Page No.# 1/7 vs The State Of Assam And Anr
2025 Latest Caselaw 1702 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam And Anr on 3 January, 2025

                                                                         Page No.# 1/7

GAHC010234172024




                                                                  2025:GAU-AS:66

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

                                 Case No. : Crl.Pet./1350/2024

            BIMAL CHANDRA MANDAL @ BIMAL MANDAL @ KALU
            S/O GURUCHARAN MANDAL
            R/O VILL- BASBARI NO. 2,
            P.O. SALABILA
            P.S. MANIKPUR
            DIST. BONGAIGAON, ASSAM
            PIN-783392



            VERSUS

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

            2:SRI BINDO RABI DAS
             S/O LATE BACHON RABI DAS
            R/O VILL- DHOLA PUKHURI
            P.O. SIMLAGURI
            P.S. BONGAIGAON

            DIST. BONGAIGAON
            ASSAM
            PIN-78338

Advocate for the Petitioner   : MR P S RAJA,

Advocate for the Respondent : PP, ASSAM, MR. J P BARUAH (R-2),MR. S SUTRADHAR (R-2)
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                         BEFORE
          HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                     ORDER

Date : 03.01.2025

Heard Mr. P. S. Raja, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent and Mr. S. Sutradhar, learned counsel for the respondent No. 2/informant.

2. This is an application under Section 528 of BNSS, 2023 praying for quashing and setting aside the F.I.R. dated 23.06.2022; Charge-Sheet No. 144/2023, dated 30.05.2023; Order dated 22.11.2023, passed by the learned Special Judge, Bongaigaon whereby taking cognizance of offence in Special (P) Case No. 132/2023 (Corresponding Bongaigaon P.S. Case No. 294/2024); as well as the subsequent criminal proceeding thereof pending against the present petitioner.

3. Scanned copy of the LCR has already been received. Perused the same. Heard both sides.

4. It is submitted by Mr. Raja, learned counsel for the petitioner, that both the petitioner and the victim were in love relationship and out of her consent only, the victim eloped with the petitioner when she was more than 17 years of age. Thereafter, the maternal uncle of the victim lodged the F.I.R. against the present petitioner. But, after attaining her majority, both the petitioner and the victim got married with the consent of the family members as well as the informant Page No.# 3/7

and the mother of the victim and presently both of them are residing together as a husband and wife and one girl child is also born out of their wedlock. To substantiate the plea that the victim girl had already attained her majority, one Birth Certificate/HSLC has also been annexed along with the petition.

5. Further it is submitted by Mr. Raja, learned counsel for the petitioner, that after the marriage between the parties, the informant as well as the mother of the victim also sworn affidavit before the Notary Magistrate wherein it is stated that only due to misunderstanding the F.I.R. was lodged and presently the petitioner and the victim are residing as a husband and wife and hence they do not have any objection if the F.I.R. and the subsequently criminal proceeding against the present petitioner is quashed. He further submitted that in the affidavit, it is also stated that in presence of the family members of both the parties, the marriage was solemnized between the petitioner and the victim and they are happily residing as husband and wife. He further submitted that in such a circumstances even if the proceeding is allowed to be continued, the probability of conviction of the accused/petitioner is very remote and bleak. Rather, it will be an abuse of the process of the Court, as there is no probability of adducing evidence against the present petitioner by the informant as well as the victim and the other family members. More so, he submitted that the continuation of the criminal proceeding before the learned Special Judge, Bongaigaon would put the accused/petitioner as well as the victim to grave agony and hardship. He also submitted that considering the entire circumstances of this case, the accused/petitioner was also granted with the privilege of pre-arrest bail by this Court vide order dated 10.04.2024, passed in AB No. 1005/2024. Accordingly, he submitted that it is a fit case wherein the Page No.# 4/7

inherent jurisdiction under Section 528 BNSS can be exercised for setting aside and quashing of the F.I.R., Charge-Sheet as well as the criminal proceeding pending before the Court of learned Special Judge, Bongaigaon, wherein the cognizance of the offence has already been taken under Section 376 IPC read with Section 4 of the POCSO Act.

