Page No.# 1/4 vs The State Of Assam
2025 Latest Caselaw 178 Gua

Gauhati High Court

Page No.# 1/4 vs The State Of Assam on 5 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                      Page No.# 1/4

GAHC010084202025




                                                                2025:GAU-AS:5515

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

                                 Case No. : Crl.Pet./511/2025

            MD ISMAIL ALI AND ANR
            S/O- LATE MOHAMMAD ALI
            R/O- BAMUNI PATHAR,
            P.S- JAKHALABANDHA,
            DIST.- NAGAON, ASSAM

            2: LAKHI KARMAKAR
            W/O- DEBARU KARMAKAR

            R/O- VILL- KELLYDEN T.E.
            P.O- MISSA
             P.S- KALIABOR

            DIST-NAGAON
            ASSAM

            PIN-78213

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR. B CHOWDHURY,

Advocate for the Respondent : PP, ASSAM,
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                                    :: BEFORE ::
                 HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                     O R D E R

05.05.2025

Heard Mr. B. Chowdhury, the learned counsel appearing for the petitioners. Also heard Mr. P. Borthakur, the learned Addl. Public Prosecutor, Assam.

2. This is a joint application under Section 582 of the BNSS, 2023, praying for quashing the criminal proceedings relating to Sessions Case No.85(N)/2018 arising out of Kaliabor P.S. Case No.125/2016 pending in the court of the learned Addl. Sessions Judge No.3, Nagaon, Assam.

3. The petitioner Lakhi Karmakar had alleged in the FIR that 2 years prior to lodging of the said FIR, the petitioner Md. Ismail/Ismile Ali had taken away her 27 years old son with a promise to give him a job at Guwahati. Lakhi Karmakar did not receive any information about her son after he had left for Guwahati. Therefore, she being the mother, went to the house of Md. Ismail/Ismile Ali. He gave her a telephone number. When the mother called that number, an unknown person picked up the phone and told her that her son was with him at Guwahati. Later on, Lakhi Karmakar could not connect the said telephone number. She suspected that her son might be in captivity of some miscreants.

4. Police registered the Kaliabor P.S. Case No.125/2016. The son Lakhan Karmakar, aged about 19 years, gave a statement before a Magistrate under Section 164 of the CrPC. He stated before the Magistrate that when her mother had lodged the FIR, Ismail/Ismile Ali gave him a cash amount of ₹10,000/- and sent him back home from Guwahati.

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5. In this case, police filed the charge sheet under Section 365 of the Indian Penal Code.

6. It may be stated that Lakhan Karmakar had died on an undisclosed date. Therefore, the petitioner Lakhi Karmakar, being the mother, had settled the dispute with Ismail/Ismile Ali. Both the petitioners have come together to this Court stating that since Lakhan Karmakar had expired, his mother Lakhi Karmakar does not want to proceed further with the case against Ismail/Ismile.

7. Mr. Borthakur has objected to this petition. According to Mr. Borthakur, Lakhi Karmakar should place her case in trial court.

8. I have considered the submissions made by the learned counsel of both sides.

9. The allegation Md. Ismail/Ismile Ali is that he had kidnapped Lakhan Karmakar and Lakhan Karmakar is now dead. He never claimed in his statement under Section 164 CrPC that he was ever kidnapped by Ismail/Ismile Ali.

10. 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 order of a Magistrate within the purview of Section 155(2) of the Code.

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(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."

11. Reverting to the case in hand, this Court is of the opinion that under the given circumstances, there is no possibility of conviction of any person. So, allowing the criminal proceeding to continue before the trial court would be nothing but an abuse of the process of the court.

12. This Court is the opinion that this is a fit case for exercising power under Section 528 of the BNSS, 2023. The criminal petition is allowed.

13. Accordingly, the criminal proceedings relating to Sessions Case No.85(N)/2018 arising out of Kaliabor P.S. Case No.125/2016 pending in the court of the learned Addl. Sessions Judge No.3, Nagaon, Assam, is quashed and set aside.

The criminal petition is disposed of.

JUDGE

Comparing Assistant