Crl.Pet./700/2016
2025 Latest Caselaw 4427 Gua

Gauhati High Court

Crl.Pet./700/2016 on 25 March, 2025

   GAHC010173402016




                                             2025:GAU-AS:3337


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



             1.CRIMINAL PETITION NO.700/2016

                           1. Ali Hussain
                              S/O: Lt Amir Uddin

                           2. Altab Hussain
                              S/O: Abdul Wahab

                           3. Abdul Latif
                              S/O: Abdul Wahab

                           4. Abdul Kayum @
                              Kayum Ali
                              S/O: Abdul Wahab

                           5. Abdul Mannan Ali @
                              Abdul Mannan
                              S/O: Muktar Ali

                           6. Amjad Ali
                              S/O: Nalmiah

                           7. Nur Hussain
                              S/O: Muktar Ali

                           8. Md. Taizuddin
                              S/O: Lt Mohammad Ali

                              All are R/O Vill.Rangia Nadir
                              Pam, P.O. RB Hat, P.S:
                              Sarthebari
                              Dist:- Barpeta, Assam.


                                                 Page 1 of 11
                                               .......Petitioners

                                   -Versus-

                             1. Hakim Ali
                                S/O: Sangser Ali
                                R/O village-Kabaimari block
                                No.9,
                                P.O: RB Hat, P.S:
                                Sarthebari,
                                Dist:- Barpeta, Assam


                             2. The State of Assam


                                            .......Respondent



                        -BEFORE-

      HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Petitioner(s)   : Mr. A.M. Khan, Advocate.
For the Respondent(s)   : Ms. S.H. Bora, Additional Public
                          Prosecutor for the respondent No.2.
                         : Mr. N. Ahmed, learned counsel for the
                        respondent No. 1.



Date of Hearing         : 25.03.2025.

Date of Judgment        : 25.03.2025.



             JUDGMENT & ORDER (ORAL)

Heard Mr. A.M. Khan, learned counsel appearing for the petitioners. Also heard Mr. N. Ahmed, learned counsel appearing for the respondent No.1/complainant

and Ms. S.H. Bora, learned Additional Public Prosecutor appearing for the State respondent.

2. Pertinent that at the time of filing of the criminal petition, the petitioners have not arrayed the State of Assam as a party respondent, however, this Court by order dated 09.02.2017 impleaded the State of Assam as respondent No.2. Accordingly, the cause-title of the criminal petition has been amended.

3. By way of this petition, under Section 482 of Cr.P.C read with section 401 Cr.P.C., the petitioners are seeking quashing of the complaint case being CR Case No.1806/2015 pending in the Court of learned JMFC, Barpeta (hereinafter referred to as the Magistrate Court) and the impugned order dated 26.05.2016 passed by the Magistrate Court in the said complaint case.

4. The brief facts of the case is that a complaint was filed on 29.06.2015 alleging, inter-alia, that the complainant got settlement of land measuring 48 hands length and 24 hands breath, which is part of the land covered by Dag No.268 Patta No.122 belonging to Rangia Nadir Pam Janapriya Anchalik Bazar.

5. It is alleged that the president and the secretary of managing committee, i.e. petitioner Nos. 1 and 2 of the said market gave place/possession and settlement card to the complainant after taking money from him and accordingly, the complainant started to construct pakka house in the said allotted place.

6. It further alleged that on 10.01.2015, the accused/petitioners with hazardous weapon entered into

the land allotted to the complainant and demanded a sum of Rs. 2,00,000/- by threatening to kill him with pistol in the event the payment is not made. Thereafter, the complaint was registered as CR Case No.1806/2015 before the Magistrate Court. After the investigation was completed and the statements of the complaint along with the complainant's witnesses were recorded, the Magistrate Court by order dated 26.05.2016 took cognizance against the accused/petitioners under Section 395 of IPC.

7. Situated thus, the present criminal petition has been filed by the accused/petitioners.

8. Pertinent that, this Court by order dated 26.05.2017 was pleased to stay the proceeding of the said complaint case until further orders.

9. Mr. A.M. Khan, learned counsel appearing for the petitioners submits that allegations leveled against the accused/petitioners in the subject complaint case are absolutely false and baseless and has been falsely implicated in connection with the said case.

10. He further submits that the learned Magistrate Court has totally failed to appreciate the evidence on records and facts of the case and passed the impugned order dated 26.05.2016 and therefore, the same is liable to be quashed.

11. He further submits that the complaint was filed on 29.06.2015 after a delay of about 6 (six) months from the alleged date of occurrence of the incident, i.e. 10.01.2015 and there being no proper explanation regarding the delay of filing the case, the impugned order of the Magistrate

Court taking cognizance on the basis of such belated complaint is erroneous.

12. He further submits that there is a dispute regarding constitution of the managing committee of the said market in question and the disputes leads to constituting of two managing committee of the said market, one headed by the petitioner No.1 and another headed by one Iman Ali and that Iman Ali and 12 others including the respondent No.1/complainant had filed writ petition being WP(C) No.150/2016 before this Court for a direction of restraining the petitioners not to disturb to run the market allotted to the writ petitioners. He further submits that since, no interim order was passed in the said petition, the subject complaint has been filed only to harass the petitioners.

