Gauhati High Court
Page No.# 1/4 vs The State Of Assam And Anr on 12 February, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010026932025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./137/2025
RAKHIF HUSSAIN
S/O ROHIM UDDIN,
RESIDNET OF VILLAGE FERANGIRCHAR PO PIAZBARI, PS SUKCHAR,
DIST SOUTH SALMARA MANKACHAR, ASSAM, 783128
2: XXXX
W/O RAKHIF HUSSAIN
D/O MONIRUL SHEIKH
RESIDNET OF VILLAGE FERANGIRCHAR PO PIAZBARI
PS SUKCHAR
DIST SOUTH SALMARA MANKACHAR
ASSAM
78312
VERSUS
THE STATE OF ASSAM AND ANR
REP BY THE PP, ASSAM
2:ABDUL HAMID SHEIKH
S/O LATE EASIN ALI
RESIDENT OF VILLAGE EASIN ALI
RESIDENT OF GOKULPUR
PS SUKCHAR DIST SOUTH SALMARA MANKACHAR
ASSAM 78312
Advocate for the Petitioner : MR M Z SHAH, MD P RAHMAN
Advocate for the Respondent : PP, ASSAM,
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:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
12.02.2025
Heard Mr. M.Z. Shah, the learned counsel appearing for the petitioners. Also
heard Mr. D. Das, the learned Addl. Public Prosecutor, Assam representing the State.
2. This is a joint application under Section 528 of the BNSS, 2023, praying for
quashing the criminal proceedings of PRC No.648/2024 (arising out of Sukchar P.S.
Case No.21/2023) pending before the court of learned Addl. Chief Judicial Magistrate,
South Salmara, Mankachar.
3. A stranger had lodged an FIR before police alleging that the petitioner Rakhif
Hussain had married a minor girl who was below 18 years of age, thereby violated the
provisions of Prevention of Child Marriage Act.
4. Now, both the petitioners have jointly filed the present petition stating that they
are living peacefully and they are already blessed with a child. Both of them prayed for
quashing the criminal proceeding against Rakhif Hussain.
5. Mr. Das submits that since it is a case under the provision of POCSO Act, notice
to the informant has to be sent.
6. I have considered the submissions made by the learned counsel of both sides.
7. This petition has been filed jointly by the girl and the boy. The informant is a
stranger. Serving notice upon him would be nothing but an abuse of the process of the
court.
8. The guidelines for consideration of a petition under Section 482 of the CrPC (now
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Section 528 of the BNSS, 2023 ) has been laid down by the Hon'ble Supreme Court in
State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Paragraph 102 of the judgment
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 channelised 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
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."
9. Reverting to the case in hand, I find that under the given circumstances of the
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case, there is no possibility of future conviction in this case. So, allowing the criminal
proceeding to continue before the trail court would be nothing but an abuse of the
process of the court.
10. This Court is of the opinion that this is a fit case for exercising power under
Section 528 of the BNSS, 2023. The criminal petition is allowed.
11. Accordingly, the proceedings of PRC No.648/2024 (arising out of Sukchar P.S.
Case No.21/2023) pending before the court of learned Addl. Chief Judicial Magistrate,
South Salmara, Mankachar, is quashed and set aside.
The criminal petition is disposed of.
JUDGE
Comparing Assistant
