Page No.# 1/6 vs The State Of Assam And Anr
2025 Latest Caselaw 3526 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam And Anr on 27 February, 2025

                                                                              Page No.# 1/6

GAHC010162462024




                                                                     2025:GAU-AS:2113

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

                                 Case No. : Crl.Pet./971/2024

            RAKESH KALITA
            S/O LATE KAMINI MOHAN KALITA
            R/O VILL- KARARA, P.S. BAIHATA CHARIALI,
            DIST. KAMRUP, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PP, ASSAM

            2:SRI SANGITA KALITA
             D/O LT. KRISHNA KALITA
            R/O GARAKA
             P.O. AND P.S. RANGIA
             DIST. KAMRUP (R)
            ASSA

Advocate for the Petitioner   : MR N BARMAN, K BORO,MS J BARMAN

Advocate for the Respondent : PP, ASSAM, MR G DAS (R- 2),MR D SAIKIA (R- 2)




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                          ORDER

27.02.2025

1. Heard Mr. N. Barman, the learned counsel for the petitioner. Also Page No.# 2/6

heard Mr. R.J. Baruah, the learned Additional Public Prosecutor appearing for the State of Assam, as well as Mr. D. Saikia, the learned counsel for the respondent No. 2.

2. The learned Additional Public Prosecutor submits that the Case Diary has not yet arrived.

3. The learned counsel for the respondent No. 2 has submitted that the petitioner has filed this criminal petition, challenging the FIR that was lodged by the respondent No.2 and on the basis of which, Rangia P.S. Case No. 123/2024 was registered.

4. He further submits that in the meanwhile, charge sheet has already been laid and in support of his submissions, he has furnished a copy of the charge sheet, along with the affidavit-in-opposition filed by the respondent No. 2.

5. The learned counsel for the petitioner has prayed for allowing him to file a reply against the affidavit-in-opposition filed by the respondent No. 2 and also prays for calling of the LCR.

6. This criminal petition has been filed under Section 528 of the Bharatiya Nyaya Sanhita (BNS), 2023 by the petitioner, namely, Sri Rakesh Kalita praying for quashing of the FIR and the proceeding of Rangia P.S. Case No. 123/2024, which was registered on the basis of the said FIR, under Section 376/493 of the Indian Penal Code.

7. The facts relevant for consideration of the instant criminal petition, in brief, are that the respondent No. 2 had on 22.03.2024, lodged Page No.# 3/6

an FIR before the Officer-In-Charge of Rangia Police Station, inter alia, stating that in the year 2018, she got acquainted with the petitioner through Facebook and eventually, an agreement was entered between both of them, wherein, they promised to marry socially. It was further alleged in the FIR that the petitioner forced the respondent No. 2 to have physical relationship with her and accordingly, the respondent No. 2 and the petitioner stayed in several hotels on several occasions and had physical relations. It is further stated in the FIR that in the month of September, 2023, the petitioner started avoiding the respondent No. 2 and she came to know that the petitioner is already a married person and he had cheated the respondent No. 2 by inducing her to have physical relations on the pretext of marrying her.

8. The learned counsel for the petitioner has submitted that the impugned FIR has been lodged against him by the respondent No. 2 with a view to harassing him and no specific date has been mentioned about the commission of the alleged offence. He has submitted that only false accusation have been made against the petitioner in the FIR, which does not constitute any offence. He has also prayed for allowing the petitioner to file a reply against the affidavit-in-opposition filed by the respondent No. 2 in this case.

9. On the other hand, the learned counsel for the respondent No. 2 has submitted that in the meanwhile, the investigation of Rangia P.S. Case No. 123/2024 has already been completed and charge sheet has been laid. He has also submitted that the charge sheet was laid on 30.06.2024 bearing charge sheet No. 146/2024, i.e. much prior to the filing of the Page No.# 4/6

instant criminal petition by the petitioner.

10. He further submits that there are sufficient incriminating materials against the petitioner as the FIR also clearly mentions about the ingredients of the offence as well as the materials collected during the investigation that had substantiated the accusation made in the FIR. He has further submitted that the instant criminal petition filed by the petitioner has become infructuous, as he has not challenged the charge sheet, though the petitioner had filed this criminal petition on 09.08.2024, i.e. after the charge sheet was laid in the Rangia P.S. Case No. 123/2024.

11. He further submits that on the basis of the charge sheet, a PRC Case has also been registered bearing PRC Case No. 486/2024. He also submits that even the case has been committed to the Court of Sessions and a Sessions Case No. 02/2025 has also been registered in this case. Therefore, he submits that the petitioner has suppressed the material facts from this Court and the power of this Court under Section 528 of the BNSS, 2023 should not be exercised to quash the proceedings arising out of the FIR lodged by the respondent No. 2.

12. I have considered the submissions made by the learned counsel for both the sides and have perused the materials available on record. From the copy of the charge sheet submitted by the respondent No. 2, along with his affidavit-in-opposition, it appears that the investigation in Rangia P.S. Case No. 123/2024 has already been completed and charge sheet has been laid. Further, after laying of the charge sheet a PRC Case No. 486/2024 was registered and the same has also been committed to the Court of Sessions and a Sessions Case No. 02/2025 was also Page No.# 5/6

registered and the next date had been fixed on 01.03.2025 for appearance of the petitioner before the said Court.

13. It is no longer res integra that the power of quashing under Section 528 of the BNSS, 2023(corresponding to Section 482 of Cr.P.C.) should be exercised sparingly with circumspection and it should be exercised in the rarest of rare cases.

14. Further, it is also well settled by the Apex Court in a catena of its judgments, including the observations made in the case of " Neeharika Infrastructure Private Limited Vs. State of Maharashtra And Others," reported in "(2021) 19 SCC 401" that while examining a case for quashing, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR.

15. In the instant case, it appears that on the basis of the FIR, lodged by the respondent No. 2, wherein categorical accusations have been made against the present petitioner under Section 376/493 of the Indian Penal Code.

16. It also appears that after the completion of the investigation, charge sheet has been laid against the present petitioner under Section 376/493 of the Indian Penal Code and 4(four) numbers of witnesses have been named as prosecution witnesses.

17. Under such circumstances, this does not appear to be a case where no materials are there against the present petitioner and as regards the reliability or genuiness of the evidence on the basis of which charge sheet has been laid against the present petitioner, it is well settled that Page No.# 6/6

this Court cannot embark upon an enquiry regarding the reliability or genuineness in exercise of its power under Section 528 of the BNSS, 2023, which can only be done at trial.

18. Under the facts and circumstances of this case, when the petitioner had failed to challenge the charge sheet even though he has approached this Court only after the submission of the charge sheet against him, this Court is of the considered opinion that this is not a fit case where, the inherent powers of this Court may be exercised to quash the FIR against the present petitioner when the charge sheet has already been laid against him.

19. It is well settled that the powers under Section 528 of the BNSS, 2023 may be used as a device to advance the cause of justice and not to frustrate it.

20. In the instant case, the petitioner has failed to show any reasonable ground for invoking the powers of this Court, under Section 528 for quashing the FIR as prayed for by him.

21. For the reasons discussed hereinabove, this criminal petition is dismissed.

JUDGE

Comparing Assistant