High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant.

21. In this Case of State of Orissa vs. Pratima Mohanty, reported in 2021

SCC On Line SC 1222, decided on 11th December 2021, Hon'ble Supreme Court has comprehensively dealt with the powers exercisable and the extent of the jurisdiction of the High Court while deciding a petition under Section 482 of the Cr.P.C., and held as under:-

"6. As held by this Court in the case of State of Haryana v. Ch. Bhajan Lal 1992 Supp (1) SCC 335 : AIR 1992 SC 604, the powers under Section 482 Cr.P.C. could be exercised either to prevent an abuse of process of any Court and/or otherwise to secure the ends of justice. In the said decision, this Court had carved out the exceptions to the general rule that normally in exercise of powers under Section 482 Cr.P.C. the criminal proceedings/FIR should not be quashed. Exceptions to the above general rule are carved out in para 102 in Bhajan Lal (supra) which 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 channelized and inflexible Page No.# 14/16

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."

6.2 It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases. As per settled proposition of law while examining an FIR/complaint quashing of Page No.# 15/16

which is sought, the Court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule. Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge sheet has been filed. At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducing the mini trial. As held by this Court the powers under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the Court to be more cautious. It casts an onerous and more diligent duty on the Court."

22. In the case of Neeharika Infrastructure Private Limited Vs. State of others reported in 2021 SCC online 315, Hon'ble Supreme Court held at the Court cannot embark upon the enquiry as to reliability or genuineness or otherwise of the allegations made in the FIR/complaint.

23. Again, in the case of State of Uttar Pradesh & Anr. Vs. Akhil Sharada & Ors., reported in 2022 Live Law (SC) 594, Hon'ble Supreme Court has held that:-

28. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered. (See State of Odisha v. Pratima Mohanty, 2021 SCC OnLine SC 1222 [paras 14, 15, 16, 18 & 22] (ii) CBI v. Thommandru, 2021 SCC OnLine SC 923

(iii) Rajeev Kourav v. Baisahab, (2020) 3 SCC 317 (iv) Neeharika Page No.# 16/16

Infrastructure v. Maharashtra, 2021 SCC OnLine SC 315;

24. Thus, from the illuminating discourse, the legal proposition in respect of quashing of FIR/Complaint and criminal proceeding under Section 482 Cr.P.C., can be crystallized as under:-

(a) The High Court cannot enter into the merits of the case, or

(b) The High Court cannot embark upon a roving enquiry, or

(c) The High Court cannot conduct a trial as to the reliability or genuineness of allegations made in the FIR, or

(d) The High Court cannot see the probability of conviction on the basis of evidence on record.

25. This being the factual as well as legal position, this court is of the considered view that this is not a fit case where the inherent jurisdiction under Section 482 Cr.P.C. can be invoked to quash the FIR and charge sheet of Dispur P.S. Case No. 3821/2021, under Section 376/417 IPC.

26. In the result, I find no merit in this petition and accordingly, the same stands dismissed. The parties have to bear their own cost.

JUDGE

Comparing Assistant