13. Per contra, Ms. S.H. Bora, learned Additional Public Prosecutor appearing for the State respondent submits that the allegations made out in the complaint clearly makes out a criminal offence, wherein charge has not yet been framed in view of the stay order obtained by the petitioners in this case.

14. She further submits that the grounds argued by the learned counsel appearing for the petitioners, supporting the quashing petition can be argued before the Magistrate Court at the time of framing charge and therefore, and therefore, the impugned order of the Magistrate Court warrants no interference from this Court.

15. Mr. N. Ahmed, learned counsel appearing for the respondent No.1/complainant submits that since the

allegations averred in the complaint makes out a prima- facie criminal case, the same ought not to be quashed by this Court.

16. I have heard the learned counsel appearing for the contending parties and have perused the material available on record. I have also considered the case law cited at the bar.

17. Apt to reproduce the complaint which reads as hereunder:-

Translated and Typed copy of Complaint

In the Court of the CJM, Barpeta

29/6/15

1. Name & address of Complt: Hakim Ali

S/O: Sangser Ali

Vill: Kawaimari Block

Mouza: Paka, PS:

Sarthebari,

Dist: Barpeta Assam

2. Name & address of Accd: 1. Ali Hussain

S/O:late Amir Uddin

2.Altab Hussain

S/O: Abdul Wahab

3. Abdul Latif

S/O: Abdul Wahab

4. Abdul Kalam

S/O: Abdul Wahab

5.Abdul Kayum

S/O: Abdul Wahab

6.Abdul Mannan

S/O: Muktar Ali

7. NurHussain

S/O: Muktar Ali

9. Nur Mohammad Ali

S/O: Muktar Ali

9.Taizuddin

S/O: Late Mohammad Ali

10. Amjad Ali

S/O: Nalmiah

11.Samsul Hoque

S/O: Late Tohur Uddin

12.Sukur Beg

S/O: Late Mozid Beg

1 to 11 resident of Village: Rangia Nadir Pam and 12 of Vill: RangiaGaon, All are under PS: Sarthebari, Dist: Barpeta Assam.

3. Date of occurrence: 10/1/2015 at about 7 AM

4. Offence committed under Section:

147/447/379/427/506 IPC

5. Brief facts of the case: The brief facts of the complt case is that the complt. got settlement of land measuring 48 hands length and 24 hands breath

patta No. 122 belonging to RangiaNadir Pam Janapriya Anchalik Bazar. The president and

secretary of the managing committee of the said market gave place/possession and settlement card to the complainant after taking money from him and accordingly the complainant started to construct pakka house in the said allotted place. But on the day of incidence the accused persons carrying with hazardous weapon such as knife dagger and pistol conjointly entered illegally into the land allotted to the complainant and the accused No.1 made a demand of Rs 2 Lakh. The complainant on being asked as to why and on being failure to pay the same, the accused persons threatened him to kill with pistol and broke the post of the pakka house of the complainant by cutting the rod and thereafter looted away the materials such as grips sand and cement and also threatened that if the complainant demands to the place or land of the market then he will be killed. The neighbor came forward and the accused left the place. The accused No.1 kept the settlement card issued in favour of the complainant and the money receipt as deposited for settlement by deceitfully taking the same from the secretary of the managing committee of the market. For the illegal activities of the accused persons, the complainant suffered repairable loss. The witness knows the facts and will prove. The elderly persons of the locality tried to settle the dispute but the accused persons did not come for settlement and accordingly there is delayed to file case.

It is therefore prayed before your honour would be pleased to take necessary action against the accused persons.

Name of the witness:

1. Euchub Ali Ahmed

2. Anowar Hussain

3. Iman Ali

4. Akbar Ali Ahmed

5. Jamal Uddin

And others

18. Reading of the aforesaid averments set out in the complaint, it appears that the allegations against the accused/petitioners are serious in nature and if the allegations are proved, a criminal offence is made out.

19. It further appears that based on the said complaint petition as well as the material collected by the prosecution, the Magistrate Court by applying its mind on the material available, had taken cognizance under Section 395 of IPC against the accused/petitioners.

20. It further appears that because of the stay obtained by the accused/petitioners in this criminal petition, the matter could not proceed thereafter. The arguments of the learned counsel appearing for the accused/petitioners as regards the delay in lodging the FIR and the dispute as claimed cannot be gone into by this Court at this stage. The power of this Court to quash a criminal proceeding has to be exercised very sparingly and with circumspection and that to rarest of rare cases. It is well settled that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint.

21. The principles laid down by the Apex Court for exercising the inherent powers of the Court under Section 482 of Cr.P.C for quashing the FIR/complaint in the decision of Bhajan Lal & Ors. Vs State of Harayana & Ors. reported in 1992 Supp (1) SCC 335 reads as hereunder:-

"(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 cog-nizable 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 cog-nizable 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 pru-dent person can ever reach a just conclusion that there is suffi-cient 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 con-tinuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing effica-cious 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."

22. Viewed from the aforesaid angle, this Court is of the firm opinion that the averments set out in the complaint, even if they are taken to be correct at their face value, a criminal offence is made out against the accused/petitioners. Hence, this Court finds no infirmity in the impugned order dated 26.05.2016 passed by the Magistrate Court in CR Case No.1806/2015.

23. Resultantly, the criminal petition fails and stands dismissed.

24. Interim order, if any, stands vacated.

JUDGE

Comparing Assistant