Gauhati High Court
Khairul Islam vs The State Of Assam And 3 Ors on 28 February, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010227242024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1322/2024
KHAIRUL ISLAM
S/O HAKIM UDDIN, VILL- ISLAM NAGAR, P.S.-DHUBRI, DIST- DHUBRI,
ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:AZIJ ALI
S/O MAYAJ ALI
R/O VILL- ISLAM NAGAR
P.S.-DHUBRI
P.O.- M. CO. ROAD
DIST- DHUBRI
ASSAM
PIN NO. -783323
3:JOSANA KHATUN
W/O AZIJ ALI
R/O VILL- ISLAM NAGAR
P.S.-DHUBRI
P.O.- M. CO. ROAD
DIST- DHUBRI
ASSAM
PIN NO. -78332
Advocate for the Petitioner : MR F HAQUE, MR A ISLAM,MR. S K M ALOMGIR
Advocate for the Respondent : PP, ASSAM, MR A SHARMA (R-2,3)
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:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
28.02.2025
Heard Mr. F. Haque, the learned counsel appearing for the petitioner. Also heard
Ms. S.H. Borah, the learned Addl. Public Prosecutor, Assam representing Respondent
No.1. Heard Mr. A. Sarma, the learned counsel appearing for the Respondent Nos.2
and 3.
2. This is an application under Section 528 of the BNSS, 2023, praying for quashing
the FIR of Dhubri P.S. Case No.262/2024.
3. On 27.07.2024, police lodged an FIR alleging that two SIM cards having numbers
7896304102 and 7002115943 are used by the present petitioner Khairul Islam to
upload 10 numbers of obscene videos in social media. The petitioner allegedly pointed
out that the girl child shown in the obscene videos is the daughter of his relative Azij
Ali. The young girl was 8 years old.
4. Today, the said Azij Ali and his wife Josana Khatun (Respondent Nos.2 and 3)
have submitted that the child shown in those obscene videos, was not recognizable to
be their daughter. They claimed that they have watched those videos and they could
not identify the girl to be their daughter.
5. Mr. Haque has submitted that if the parents of the girl failed to identify their own
daughter in the video clips, there is no possibility of conviction of the petitioner.
6. Mr. Sarma also agreed to that opinion of Mr. Haque. Mr. Sarma has clearly
submitted that he has no objection if the FIR against the petitioner is quashed.
7. I have given my anxious considerations to the submissions made by the learned
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counsel of both sides.
8. The guidelines for consideration of a petition under Section 482 of the CrPC has
been laid down by the Hon'ble Supreme Court in State of Haryana v. BhajanLal , 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."
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9. Reverting to the case in hand, since the parents of the minor girl have failed to
recognize their own daughter in the video clips, no case against the present petitioner
will survive. This Court is of the opinion that under the given circumstances, there is
no possibility of conviction in this case. Therefore, allowing the criminal proceeding to
continue before the trial court would be nothing but an abuse of the process of the
court.
10. This is a fit case for exercising power under Section 528 of the BNSS, 2023. The
criminal petition is allowed.
11. Accordingly, the FIR of Dhubri P.S. Case No.262/2024, is quashed and set aside.
The criminal petition is disposed of.
JUDGE
Comparing Assistant
