Gauhati High Court
Saddam Ahmed Mazumder @ Saddam Hussain ... vs The State Of Assam And Anr on 20 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 459
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/7
GAHC010002202020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 9/2020
1:SADDAM AHMED MAZUMDER @ SADDAM HUSSAIN MAZUMDER AND
7 ORS.
S/O RAJIB UDDIN MAZUMDER, VILL-BASHDAHAR PART-II, P.O.-MATIJURI,
P.S. AND DIST-HAILAKANDI, ASSAM
2: SARIMUL AHMED @ SARIM MAZUMDER
S/O RAJIB UDDIN MAZUMDER
VILL-BASHDAHAR PART-II
P.O.-MATIJURI
P.S. AND DIST-HAILAKANDI
ASSAM
3: KHALIL UDDIN MAZUMDER
S/O LATE SUNAHAR ALI MAZUMDER
VILL-BASHDAHAR PART-II
P.O.-MATIJURI
P.S. AND DIST-HAILAKANDI
ASSAM
4: LUKU MIA MAZUMDER
S/O KHALIL UDDIN MAZUMDER
VILL-BASHDAHAR PART-II
P.O.-MATIJURI
P.S. AND DIST-HAILAKANDI
ASSAM
5: BAHARUL ISLAM @ BAHAR UDDIN MAZUMDER
S/O SAFAR ALI MAZUMDER
VILL-BASHDAHAR PART-II
P.O.-MATIJURI
P.S. AND DIST-HAILAKANDI
Page No.# 2/7
ASSAM
6: AMJAD HUSSAIN MAZUMDER
S/O MATIBUR RAHMAN MAZUMDER
VILL-BASHDAHAR PART-II
P.O.-MATIJURI
P.S. AND DIST-HAILAKANDI
ASSAM
7: BEDA MIA MAZUMDER @ BEDA MIA
S/O SAMIR UDDIN MAZUMDER
VILL-BASHDAHAR PART-II
P.O.-MATIJURI
P.S. AND DIST-HAILAKANDI
ASSAM
8: AFIA BEGUM @ AFIA BEGUM MAZUMDER
D/O MUSABBIR ALI MAZUMDER
VILL-BASHDAHAR PART-II
P.O.-MATIJURI
P.S. AND DIST-HAILAKANDI
ASSA
VERSUS
1:THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:AMINA BIBI MAZUMDER
W/O MUSSABIR ALI MAZUMDER
VILL-BASHDAHAR PART-II
P.O.-MATIJURI
P.S. AND DIST-HAILAKANDI
ASSA
Advocate for the Petitioner : MR. A M BARBHUIYA
Advocate for the Respondent : PP, ASSAM
Page No.# 3/7
:::BEFORE:::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
Date of hearing & Judgment : 20.02.2020
JUDGMENT & ORDER (ORAL)
Heard the learned counsel Mr. A. M. Barbhuiya, appearing for the petitioner. Also heard Ms. A. Begum, learned counsel appearing for the respondent No. 2.
2. This is a criminal petition filed under Section 482 of the Cr.P.C., praying for quashing of the proceeding of G. R. Case No. 192/2015, arising out of Hailakandi P.S. Case No. 71/2015, pending in the Court of Chief Judicial Magistrate, Hailakandi under Sections 493//417/143/447/323/354/354B of the Indian Penal Code.
3. Shorn of details, the prosecution case against the petitioners may be stated as under.
4. The 33 years old daughter of the informant was having a love affair with Saddam Hussain Mazumdar. She, thereafter, became pregnant and at the time of filing the F.I.R by her mother, she was 8 months pregnant. The informant mother made a complaint to Khalil Uddin Mazumdar, the brother of Saddam Hussain Mazumdar, alleging that the later had made her daughter pregnant. Subsequent to that, one day Saddam Hussain Mazumdar came to the house of the informant at mid night and started troubling them, but, this time, the villagers were alreadywaiting and they apprehended him and detained him in the house of the informant. Next morning, the brothers and relatives of Saddam Hussain Mazumdar, namely, Sarin Mazumdar, Luku Mia Mazumdar, Khalil Uddin Mazumdar, Amzad Hussain Mazumdar and Beda Mia Mazumdar, arrived at the house of the informant. They were allegedly armed with deadly weapons. Together they entered in to the house of the informant and physically manhandled the informant, her daughter, her 2 sons and her husband. The informant has alleged that those persons also torn apart their wearing cloths.
