Page No.# 1/12 vs The State Of Assam And Anr
2025 Latest Caselaw 6828 Gua

Gauhati High Court

Page No.# 1/12 vs The State Of Assam And Anr on 29 August, 2025

                                                               Page No.# 1/12

GAHC010225682024




                                                          2025:GAU-AS:11270

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

                       Case No. : Crl.Pet./1345/2024

         DR. PARTHA ROY AND ANR
         S/O LATE BAGALA PRASANNA ROY, R/O NUTUNPARA, COLLEGE ROAD,
         NEAR SAMPRITI CLUB, P.O AND P.S.-BONGAIGAON, DIST- BONGAIGAON,
         PIN-783380

         2: SMT. MAYA ROY
         W/O LATE BAGALA PRASANNA ROY
          R/O NUTUNPARA
          COLLEGE ROAD
          NEAR SAMPRITI CLUB
          P.O AND P.S.-BONGAIGAON
          DIST- BONGAIGAON
          PIN-78338

         VERSUS

         THE STATE OF ASSAM AND ANR
         REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

         2:SMT. BARNALEE DAS
          D/O LATE SUBRATA DAS
          R/O PIYALI PHUKAN PATH
          PANIGAON
          DIST- NAGAON
         ASSAM
          PRESENTLY POSTED AT STATE BANK OF INDIA
         TEZPUR REGIONAL OFFICE
          S.B.I. TEZPUR HOME LOAN ACCOUNT CELL
         TEZPUR-78400
                                                                         Page No.# 2/12



Advocates for the petitioner : Mr. D Dey

Advocate for the respondent: Mr. A.H Khandakar
                             Mr. S Nawaz

                                       BEFORE
                    HON'BLE MRS. JUSTICE SHAMIMA JAHAN


Date of Hearing           :    22.08.2025.


Date of Judgment         :    29.08.2025.



                          JUDGMENT AND ORDER (ORAL)

Date - 22.08.2025

1. Heard Mr. D Dey, learned counsel for the petitioners. Also heard Mr. A.H Khandakar and Mr. S Nawaz, learned counsel appearing on behalf of the respondent No. 2.

2. This is an application filed under Section 528 of the B.N.S.S, 2023 for quashing and setting aside of the F.I.R dated 28.04.2013 filed by respondent No. 2 which was registered as Bongaigaon P.S Case No. 231/2013 under Section 498A I.P.C corresponding to G.R Case No. 364/2013. The petitioners have also challenged the charge-sheet submitted in the instant case vide charge-sheet No. 246 of 2013 on 18.08.2013 as well as the subsequent proceedings carried on before the Court of Hon'ble Chief Judicial Magistrate, Bongaigaon.

3. The facts of the case is that the petitioner No. 1 and the respondent No. 2 got married on 11.12.2009 and carried on their conjugal life. However, due to some problem, the respondent No. 2 lodged a First Information Report before the Superintendent of Police, Nagaon which was initially registered as Nagaon P.S Case Page No.# 3/12

No. 604/2013. But the same was transferred to Bongaigaon and registered as Bongaigaon P.S Case No. 231/2013. The petitioners i.e. the husband and his mother applied for a pre-arrest bail before the Hon'ble Gauhati High Court and the same was allowed. The petitioners had also filed a petition under Section 482 of the Cr.P.C for quashing of the said F.I.R before the Hon'ble Gauhati High Court. However, the same was rejected on 13.06.2013. The police, on completion of the investigation, submitted charge-sheet, as mentioned above against the petitioners which was put to challenge by the petitioners before the Hon'ble Gauhati High Court, but the same was withdrawn on 17.11.2015.

4. During the trial of the instant case, the prosecution adduced all the witnesses along with the Investigating Officer and at that juncture, the Ld. Additional Public Prosecutor filed a petition under Section 319 of the Cr.P.C before the Hon'ble Chief Judicial Magistrate, Bongaigaon for issuing summons to all the accused persons named in the F.I.R, which was, however, rejected by the Court below. Aggrieved by the said rejection order, the respondent No. 2, i.e. the wife of the petitioner, preferred the Criminal Revision Petition before the Hon'ble Gauhati High Court which was partly allowed vide order dated 14.10.2018 by which the brother and father of the petitioner No. 1 were directed to be made accused in the said petition. However, the father died on 26.10.2018 and the brother preferred the appeal before the Hon'ble Supreme Court by filing S.L.P being registered vide Diary No. 6462 of 2019 and the Hon'ble Supreme Court, after hearing, stayed the proceeding qua the petitioner i.e. the brother of petitioner No. 1 vide order dated 01.04.2019.

