Page No.# 1/6 vs The State Of Assam And Anr
2025 Latest Caselaw 335 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam And Anr on 8 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                                Page No.# 1/6

GAHC010108562024




                                                                          2025:GAU-AS:5643

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

                             Case No. : Crl.Pet./631/2024

           SAFI ALOM
           S/O ABDUL AWAL, R/O VILL- NO. 1 JOYNAGAR DHEKIAJULI, P.S.-
           SONITPUR, DIST-SONITPUR

           VERSUS

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

           2:MISS RESHMINA KHATUN
            D/O NIZAMUDDIN
            R/O VILL NO. 1 JOYNAGAR
            P.S.-DHEKIAJULI
            DIST- SONITPUR
           ASSA

Advocate for the Petitioner : MD A SAHAD, MR. M H ALI
Advocate for the Respondent : PP, ASSAM, MR. SURAJIT DAS, AMICUS CURIAE (R-2)

:: PRESENT ::

HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Petitioner : Mr. A. Sahad, Advocate.

                   For the Respondents         :            Mr. K. Baishya,
                                                            Addl. P.P. Assam.
                                                            Mr. Surajit Das,
                                                            Amicus Curiae.

                   Date of Hearing                 :        13.03.2025.
                   Date of Judgment                :        08.05.2025.
                                                                                Page No.# 2/6



                           JUDGMENT AND ORDER (CAV)

Heard Mr. A. Sahad, the counsel appearing for the petitioner. Also heard Mr. K. Baishya, the learned Addl. Public Prosecutor, Assam as well as Mr. Surajit Das, the learned counsel representing the Respondent No.2.

2. This is an application under Section 482 of the Criminal Procedure Code (CrPC) praying for quashing the proceedings of PRC No.121/2024 arising out of Dhekiajuli P.S. Case No.110/2023 dated 26.06.2023 pending in the court of the learned Chief Judicial Magistrate, Sonitpur, Tezpur.

3. In the FIR, it is alleged that on 09.06.2023, the petitioner Safi Alom had forcibly committed rape upon the Respondent No.2. After the said incident, Safi Alom was absconding along with Abdul Awal.

4. The informant has stated that prior to lodging of the FIR, for a period of last 4 years, he was regularly committing rape upon the informant taking advantage of the fact that the informant was a 16 year old girl at that time. Every time, he made false promise to the girl. On some occasions, the girl resisted the attempt of Safi Alom. But in those occasions he used to dish out threats of dire consequences. The girl came to know that in spite of the aforesaid facts, Safi Alom was planning to marry another girl.

5. The victim girl gave a statement under Section 164 of the CrPC. At that time, she claimed to be 19 years old. She has stated before the Magistrate, that she was in love with Safi Alom for the last 3 years. He had promised her that he would marry her. According to the girl, on promises of marriage, he had sexual intercourse with her. The girl even went to the house of Safi Alom because he promised to marry her. On such visits to the house of Safi Alom, he had sexual intercourse with the girl.

6. By filing the present petition, the petitioner has claimed that the FIR was lodged against him on the ground that he had refused to marry her. According to the petitioner, the girl was 19 years old at the time of filing of the FIR and therefore, it can Page No.# 3/6

be presumed that she was a consenting party.

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

8. At this stage, quick revisit to the section 375 of this IPC is required. It reads as under:

[375. Rape.-- A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:

First. Against her will.

     Secondly.     Without her consent.

     Thirdly.      With her consent, when her consent has been obtained by putting

her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him Page No.# 4/6

personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. With or without her consent, when she is under eighteen years of age.

Seventhly. When she is unable to communicate consent.

Explanation 1. For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1. A medical procedure or intervention shall not constitute rape.

Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

9. In the instant case, the victim was 19 years old at the time she had lodged the FIR. There is no denial that prior to lodging of the FIR, for a period of more than 3 years, the petitioner was maintaining physical relationship with the girl on promise of marriage. It goes to show that when the petitioner started his relationship with the girl, she was below 18 years of age according to Section 375 of the IPC, the girl did not have the authority to give consent for sexual intercourse.

10. The petitioner claimed that the girl was a consenting party because when she Page No.# 5/6

had lodged the FIR, she claimed to be 19 years old. This plea will hold the field if the relationship had started after the girl had crossed 18 years of age. In the case in hand, the physical relationship with the girl started when the victim girl was below 18 years of age.

11. The learned counsel Mr. Sahad had relied upon a decision of this Court that was rendered in Bhaskar Basumatary vs. State of Assam & Anr., reported in 2023 (4) GLT

354.

12. This Court is of the opinion that the said judgment of this court was delivered under different circumstance and in the present case, the said judgment is not applicable.

13. 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. (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 Page No.# 6/6

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."

14. There are elements of a prima facie case against the present petitioner Safi Alom. Therefore, this is not a fit case for exercising the power under Section 482 of the Code of Criminal Procedure.

The present criminal petition is found to be devoid of merit and stands dismissed accordingly.

JUDGE

Comparing Assistant