5. On the basis of the said facts, albeit reduced in a written F.I.R., Hailakandi Police registered a case being No. 71/2015, under Sections 493/417/143/447/323/354/354 B of the Indian Penal Code.
Page No.# 4/7
6. Thereafter, the informant and the 7 petitioners had arrived at a compromise which was also reduced into writing. The said document has been filed along with the present petition. Not only that, the informant even sworn an affidavit at Hailakandi stating that the aforesaid compromise was arrived at because the entire incident, as aforesaid, took place due to misunderstanding of facts.
7. Even after all these, on conclusion of investigation Police filed the Charge-Sheet against the petitioners under Sections 143/447/323/393/376 of the Indian Penal Code.
8. The learned counsel for the petitioners has submitted that Saddam Hussain Mazumdar and the 33 years old daughter of the informant were in love and the story narrated in the F.I.R. is a concocted one.
9. Per contra, the learned counsel for the respondent submitted that the trial should go on and the matter should be left to the discretion of the Trial Court.
10. Regarding the allegation under Section 376 of the Indian Penal Code, the learned counsel for the petitioners has relied upon 2 (two) decisions of the Supreme Court which were rendered in Uday Vs. State of Karnataka, reported in (2003) 4 SCC 46 and Pradeep Kumar Vs. State of Bihar, reported in (2007) 7 SCC 413. In the case of Uday (supra),the Apex Court considered the earlier decisions on the subject and held as follows:
"It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must always weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."
11. In Uday's case (supra), the Court further held that --
Page No.# 5/7 "There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90, IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There, therefore, a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The, question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young person are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment succumb to temptation of having sexual relationship. This is what appears to have happened in this case as well as, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to inpute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."
12. In Pradeep Kumar @ Pradeep Kumar Verma (supra),the Supreme Court has held and laid down the ratio as under--
"A promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, I.P.C., it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375, I.P.C. clause second."
13. There is no doubt that it is an admitted fact that the petitioner Saddam Hussain Mazumdar and the 33 years old daughter of the informant were in love and as a result of which, she became pregnant. In my considered opinion and in the light of the decisions arrived at in Uday (supra) and Pradeep Kumar (Supra), no case under Section 376 of the Indian Penal Code has been made out Page No.# 6/7 against Saddam Hussain Mazumdar.
14. Regarding the offences under Sections 143/447/323/393 of the Indian Penal Code are concerned, Sections 323 & 447 are compoundable under Section 320 of the Cr.P.C. Moreover, in the case in hand the F.I.R does not disclose a prima facie case under Sections 147 & 393 of the Indian Penal Code.
15. The Apex Court in the case of Nikhil Merchant v. Central Bureau of Investigation and Anr, reported in (2008) 9 SCC 677, held that when a compromise has been arrived at between the parties, by which the parties have withdrawn all claims and allegations against each other, technicality should not be allowed to stand in the way in quashing the criminal proceedings since the same would be a futile exercise.
16. The Apex Court in another case of Madan Mohan Abbot vs. State of Punjab reported in (2008)4 SCC 582 has held:
" We need to emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law."
17. In State of Haryana &Ors. vs Ch. Bhajan Lal &Ors reported in 1992 Supp (1) SCC 335,the Supreme Court has held ---
"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 Page No.# 7/7 F.I.R do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the F.I.R. 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 F.I.R. 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."
18. Under the aforesaid premised reasons, I have no doubt that allowing the proceeding to continue before the Trial Court could be nothing but a travesty of justice. In this case, there are sufficient materials to show that the parties have already compromised the dispute between themselves. Therefore, the proceeding must be quashed. Accordingly, the proceeding of G.R. Case No. 192/2015, arising out of Hailakandi P.S. Case No. 71/2015, pending in the Court of Chief Judicial Magistrate, Hailakandi, stands quashed.
19. The criminal petition is, accordingly, disposed of.
JUDGE Comparing Assistant