Dismissed

Ariful Islam v. the State of Assam and Anr.

Gauhati HC16 Sept 2022Crl.Pet./158/2022

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a quashing petition under Section 482 CrPC concerning an FIR alleging rape and robbery. The Court held that serious offences cannot be quashed and the accused's defence cannot be considered at the investigation stage.

What did the court decide?

The petition was dismissed; any stay granted earlier was vacated, and the case diary was returned to the police.

Ariful Islam Vs the State of Assam and Anr. — Quashing and FIR | Gauhati HC (2022)

¶1

Page No.# 1/11

¶2

GAHC010029412022

¶3

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

¶4

Case No. : Crl.Pet./158/2022

¶5

ARIFUL ISLAM

¶6

S/O JAHIRUL ISLAM, VILL-DHARAKOBA, P.S.-MANKACHAR, DIST-S. SALMARA MANKACHAR, ASSAM, PIN-783131

¶7

VERSUS

¶8

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

¶9

2:ASMA KHATUN W/O JOSIJAL HOQUE VILL-DHARAKUBA P.S.-MANKACHAR DIST- SS MANKACHA

¶10

Advocate for the Petitioner : MS. T SOM

¶11

Advocate for the Respondent : PP, ASSAM

¶12

BEFORE

¶13

HON’BLE MR. JUSTICE ROBIN PHUKAN

¶14

Date of hearing : 20.07.2022. Date of judgment : 16.09.2022.

¶15

Page No.# 2/11

¶16

JUDGEMENT AND ORDER

¶17

Heard Ms. T. Som, learned counsel appearing for the petitioner. Also heard Mr. D, Das, learned Addl. P.P., Assam appearing for the State/respondent No.1 and Mr. R. Majumdar, learned counsel appearing for the informant/respondent No.2.

¶18

This petition under Section 482 of the CrPC is preferred by applicant Md. Ariful Islam for quashing of the FIR of Mancachar P.S. Case No.310/2017, under Sections 354/457/376/511/379/506 of the IPC.

¶19

The factual background leading to filing of the present petition is briefly stated as under:

¶20

“On 04.05.2017, one Smti X (name withheld), lodged one FIR with the Officer-in-Charge of Mancachar P.S., alleging inter alia, amongst others that her husband used to stay at Guwahati and taking the chance of his absence, the accused used to convey indecent gesture to her. On the night of 02.05.2017, at about 10:30 P.M., while she was sleeping along with her three children, accused Ariful Islam entered into her house by opening the door and caught hold of her and tried to rape her. She could identify him and raised hue and cry and thereafter he pressed her neck and snatched away one gold chain from her neck and while the accused was going out of her house, then one Abdul Kader, his wife Meherun Nessa and one Mintu have seen the accused”.

¶21

Upon the said FIR, the Officer-in-Charge of Mancachar P.S. registered the above noted case and investigation is being carried out. Being aggrieved, the petitioner approached this Court by filing the present petition on the ground that no ingredients of the offence under Section 376 of the IPC is made out from a bare perusal of the FIR and that there is no eye

¶22

Page No.# 3/11

¶23

witness to the occurrence and that there is delay in lodging the FIR, while the occurrence took place on the night of 02.05.2017, the FIR was lodged on 04.05.2017 and the delay has not been explained and the FIR is vexatious and filed with ulterior motive and the chance of conviction of the accused is bleak and therefore, it is contended to allow this petition, by setting aside and quashing the FIR.

¶24

Ms. T. Som, learned counsel for the petitioner submits that on a bare perusal of the FIR reveals no ingredients under Section 376 of the IPC and that the petitioner belongs to a well to do family and there is no question of snatching away the gold chain from the neck of the informant and that the victim used to give indecent gesture to the petitioner and the petitioner pays no heed to the same, as such the victim has lodged the case involving the petitioner in non-bailable offence and the medical report has not supported the version of the victim and there may be exaggeration in her statement recorded under Section 161 and 164 of the CrPC and therefore, it is contended to allow this petition.

¶25

On the other hand, producing the case diary before this Court, Mr. D. Das, learned Addl. P.P., Assam submits that the I.O. has collected sufficient materials in support of the allegation made in the FIR and this is a clear case under Section 376 of the IPC and as such, at this stage the inherent power of the Court under Section 482 CrPC cannot be invoked to quash the FIR.

¶26

On the other hand, Mr. R. Majumdar, learned counsel for the informant/respondent No.2 also submits that this is not a fit case where the power under Section 482 CrPC can be invoked to quash the proceeding and therefore, it is contended to dismiss the petition.

¶27

After hearing learned Advocates of both sides, I have carefully gone through the

¶28

Page No.# 4/11

¶29

petition and documents placed on record and also perused the case diary, produced before this Court.

¶30

It appears that having registered a case under Sections 354/457/376/511/379/506 of the IPC, upon the FIR lodged by the complainant, the I.O. has carried out the investigation and examined the witnesses and got the victim examined by the Doctor and collected the report and also recorded her statement under Section 161 CrPC as well as under Section 164 CrPC recorded in the Court.