5. During the pendency of the said S.L.P as well as other proceedings between the petitioners and respondent No. 2, an amicable settlement was reached between the parties by which it was decided that the parties would withdraw their respective cases before the Courts of Law and a said memorandum of understanding was executed between the petitioner No. 1 and respondent No. 2 on 02.08.2019 at Nagaon. It was Page No.# 4/12

specifically mentioned in paragraph No. 3 of the said memorandum of understanding that in light of the terms and conditions of the amicable settlement arrived at between the parties and in full and final settlement of all their past disputes and grievances arising out of marital relationship, the respondent No. 2 shall put her sincere efforts and take the necessary steps for lawful acquittal of petitioner No. 1 and other accused persons in G.R Case No. 364/2013 by appearing in person before the Court of Hon'ble Chief Judicial Magistrate, Nagaon and/or as and when summoned. It was also agreed that the petitioner No. 1 and his relatives shall take all necessary steps for withdrawal of the cases that they have filed before the concerned Courts.

6. The parties had also decided that they have file a joint petition before the Ld. Additional District Judge No. 2, Nagaon in the matrimonial suit 22 of 2019 praying for grant of divorce on mutual consent and that the petitioner No. 1 would pay a sum of Rs. 15,00,000/- towards future education and well-being of his minor son along with a further sum of Rs. 15,00,000/- to his wife as a permanent alimony. The sum would be deposited through demand draft to the bank account of respondent No. 2and that the respondent No. 2 would keep the said amount of Rs. 15,00,000/- in fixed deposit in a nationalized bank in the name of her minor son until he attains majority. It was also decided that respondent No. 2, who was in bank service who is capable of maintaining herself and her minor son, shall not make any future demand for any reason whatsoever and that after divorce, both the parties would be entitled to remarry, as per their choice and desire. It was also decided that the minor son shall remain under the custody of his mother i.e. respondent No. 2 who will look after and shall provide him education in the best possible manner.

7. In view of the said settlement reached between the parties, petitioner No. 1 and respondent No. 2 filed a mutual divorce petition before the concerned Court and the said application was disposed of on 02.08.2019 by which the marriage between the petitioner No. 1 and respondent No. 2 was dissolved and a decree, thereof, was Page No.# 5/12

passed on 07.08.2019 by incorporating the various conditions to the effect of maintaining the child provided in the memorandum of understanding.

8. It be stated here that before the said memorandum of understanding was entered into, the cousin brother of the petitioner No. 1 had filed a money suit being M.S No. 17/2013 against respondent No. 2 and the said money suit was also withdrawn by the said cousin brother, in view of the said memorandum of understanding.

9. In pursuance to the said memorandum of understanding and in view of the settlement reached, the brother of petitioner No. 1, who had filed an S.L.P before the Hon'ble Supreme Court, had also withdrawn the said case being allowed by the Hon'ble Supreme Court on 01.05.2023. The respondent No. 2, who also had filed a Criminal Appeal being Criminal Appeal No. 51 of 2025 which was filed against the dismissal order in the Domestic Violence Case filed by respondent No. 2 was also withdrawn by respondent No. 2.

