Page No.# 1/4 vs The State Of Assam And Anr
2025 Latest Caselaw 58 Gua

Gauhati High Court

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

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                   Page No.# 1/4

GAHC010091012025




                                                          undefined

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

                          Case No. : Crl.Pet./500/2025

         AZAD ALI AND ANR
         SON OF LATE JELAL ALI @JALAL SK.
         R/O VILL-DHENERKUTI, P.S. SOUTH SALMARA, DIST. SALMARA-
         MANKACHAR, ASSAM, PIN-783127

         2: BEAUTY KHATUN @ BEAUTI KHATUN
          D/O RAFIQUL ISLAM
         W/O AZAD ALI
         ORIGINAL RESIDENT OF VILL-BALUGHAT
         P.O. RABHATARY
          P.S. SOUTH SALMARA

         DIST. SOUTH SALMARA MANKACHAR
         ASSAM AND
         PRESENTLY RESIDING AT VILL-DHENERKUTI
         P.S. SOUTH SALMARA
         DIST. SOUTH SALMARA MANKACHAR
         ASSAM
         PIN-78312

         VERSUS

         THE STATE OF ASSAM AND ANR.
         TO BE REP. BY THE LEARNED PP, ASSAM

         2:ABUL KASHEM
          SON OF HAJI NAZAR ALI

         R/O VILL-SURJOMONI
         P.S. SOUTH SALMARA
         DIST. SOUTH SALMARA MANKACHAR
         ASSAM
         PIN-78312
                                                                               Page No.# 2/4

Advocate for the Petitioner   : MR SARFRAZ NAWAZ, MS. P KHATUN,SAMIM RAHMAN,MR J
HUSSAIN

Advocate for the Respondent : PP, ASSAM,




                                      :: BEFORE ::
                   HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                      O R D E R

01.05.2025

Heard Mr. S. Nawaz, the learned counsel appearing for the petitioners. Also heard Mr. K. Baishya, the learned Addl. Public Prosecutor, Assam.

2. This is an application under Section 528 of the BNSS, 2023 praying for quashing the criminal proceedings of Special (POCSO) Case No.161/2024 pending in the court of learned Special Judge, South Salmara, Mankachar.

3. On 29.11.2023, one Abul Kashem had lodged an FIR before police alleging that the present petitioner Azad Ali had married a minor girl.

4. According to Mr. Nawaz, no such marriage actually took place as alleged in the FIR. The birth certificate filed along with this petition show that the girl is now a major and the other documents show that they have applied for solemnization of marriage under the Special Marriage Act.

5. This application has been filed by Azad Ali and the said girl. They have claimed that they are already married and living happily as a married couple. According to them, both are now above the stipulated age of marriage.

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

7. 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 Page No.# 3/4

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 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."

8. Under the given circumstances, this Court is of the opinion that there is no possibility of conviction in this case and allowing such proceeding to continue before the trial court would be nothing but an abuse of the process of the court.

Page No.# 4/4

9. This is a fit case for exercising power under Section 528 of the BNSS, 2023. Therefore, the criminal petition is allowed.

10. Accordingly, the criminal proceedings of Special (POCSO) Case No.161/2024 pending in the court of learned Special Judge, South Salmara, Mankachar, is quashed and set aside.

The criminal petition is disposed of.

JUDGE

Comparing Assistant