Gauhati High Court
Md. Jahirul Maulana @ Jahirul Islam vs The State Of Assam And 2 Ors on 12 July, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Criminal Petition No.234 of 2016
Md. Jahirul Maulana @ Jahirul Islam
S/o- Md. Surat Ali,
Village- Takimari (Ratangaon),
P.O- Takimari,
P.S- Lakhipur
District- Goalpara (Assam)
............ Petitioner
- Versus -
1. The State of Assam.
2. Anowara Khatun,
W/o- Fazar Ali,
Village- Uttar Ballamguri,
P.O- Ballamguri,
P.S- Bijni,
District- Chirang (BTAD)
Assam.
3. Farida Khatun,
W/o- Jahirul Islam
Village- Takimari (Ratangaon),
P.O- Takimari,
P.S- Lakhipur
District- Goalpara (Assam)
........ Respondents
BEFORE
HON'BLE MR. JUSTICE N. CHAUDHURY
For the petitioner: Mr. S. Hussain, Advocate
For the respondents: Mr. S. Munir, Addl.P.P, Assam,
Mr. S. Ali, Advocate
Date of Hearing : 12.07.2016.
Date of Judgment: 12.07.2016.
Crl.Pet.234/2016 Page 1 of 5
JUDGMENT & ORDER (ORAL)
Heard Mr. S. Hussain, learned counsel for the petitioner, Mr. S. Ali, learned counsel for the opposite parties No. 2 and 3 and Mr. S. Munir, learned Additional Public Prosecutor on behalf of the respondent No.1.
2. This is an application u/S 482 of the Cr.P.C praying for quashment of Charge-sheet No.129/2013 filed by the Investigating Officer on 24.09.2013 in connection with Bijni P.S Case No.13/2012 u/S 376/506 IPC. The present petition is based on an unusual set of facts and consequently an unusual stand has to be taken in demand of the facts and circumstances prevailing in the case.
3. The opposite party No.2 herein as complainant lodged a complaint before the Sub Divisional Judicial Magistrate, Bijni alleging that the present petitioner entered into her house during absence of the guardian and had sexual intercourse with her minor daughter against her will. The victim subsequently disclosed the incident and thereafter, there was series of meetings between the guardians of both sides. Ultimately, when it was discovered that the victim had become pregnant, in the meantime, necessity for filing of complaint arose. The opposite party No.2 prayed in the complaint for drawal up of appropriate proceedings so as to punish the present petitioner. The learned Judicial Magistrate upon receipt of the complaint, referred it to the concerned police station u/S 156(3) of the Cr.P.C for holding enquiry and this is how Bijni P.s Case No.13/2012 came to be registered u/S 376/506 IPC. Be that as it may, even if the allegations leveled in the complaint were taken at face value, it would have been just and proper on the part of the concerned Officer-in-Charge to register a case u/S 6 of the Protection of Children from Sexual Offences Act, 2012, but inadvertently or otherwise, the case was wrongly registered u/S 376/506 IPC. After completion of the investigation, police submitted charge-sheet against the accused person and sent him up for trial.
4. The occurrence had taken place way back in 2011 and the case was registered in the year 2012 and when the charge-sheet was filed, yet one year had elapsed. During this intervening period, there must have been Crl.Pet.234/2016 Page 2 of 5 change of circumstances, whereby the parties came to a meeting point and in the process, the petitioner accepted the opposite party No.3 on 18.04.2012 by form of a formal marriage. The victim was 16 years old at the time the offence was allegedly committed. The perpetrator of the alleged offence and the victim both profess the faith of Islam and under such circumstances, at that stage, the victim was legally of marriageable age in terms of Mohammadan Law.
5. By filing an affidavit on behalf of the opposite party Nos. 2 and 3 before this Court, the victim and the complainant have unequivocally stated that the victim and the petitioner have been living together happily as husband and wife and about five years have elapsed since then with at least one child. The learned counsel for the opposite parties submits that they have no objection if the criminal proceeding is quashed in exercise of power u/S 482 of Cr.P.C in view of the peculiar facts and circumstances prevailing in the case.
6. Mr. S. Munir, learned Additional Public Prosecutor also submits that ends of justice shall be met if the criminal proceeding is quashed at the stage as otherwise there is likelihood of breaking down of a happy marital life.
7. Mr. S. Hussain, learned counsel for the petitioner has pressed into service a judgment of the Hon'ble Supreme Court in the case of Narinder Singh and others -vs- State of Punjab and another , reported in (2014) 6 SCC 466 . The aforesaid judgment of the Hon'ble Supreme Court arose out of an un-compoundable offence u/S 307/324/323/34 IPC and in that case taking into consideration the subsequent facts and circumstances as to compromise, the Hon'ble Supreme Court shows to order for quashment of the proceeding. Paragraph-33 of the judgment is inserted for the purpose of the present case and accordingly the same is quoted below:-
"We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute, etc. is not stated in detail. However, a very pertinent statement appears on record Crl.Pet.234/2016 Page 3 of 5 viz. 'respectable persons have been trying for a compromise until now, which could not be finalized.' This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to he led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14-7-2010 registered with Police Station Lopoke, District Amritsar Rural be quashed. We order accordingly."
8. Law was laid down way back in the case of M adhavrao Jiw aji R ao Scindia and another -versus- Sam bhajirao Chandrojirao Angre and others, reported in (AIR 1988 SC 709) that a proceeding may be quashed, if the chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue. This is because otherwise the parties and the witnesses will be dragged to Court and process of the Court will be abused for no purpose. When the parties have already entered into compromise, even if they are dragged to Court as witnesses, there is every likelihood of their turning back from the allegations and in that event, the learned Court will be left with no other alternative but to acquit the accused person. In that event, there will be unnecessary engagement of valuable judicial time and so taking a practical Crl.Pet.234/2016 Page 4 of 5 view of the matter, it appears to be proper to accept the reality and to put an end to the ongoing litigation.
9. The victim has become an adult in the meantime. She has been happily residing with the petitioner as his legally married wife with a child in her lap. Under the given circumstances, the ends of justice will demand that they should be left at their will and their otherwise happy marital life should not be allowed to be disturbed by the interfering clouds of litigations looming over their heads. In that view of the matter, since chances of conviction in the case is bleak in view of the compromise between the parties and marriage between the petitioner and the opposite party No.3, no useful purpose shall be served by dragging them to Court anymore and to compel the witnesses to come at the expense of the valuable judicial time.
10. The application stands allowed.
11. The charge-sheet No.129/2013 dated 24.09.2013 filed by prosecution in Bijni P.S Case No.13/2012 corresponding to GR Case No.27/2012 of the Court of learned Judicial Magistrate, Bijni stands quashed.
JUDGE Alam Crl.Pet.234/2016 Page 5 of 5