10. The petitioner No. 1 and his family members, in response to the decision in the said memorandum of understanding has withdrawn all the cases pending in various Courts. However, the criminal case filed by respondent No. 2 which was pending before the Court of Hon'ble Chief Judicial Magistrate, Bongaigaon vide G.R Case No. 364/2013 registered under Section 498A I.P.C was kept pending which was not withdrawn by respondent No. 2 and that as stated above, it was decided that respondent No. 2 would appear before the Ld. Court. The case was listed on 04.11.2023 and it is seen in the order passed by the Hon'ble Chief Judicial Magistrate, Bongaigaon that the Ld. Additional Public Prosecutor had taken steps for issuance of notice upon the respondent No. 2, but the said respondent No. 2 did not appear in the said case and the Hon'ble Court, although had noticed that a memorandum of understanding has been entered between the parties and in pursuant to the same, cases were withdrawn by the petitioners, but since there was no direction from any Court or the Hon'ble Supreme Court for stopping the proceedings of the G.R Case, the Page No.# 6/12

Ld. Court proceeded as per the provisions of law and had fixed the case for defence evidence. On an earlier date too i.e. on 15.07.2023, the respondent No. 2 did not appear.

11. Since respondent No. 2 did not withdraw the said case, the petitioners filed an application before the Hon'ble Chief Judicial Magistrate, Bongaigaon stating, inter alia, that a memorandum of understanding was entered into between the parties i.e. petitioner No. 1 and respondent No. 2 for settlement of all the issues pending between the parties with the further agreement that both the parties would withdraw cases amongst them filed before different Courts of Law and that respondent No. 2 had specifically agreed as reflected in the said memorandum of understanding that she shall put her sincere efforts and take the necessary steps for lawful acquittal of petitioner No. 1 and other accused persons in the said G.R Case on receiving summons from the concerned Court. As such, the petitioners prayed by that application that the respondent No. 2 may be summoned to appear before the Court for re-examination in view of the memorandum of understanding entered into between the parties.

12. The Court of Hon'ble Chief Judicial Magistrate, Bongaigaon vide order dated 07.09.2024, after hearing both the sides, decided that it would be appropriate to recall the respondent No. 2 for her re-examination and directed the Ld. Additional Public Prosecutor to take steps within 3(three) days of the said order and had fixed the said matter on 14.10.2024 for re-examination of respondent No. 2.

13. In view of the said facts and being aggrieved by the actions of respondent No. 2, the petitioners have filed this Criminal Petition for quashing of the F.I.R, the charge-sheet as well as the subsequent proceedings. Mr. D Dey, learned counsel appearing on behalf of the petitioners submits that the petitioner No. 1 and respondent No. 2 had mutually agreed to settle their differences by entering into the memorandum of understanding wherein it was specifically stated that owing to Page No.# 7/12

differences in temperaments, habits, tastes, thoughts and increasing incompatibility, the relationship between the first and the second party i.e. the petitioner No. 1 and respondent No. 2 had deteriorated and that the same led to continuance of marital life impossible and loathsome. It was further stipulated in the said memorandum of understanding that to save the dignity and prestige of the respective families, the parties had although lived together for many years but then they decided to part ways and live peacefully. In view of the said backgrounds, the parties had decided to withdraw all the cases pending between them before the different Courts of Law. He has also submitted that in pursuant to the said settlement reached between the parties, the divorce was granted by the concerned Court and all other cases were withdrawn by the petitioner and his relatives pending before the Courts including the Hon'ble Supreme Court of India. He pointed out to the averments made in the said memorandum of understanding in which it was stated that respondent No. 2 would sincerely try her best to get the petitioner and other family members acquitted from the said G.R Case being G.R Case No. 364/2013 pending before the Court of Hon'ble Chief Judicial Magistrate, Bongaigaon, but respondent No. 2, in spite of notices being issued to her, did not appear before the Court. He also submits that the Hon'ble Chief Judicial Magistrate, Bongaigaon had allowed the petition of the petitioners for re- examination of respondent No. 2, in view of the said memorandum of understanding and had fixed a date for re-examination of respondent No. 2, but the respondent No. 2did not appear, in spite of the promise made by her in the said memorandum of understanding.

14. The substantiate his arguments, the learned counsel for the petitioner placed reliance on the following judgments :

(1) B.S Joshi and Others V, State of Haryana and Another reported in 2003 Vol. 4 SCC 675.

(2) Madhukar and Others V. State of Maharashtra and Another Page No.# 8/12

reported in 2025 SCC Online SC 1415.

