Gauhati High Court
Page No.# 1/4 vs The State Of Assam And Anr on 12 June, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010270272024
2025:GAU-AS:7701
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1564/2024
DR PARTHA ROY
S/O LATE BAGALA PRASANNA ROY
R/O VILL- NATUNPARA COLLEGE, ROAD, P.O., P.S AND DIST.
BONGAIGAON, ASSAM, PIN-783380
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM
2:MD. SAHIDUR RAHMAN
S/O LATE ACHIR UDDIN
R/O THAGRAPAR
IN THE DISTRICT OF DHUBRI
ASSA
Advocate for the Petitioner : MR. DILIP DEY, MS T NANDI
Advocate for the Respondent : PP, ASSAM, MR. A W MONDAL.(R-2),MR. K ISLAM.(R-2),MR. A
ALIM SK (R-2),MR. M U MONDAL.(R-2)
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:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
12.06.2025
Heard Mr. Dilip Dey, the learned counsel appearing for the petitioner. Also heard
Mr. K.K. Parasar, the learned Addl. Public Prosecutor, Assam.
2. This is an application under Section 528 read with 438/442 of the BNSS, 2023
praying for quashing the order dated 05.10.2024 passed by the learned Sessions
Judge, Bongaigaon, Assam in Sessions Case No.47(BGN)/2022.
3. On 12.03.2017, the son of the informant Sahidur Rahman was working as a
labourer in the house of the present petitioner. At about 3 P.M., the son of the
informant fell down from the top floor of the house. He sustained serious injuries. He
was immediately taken to Swagat Hospital & Research Centre where he succumbed to
his injury. On 16.04.2017, the informant Sahidur Rahman had lodged an FIR before
police alleging the aforesaid facts.
4. Police registered the case being Bongaigaon P.S. Case No.265/2017. On
conclusion of investigation, police filed a Final Report. After getting the Final Report,
the learned Judicial Magistrate First Class, Bongaigaon issued notice to Sahidur
Rahman. He protested against the Final Report. Thereafter, the learned Judicial
Magistrate registered a complaint case and took cognizance of the offence under
Section 304 of the Indian Penal Code against the present petitioner. Since Section 304
of the Indian Penal Code, is a sessions triable offence, the matter was committed to
the Court of Sessions.
5. The learned Sessions Judge, Bongaigaon registered the Sessions Case
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No.47(BGN)/ 2022. The petitioner filed a petition before the learned Sessions Judge
praying for his discharge from the case. The learned Sessions Judge dismissed the
application and posted the case on 04.11.2024 for consideration for the charge.
6. The petitioner has submitted that on 12.03.2017, he was at South Africa. He has
filed necessary documents to prove that fact. Moreover, the petitioner also submits
that though he resided in the said building, the property belonged to his father Sri
Bagala Prasanna Roy.
7. I have considered the submissions made by the learned counsel of both sides.
8. The present petitioner was not present in his house on 12.03.2017 when the
occurrence took place. Who employed the deceased to undertake works in the house
of the petitioner is not known. According to the documents, the property belongs to
the father of the petitioner though the petitioner used to reside in the said property. In
such a circumstance, it will be difficult to have an opinion as to who is responsible for
the death of the deceased.
9. 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. 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
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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."
10. Reverting to the case in hand, I find that the ratio laid down in Bhajan Lal
(supra) is squarely applicable in the present case. There is no possibility of conviction
of any person in this case. So, allowing the criminal proceeding to continue before the
trial court would be nothing but an abuse of the process of the court. Therefore, this
is a fit case for exercising power under Section 528 of the BNSS, 2023.
11. According, the criminal proceedings of Sessions Case No.47(BGN) /2022 pending
in the court of the learned Sessions Judge, Bongaigaon is quashed and set aside. The
criminal petition is disposed of.
JUDGE
Comparing Assistant
