Page No.# 1/7 vs The State Of Assam And Anr
2025 Latest Caselaw 2239 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam And Anr on 23 January, 2025

                                                                        Page No.# 1/7

GAHC010198822024




                                                                 2025:GAU-AS:708

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

                               Case No. : Crl.Pet./1183/2024

            ANJALI SARMA
            W/O ATUL CHANDRA SARMA
            R/O ANANDANAGAR, DISPUR, GUWAHATI, DIST. KAMRUP (M), ASSAM,
            PIN- 781005



            VERSUS

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

            2:SHRI JITENDRA NATH SARMA
             S/O LATE CHANDRA NATH SARMA

            R/O 2194 MINSKY PLACE
            OSHAWA
            ONTARIO
            CANADA
            LILIC4

Advocate for the Petitioner   : MR. B PHUKAN, MR S N BARUAH

Advocate for the Respondent : PP, ASSAM, MR. M M ZAMAN (R-2),MR. A N SARMAH (R-

2),MR. S CHAMARIA (R-2) Page No.# 2/7

:::BEFORE:::

HON'BLE MRS. JUSTICE MITALI THAKURIA

Date of hearing : 09.12.2024 Date of Judgment & Order : 23.01.2025

JUDGMENT & ORDER (CAV)

Heard Mr. B. Phukan, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. S. Chamaria, learned counsel for the respondent No. 2.

2. This is an application under Section 528 read with Section 438 & 442 of the BNSS, 2023 and Article 226 of the Constitution of India for quashing of Changsari P.S. Case No. 198/2022, under Sections 420/406/471 of the Indian Penal Code.

3. The case of the petitioner, in brief, is that she is the mother of one Pratisha Sharma, who has been implicated as an accused in connection with Changsari P.S. Case No. 198/2022, under Sections 420/406/471 of the Indian Penal Code, and vide the present petition, it is prayed by the petitioner for quashing of the case registered against her daughter, namely, Pratisha Sharma. It is stated that the daughter of the petitioner is a Canadian citizen since the year 2020 and got married to the respondent No. 2, who is also a Canadian citizen, in the year 2012 at Guwahati. But thereafter they got judicially separated. Further it is stated that since February, 2016, there was a Court proceeding pending before Page No.# 3/7

the Superior Court of Justice, Ontario, Canada for custody of the child- Ms. Diya Sharma and the respondent No. 2 got the order in his favour. Thereafter, with some false and concocted allegation, the respondent No. 2 lodged an F.I.R. before the Officer-In-Charge, Changsari Police Station, which is numbered as Changsari P.S. Case No. 198/2022, under Sections 420/406/471 of the Indian Penal Code.

4. It is further submitted by Mr. Phukan, learned counsel for the petitioner, that the said F.I.R. was lodged only with an intention to harass the daughter of the petitioner, though there is no involvement of her daughter in the alleged offence. It is alleged by the respondent No. 2 that the Deed of Agreement, as mentioned in the said F.I.R., which was produced before the Court of Canada through the engaged counsel by the daughter of the petitioner, is a forged document bearing no signature of the executors as at the time of execution of the said deed, the executors were in Canada. However, he submitted that there is no prima facie case against the daughter of the petitioner and in the F.I.R. also, it is not stated that the daughter of the petitioner has been involved for commission of the forgery in respect of the alleged deed of agreement. Mere presentation of the said agreement by the learned engaged counsel of the daughter of the petitioner cannot constitute an offence of forgery that too the said deed was executed on a day when the daughter of the petitioner herself was in Canada and the respondent No. 2 also was in Canada on very day of execution of the said deed. The proceeding initiated against the daughter of the petitioner arising out the said F.I.R. is nothing but the abuse of the process of law and will also hamper the just decision of the Court which is pending before the Superior Court of Justice, Ontario, Canada since the year 2016 between the Page No.# 4/7

daughter of the petitioner as well as the respondent No. 2. Accordingly, it is submitted by the learned counsel for the petitioner that it is a fit case wherein the F.I.R. of Changsari P.S. Case No. 198/2022, under Sections 420/406/471 of the Indian Penal Code, is liable be set aside and quashed by invoking the power under Section 528 BNSS.

5. Mr. Chamaria, learned counsel for the respondent No. 2, without going into the merit of the case, has submitted that the present petition is not maintainable. It is submitted by him that the petitioner is a stranger to this case and she also filed the affidavit in this case on behalf of her daughter without any authorization. He further submitted that a stranger cannot file a petition for quashing unless he or she is authorized or the accused is a minor, insane or suffering from any disability. But, here in the present case, it is seen that there is no authorization from the daughter of the petitioner to file the present petition for quashing of the F.I.R. registered against her daughter. No ground is also assigned in the petition nor any authority is standardized for filing the present petition for quashing on behalf of her daughter. A victim may be

represented by any person, but the accused cannot be represented by a 3 rd party unless the accused is a minor, insane or disabled person or duly authorized by the accused.