15. On the other hand, Mr. A.H Khandakar, learned counsel appearing for respondent No. 2 submits that there was no malafide intention on the part of respondent No. 2and he submits that the respondent No. 2did not receive summons from the Court of Ld. Chief Judicial Magistrate, Bongaigaon. He by referring to the memorandum of understanding stated that the respondent No. 2agreed that she would give her sincere efforts to get the petitioner and other accused persons lawfully acquitted from the said G.R Case being G.R Case No. 364/2013 as and when she receives the summons and that since summons were not received by her, she could not comply with the conditions/agreements. These are the submissions of the learned counsel appearing on behalf of the respondent No. 2.

16. I have heard learned counsels for both the sides and have gone through the records.

17. It is noticed that the petitioner No. 1 and respondent No. 2 got married in the year 2009 and since then they led a conjugal life and that after 4 years, the respondent No. 2 lodged an F.I.R before the Superintendent of Police, Nagaon, alleging various atrocities committed upon her. In the said F.I.R, she stated that the petitioner No. 1, along with his family members had demanded money from her mother as dowry and when at times they refused to pay the money, the petitioner No. 1 is alleged to have beaten her up severely. It was also alleged that the petitioner No. 1 used to snatch her phone from her possession and that at times he sends her away to her parental house with her child who was sick, at that juncture. Then, unable to bear the atrocities, the respondent No. 2 had thought of committing suicide. She also stated that the accused persons i.e. the petitioner No. 1 and his family members have regularly abused her and have also threatened to kill her. In the said F.I.R, she arrayed 7 accused persons i.e. the petitioner No. 1 and his family members.

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18. The police, after completion of the investigation, however, submitted charge-sheet against only the 2 petitioners. Thereafter, as stated above, on an application made by the respondent No. 2 before the Hon'ble Gauhati High Court, one more relative of the petitioner No. 1 i.e. the brother was directed to be arrayed as an accused who, however, approached the Hon'ble Supreme Court and got a stay vide order dated 01.04.2019. During pendency of the said application before the Hon'ble Supreme Court as well as other Courts, the said memorandum of understanding was entered into between the parties and in the said memorandum, it was clearly stipulated by both the parties that all the cases would be withdrawn from the respective Courts of Law and that the parties i.e. the petitioner No. 1 and respondent No. 2 would get divorced by making necessary application before the concerned Courts. In view of the same, the cases pending before the Courts of Law were withdrawn viz:

(i)     The S.L.P before the Hon'ble Supreme Court.

(ii)    The money suit being money suit No. 17 of 2013 before the Court of Ld. Civil
Judge, Bongaigaon.

(iii)      The Criminal Appeal being numbered 51 of 2015 pending before the Court of
Ld. Additional Sessions Judge No. 3, Nagaon.

19. In respect of the G.R. Case being numbered 364/2013, the petitioner No. 1 and respondent No. 2 has agreed in the following terms :

"in the light of the terms and conditions of amicable settlement arrived at in between the parties hereto for full and final settlement of all their past disputes and grievances arising out of their marital relationship, shall put her sincere efforts and shall take all necessary steps for lawful acquittal of the First Party and all other accused persons of G.R Case No. 364/2013 by appearing in person before the Hon'ble Court of Chief Judicial Magistrate, Bongaigaon, and/or as and when summoned".

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20. It is abundantly clear from the aforesaid agreement between the parties that the respondent No. 2 would take all necessary steps for lawful acquittal of the First Party and other accused persons in the said G.R Case No. 364/2013 and respondent No. 2 had also promised to do the same by appearing in person before the concerned Court. However, it is further stated in the said agreement that respondent No. 2 would do the needful as promised by her as and when summoned. This shows that a rider was added in withdrawing the said case. In the order passed by the Hon'ble Court of Chief Judicial Magistrate, Bongaigaon on 04.11.2023, it is seen that the Ld. Additional Public Prosecutor had taken steps for issuance of notice upon the informant, but the Ld. Additional Public Prosecutor apprised the Court that the respondent No. 2 had failed to appear in the Court.

21. The petitioners had again made an application under Section 311 of Cr.P.C praying before the Court that respondent No. 2 may be called for re- examination since the situation has changed and the parties have amicably settled their disputes which the Hon'ble Court allowed and directed the Ld. Additional Public Prosecutor to take steps for service of notice upon respondent No. 2.

