Gauhati High Court
Murtaza Ahmed vs The State Of Assam And Anr on 22 May, 2020
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
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GAHC010010872020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 36/2020
1:MURTAZA AHMED
S/O. ABDUR RAHMAN, R/O. R.N.B. ROAD, GUTLAIPATTY, HAIBORGAON,
P.O. HAIBORGAON, P.S. NAGAON SADAR, DIST. NAGAON, ASSAM, PIN-
782001.
VERSUS
1:THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM.
2:NURI AHMED @ KIMA TERANGPI
D/O. HEMARI TERANG
R/O. R.N.B. ROAD
GUTLAIPATTY
HAIBORGAON
P.O. HAIBORGAON
P.S. NAGAON SADAR
DIST. NAGAON
ASSAM
PIN-782001
Advocate for the Petitioner : MR. S H SIKDAR
Advocate for the Respondent : PP, ASSAM
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:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date-22.05.2020 Heard Mr. S.H. Sikdar, learned counsel appearing for the petitioner. Also heard Mr. B. B. Gogoi, learned Additional Public Prosecutor appearing for the State and Mr. S. Haque, learned counsel appearing for the respondent No. 2.
2. This is an application under Section 482 of the Criminal Procedure Code for quashing the criminal proceedings of G.R. Case No. 08/2018, under Sections 406/344/376 of Indian Panel Code, arising out of Kheroni P.S. case No. 03/2018.
3. On 11-01-2018, the respondent No. 2 filed the FIR before police alleging that the petitioner pretending to be Shri Moon Baruah was maintaining love affairs with her and also had sexual intercourse with her on multiple occasions. She further alleged that later on she came to know that the petitioner was a Muslim person who pretended to be a Hindu before her.
4. On the basis of the said FIR Police registered a case under Section 406/344/376 of Indian Panel Code and finally laid the charge-sheet under aforesaid Sections.
5. Thereafter the respondent No. 2 married the petitioner and on 09-08- 2018 gave birth to his child.
6. Subsequently, on 10-01-2020, the second petitioner had sworn an affidavit before the Notary Public at Guwahati stating that she has been living happily with the petitioner as his wife and is no longer interested to proceed with aforesaid criminal case.
7. Mr. B.B. Gogoi, learned Additional Public Prosecutor has submitted that the petitioner should have moved the trial Court for seeking relief on this issue. On the other hand, the learned counsel for the petitioner has submitted that Section 376 of the Indian Penal Code is not a compoundable offence and Page No.# 3/5 therefore that the Court below does not have the jurisdiction to entertain such a prayer. The learned counsel for the petitioner has submitted that it is the reason why the petitioner has approached this Court.
8. The section 482 was added by the Code of Criminal Procedure to do complete justice by the High Court if in a particular case the courts below committed illegality which was palpable and apparent. The inherent power under section 482 can be exercised only when there is no other remedy is available to a litigant.
9. In State Of Haryana And Ors vs Ch. Bhajan Lal And Ors reported in 1992 Supp (1) SCC 335 , the Hon,ble 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 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 Page No.# 4/5 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."
10. In paragraph 103 of Bhajan lal,s case (supra) the Apex court has held the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in rarest of the rare cases. Apex Court further cautioned that the Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the Complaint and the extra ordinary inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim and caprice.
11. 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.
12. Reverting to the case in hand, it is an admitted fact that the second respondent was a major when she lodged FIR before Police on 11-01-2018. She was a consenting party to the act of the petitioner. She had lodged the FIR before Police only on the ground that the petitioner had pretended to be a Hindu before her and had sex with her, though he was a Muslim.
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13. On a plain reading of the FIR dated 11-01-2018, it is clear that the only grievance of the second respondent is that the petitioner made false statement before her regarding his religion.
14. Now, the second respondent has married the petitioner and has given birth to the child of the petitioner. A birth certificate to that effect has been filed before this Court. The affidavit sworn by the second respondent has also been filed before this Court.
15. This case relates to the relationship between a husband and his wife. There is no possibility of conviction of the petitioner in future. In my considered opinion allowing the trial of the case to continue would be an abuse of the process of the Court.
16. The learned counsel for the respondent No. 2 has also submitted before this Court that now she has been happily living with her child and her husband, the petitioner.
17. I have given my anxious consideration to the matter. I agree with the petitioner and the respondent No. 2 that this is a fit case for exercising powers under Section 482 of Cr.P.C.
18. Accordingly, the criminal proceeding of G.R. Case No. 08/2018 under Section 406/344/376 of Indian Penal Court arising out of Kheroni P.S. Case No. 03/2018 pending in the Court of Judicial Magistrate 1 st Class, West Karbi Anglong, Hamren, Assam is quashed.
19. Accordingly, present petition is disposed of.
JUDGE Comparing Assistant