6. Mr. Sharma, learned Additional Public Prosecutor, submitted in this regard that at the relevant time of incident, the victim was a minor and as per her HSLC/Birth Certificate also, her date of birth is dated 14.10.2005 and the date of incident was on 07.05.2022. Further he submitted that the victim had implicated the accused/petitioner in her statements recorded under Sections 161 & 164 Cr.P.C., though she stated that she had love affairs with the accused/petitioner. He further submitted that this kind of offence is considered as a heinous offence and hence, there cannot be any compromise on the basis of which the criminal proceeding can be quashed. Accordingly, he raised objection and submitted that it is not at all a fit case to quash the F.I.R., Charge-Sheet or the criminal proceeding, as prayed for.

7. Mr. Sutradhar, learned counsel for the respondent No. 2/informant, submitted in this regard that as per his instruction, the informant as well as the family members of the victim and the victim herself have no objection if the criminal proceeding is quashed as both the petitioner and the victim already got married and they are happily residing as husband and wife along with their girl child. Accordingly, he raised no objection and submitted that the informant and the mother of the victim had already sworn affidavit stating that they do not have any objection if the criminal proceeding is quashed.

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8. I have considered the submissions made by the learned counsels appearing on behalf of the parties and also perused the materials available on record.

9. From the submissions made by the learned counsels appearing on behalf of the parties, it is seen that admittedly both the petitioner as well as the victim got married socially in presence of their family members after the victim attained her majority and in the same time, it is also an admitted fact that one girl child is also born out of their wedlock. Further, from the submission made by the learned counsel appearing for the respondent No. 2/informant also, it appears that the petitioner and the victim are residing happily as husband and wife with their new born child. But it cannot be denied that at the relevant time of incident, the victim was a minor and she was below 18 years of age. She may elope with the petitioner out of love affairs, but her consent cannot be considered as a valid consent as she was minor at the relevant time of incident. But considering the present circumstances and situation, it is seen that the victim already got married with the accused/petitioner after attaining her majority in presence of family members of both the parties and one girl child is also born out of their wedlock. Further, both the informant as well as the mother of the victim also sworn affidavit in that regard stating that they do not have any objection if the entire criminal proceeding is quashed as both the petitioner as well as the victim are residing happily as husband and wife with their new born child. Thus, considering this facts and circumstances of the case, it can be held that even if the proceeding is allowed to be continued, there is no possibility of conviction of the petitioner as it cannot be expected from the victim as well as the informant to depose against the present petitioner as the Page No.# 6/7

matter has already been settled. Rather, both the parties are residing happily as husband and wife. Therefore, it will only be an abuse of the process of the Court if the proceeding is allowed to be continued, though it is a fact that the case is registered under the POCSO Act which is considered as a heinous offence.

10. In this regard, a decision of Hon'ble Supreme Court in the Case of Kapil Gupta vs. State of NCT of Delhi, reported in (2022) 0 Supreme (SC) 1108, can be cited, wherein it has been held that " (B) Indian Penal Code, 1860

- Section 376 - Criminal Procedure Code, 1973, - Sections 320 and 482 - Rape

- Quashing petition - Amicable settlement between the parties - Case and counter- case - Respondent No.2 is a young lady of 23 years - She feels that going through the trial in one case, where she is a complainant and in other case, wherein she is accused would rob prime of her youth - In both cases, though the charge-sheets have been filed, charged are yet to be framed and as such, trial has not yet commenced - Since respondent No. 2 herself is not supporting prosecution case, even if criminal trial is permitted to go ahead, it will end in nothing else than an acquittal - If request of the parties is denied, it will be amounting to only adding one more criminal case to already overburdened criminal Courts - Both criminal proceedings quashed". And, paragraph 13 of the said judgment is read as under:-

"3. It can thus be seen that this Court has clearly held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Court has also to take into consideration as to whether the settlement between the parties is going to result into harmony between them which may improve their mutual Page No.# 7/7

relationship."

11. In view of the entire discussions made above and also considering the view expressed by the Hon'ble Apex Court in the case law referred to hereinabove and further considering the future of the new born child as well as the victim also, I am of the view that this is a fit case where the extra-ordinary power under Section 528 BNSS can be invoked to quash the criminal proceeding pending against the present accused/petitioner. Accordingly, the petition stands allowed. The F.I.R. of Bongaigaon P.S. Case No. 294/2022, under Section 376 IPC read with Section 4 of POCSO Act, dated 23.06.2022; Charge-Sheet No. 144/2023, dated 30.05.2023; Order dated 22.11.2023; as well as the subsequent criminal proceeding in Special (P) Case No. 132/2023, pending before the Court of learned Special Judge, Bongaigaon, stand set aside and quashed.

12. In terms of above, this criminal petition stands disposed of.

JUDGE

Comparing Assistant