22. The respondent No. 2, by the said memorandum of understanding, had agreed upon by categorically stating that she would try her best and would give her sincere efforts to get the petitioner and other accused persons lawfully acquitted from the said G.R Case by appearing personally on receipt of summons.

23. During the proceedings of the instant Criminal Petition, the said argument was made by the learned counsel appearing for respondent No. 2 that the respondent No. 2 had not received summons and on the said argument, this Court, vide order dated 26.06.2025, had ordered that the orders issuing summons by the Hon'ble Court of Chief Judicial Magistrate, Bongaigaon may be brought on record. In compliance with the said orders, the petitioners had filed an affidavit on 14.07.2025 bringing on record, 2 orders by which it is seen that the respondent No. 2 was put to Page No.# 11/12

notice but in the said order it is clearly reflected, more specifically in the submission of the Ld. Additional Public Prosecutor, that respondent No. 2 had failed to appear, in spite of the said notice. This shows that respondent No. 2 had deliberately not appeared before the Hon'ble Court of Chief Judicial Magistrate, Bongaigaon, for reasons best known to her. She has also not complied with the agreement entered into between the parties. Although the petitioner No. 1 and the other accused persons have all complied with the conditions of the agreement, as stated above.

24. In State of Haryana V. Bhajan Lal, reported in 1992 supplementary 1 SCC 335, the Hon'ble Supreme Court had laid down the guidelines in compliance of which a case can be quashed and one of the guideline is :

"Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge".

25. It is noticed in the instant case that respondent No. 2 having not appeared before the Ld. Trial Court, in spite of the undertaking that she would appear on receipt of summons and would give her efforts to get the petitioners acquitted shows that she is wrecking vengeance on the accused and his family members which cannot be allowed as held by the Hon'ble Supreme Court. The Ld. Additional Public Prosecutor had clearly submitted before the Ld. Trial Court that respondent No. 2 had failed to appear in spite of steps taken by her and the notices served upon her. It is also noticed that in pursuant to the memorandum of understanding, the divorce was also granted between the parties by the concerned Court and the decree was passed. It was also noticed that the petitioner had given Rs. 30,00,000/- in total i.e. Rs. 15,00,000/- as permanent alimony and Rs. 15,00,000/- to his son for his education and upbringing and the same was deposited by way of demand draft through the bank account of respondent No. 2 which was accordingly, received by respondent No.

2. Page No.# 12/12

26. In the said memorandum of understanding dated 02.08.2019, the opening words before entering into the various settlements, were that due to intervention of friends, near relatives and well-wishers, the petitioner No. 1 and respondent No. 2 have amicably settled their disputes fully and finally and as such, the memorandum of understanding is executed between the parties for releasing each other from future matrimonial and other responsibilities, marital obligations and other claims pertaining to their marriage. In view of the same, it is not called for that the respondent No. 2 would not appear before the Ld. Trial Court and that she has to do the needful for acquittal of the petitioner No. 1 and his relatives. It is further noticed that in view of her non-appearance, the Ld. Court had directed that the case may be proceeded with and have fixed the case for defence evidence on a subsequent date.

27. In view of the memorandum of understanding, the continuance of the G.R Case being G.R Case No. 364/2013 is uncalled for. Although the exercises by the Ld. Chief Judicial Magistrate, Bongaigaon in continuing the same is not illegal. However, since the respondent No. 2 has deliberately not appeared before the Ld. Trial Court and on the submission of the learned counsel for respondent No. 2 that the respondent No. 2 has not received the summons, this Court finds it fit that the instant case may be allowed. In view of the same, the F.I.R dated 28.04.2013 filed by respondent No. 2 which was registered vide Bongaigaon P.S Case No. 231 of 2013 as well as the subsequent charge-sheet being charge-sheet No. 246/2013 dated 14.08.2013 submitted in connection with the said Bongaigaon P.S Case and the subsequent proceedings, thereby, set-aside and quashed.

28. Crimimal Petition is allowed and disposed of.

JUDGE

Comparing Assistant