6. In that context, Mr. Chamaria also relied on 2 (two) decisions, one from Hon'ble Delhi Court and another from the High Court of Punjab & Haryana, and basically emphasized on paragraph No. 7 of the judgment passed by the Hon'ble Delhi High Court which was reported vide 2022 0 Supreme(Del) 308 (Amrinder Singh @ Raja Vs. State of NCT of Delhi, which reads as under:

Page No.# 5/7

"7. In Amit Ahuja Vs. Gian Parkash Bhambri, 2010(3) R.C.R. (Criminal) 586; it has been observed as under:-

"9. The plain reading of the ratio of law, laid down, in the aforesaid cases, clearly goes to reveal, that it is only the accused person, against whom, a criminal case, has been registered or a criminal complaint, has been filed, can file a petition, under Section 482 Cr.P.C., in the High Court, for quashing the complaint, the summoning order, and the subsequent proceedings, and no third person, can fight a proxy war, on his behalf, under the garb of public interest litigant. The aggrieved party, which is affected by an order, is required to seek redress of its grievance, by questioning the legal validity or correctness of the same. It is another thing, if the aggrieved party, is suffering from some disability i.e. unless such party is a minor, an insane person, or is suffering from any other disability, which, in law, is recognized as sufficient to permit any other person e.g. next friend, to move the Court, on his behalf. On behalf of minor, or insane person, a guardian or a next friend, initiates proceedings, so as to challenge the legality and validity of the order, passed against him, to seek redressal of the grievance, as under

law, such a person having disability, cannot be said to be competent, to file a petition, except through next friend or guardian. In the instant case, there is nothing, on the record, that Amit Ahuja, petitioner, is suffering from any disability, recognized by the provisions of law. He is an accused, in the aforesaid complaint. It is he, who is aggrieved, against the complaint and the summoning order. It is he, who can challenge the same, on any ground which may be available to him, under the provisions of law. If, in criminal cases, until and unless, a person aggrieved, suffers from some disability, recognized by law, a stranger or some other person, is allowed, to fight the proxy war, then the very purpose of criminal justice system, shall be defeated. In that event, the Courts, would be mushroomed, by public interest litigants. In this view of the matter, the present petition, under Section 482 Cr.P.C., filed by the petitioner, through his attorney, is not maintainable. On this ground alone, the same is liable to be dismissed."

7. Further he submitted that the Hon'ble Punjab & Haryana High Court in the case of Amit Ahuja Vs. Gian Parkash Bhambri [2010 0 Supreme(P&H) 1597] has also expressed the same view.

8. In this context, Mr. Phukan, learned counsel for the petitioner, submitted that only the F.I.R. is challenged by the petitioner herein on behalf of her daughter and she had to file this quashing petition as her daughter resides in Canada.

Page No.# 6/7

9. Mr. Baruah, learned Additional Public Prosecutor for the State respondent No. 1, also submitted that it is not at a fit case to invoke the power under Section 528 BNSS for quashing the F.I.R. registered as Changsari P.S. Case No. 198/2022, under Sections 420/406/471 of the Indian Penal Code. He also submitted that the petition is not maintainable in the present form and the petitioner, without any proper authorization, cannot file such a petition for

quashing of a criminal case, who is a 3rd party or stranger to this case.

10. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record. It is an admitted fact that the present petition is filed by the mother of the accused stating that the accused is a Canadian citizen, but the petitioner failed to submit any authorization letter to file the present petition on behalf of her daughter and in the same, it is also a settled law that the petition for quashing can be filed only by the accused not by

any 3rd party unless the accused is suffering from any disability, minor or an insane. But, here in the instant case, it is seen that neither any authority is produced by the petitioner nor the accused is suffering from any such disability to file a petition for quashing on behalf of the accused person. More so, from the plain reading of the F.I.R. also, it is seen that prima facie there is an offence constituted against the accused and the investigation is still under progress and from the status report submitted by the I.O., it is seen that the case is pending only for non-receipt of FSL Report from the expert.

11. Thus, considering the detail discussion made above, this Court is of the opinion that it is not at all a fit case wherein the power under Section 528 BNSS can be invoked to quash the F.I.R. of Changsari P.S. Case No. 198/2022, under Page No.# 7/7

Sections 420/406/471 of the Indian Penal Code. Resultantly, I do not find any merit in this petition and accordingly the same stands dismissed.

12. The criminal petition stands disposed of in terms of above.

JUDGE

Comparing Assistant