¶31

The following facts and circumstances are emerged from a bare perusal of the FIR and the statements of the victim:

¶32

(i) on the night of 02.05.2017, the husband of the victim was absent, as he stays in Guwahati in connection with his work,

¶33

(ii) the petitioner used to show indecent gesture to the informant,

¶34

(iii) on 02.05.2017, at about 10:30 P.M., the petitioner entered into the house of the informant by opening the door,

¶35

(iv) having entered into her house, the petitioner caught hold of the informant and committed rape upon her,

¶36

(v) the informant could identify the petitioner and raised hue and cry and then the petitioner pressed her neck and threatened to kill her,

¶37

(vi) the petitioner then snatched away the chain of gold, worth Rs.45,000/- from the neck of the informant, and

¶38

(vii) the brother-in-law of the informant, namely Abdul Kader, his wife Meherun Nessa and

¶39

Page No.# 5/11

¶40

one neighbor Mintu have noticed the accused, while he was going out of her house.

¶41

Thus, the factual foundation of the offences under Section 457/354/376/379/506 IPC appears to be clearly laid down in the FIR and the case is in the investigation stage. The allegations are serious in nature and it appears that the investigation is about to complete and there remains to arrest the petitioner only.

¶42

While dealing with the issue of quashing the FIR in connection with serious offences,

¶43

the Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. Laxmi Narayan

¶44

and others , reported in (2019) 5 SCC 688 , relying on 2 (two) other judgments- Gian Singh Vs. State of Punjab [(2012) 10 SCC 303] and Narinder Singh Vs. State of Punjab [(2014) 6 SCC 466 , in paragraph No. 13, has held as under:-

¶45

“(i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

¶46

ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

¶47

iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender”

¶48

Again, in the case of Dineshbhai Chandubhai Patel Vs. The State Of Gujarat ,

¶49

reported in (2018) 3 SCC 104 , following earlier decision in State Of West Bengal & Ors

¶50

vs Swapan Kumar Guha & Ors. , reported in (1982) 1 SCC 561 , it has been held that

¶51

High Court cannot decide the issue arising out of the case like an investigating agency or/and

¶52

Page No.# 6/11

¶53

appellate authority decides, by little realizing that it was exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure.

¶54

In the case of Swapan Kumar Guha (supra) , it was held that right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power to investigate into cognizable offences.

¶55

In the case of M/s. Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra

¶56

& Ors. (2021 SCC OnLine SC 315) , the Hon’ble Supreme Court has held as under:

¶57

“i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

¶58

ii) Courts would not thwart any investigation into the cognizable offences;

¶59

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

¶60

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).

¶61

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

¶62

vi) Criminal proceedings ought not to be scuttled at the initial stage;

¶63

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

¶64

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police,

¶65

Page No.# 7/11

¶66

since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

¶67

ix) The functions of the judiciary and the police are complementary, not overlapping;

¶68

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

¶69

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

¶70

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

¶71

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

¶72

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

¶73

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

¶74

Page No.# 8/11

¶75

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

¶76

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

¶77

xviii) ……………………………………………………………………..”

¶78

The proposition of law, that can be crystallized from the discussion made herein above

¶79

is that the power under Section 482 of the Code of Criminal Procedure cannot be exercised in those prosecution cases which involve heinous and serious offence of mental depravity or

¶80

offence like murder, rape, dacoity etc. Such offences are not private in nature and have a serious impact upon society.

¶81

In the case in hand, the allegation against the petitioner is under Sections

¶82

Page No.# 9/11

¶83

354/475/376/511/379/506 of the IPC. The factual foundation of the said offences are clearly laid in no uncertain terms in the FIR. And sufficient materials are collected by the I.O. during investigation in support of the same. The offence under Section 376 IPC, as held by the Hon’ble Supreme Court, consistently in the case of Laxmi Narayan (Supra) and also in the case of Gian Singh vs. State of Punjab , reported in [(2012) 10 SCC 303] and Narinder Singh vs. State of Punjab , reported in [(2014) 6 SCC 466] is serious in nature and involve mental depravity and the same is not private in nature and has serious impact in the society.

¶84

Though the petitioner has taken the plea that he belongs to a well to do family and is an educated person and there is no question of involving in snatching away the gold chain of the informant, yet those defence pleas to be taken by the petitioner, during the course of trial, not at this stage.

¶85

Hon’ble Supreme Court in the case of Mohd. Akram Siddiqui vs. State of Bihar reported in (2019) 13 SCC 350 held that ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng

¶86

Hsiung vs. Essem Chemical Industries ; State of Haryana vs. Bhajan Lal and Harshendra Kumar D. vs. Rebatilata Koley to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered.

¶87

In the case of CBI v. Arvind Khanna , reported in (2019) 10 SCC 686 , Hon’ble

¶88

Page No.# 10/11

¶89

Supreme Court has held as under :-

¶90

“17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.

¶91

In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for.”

¶92

Thus it is well settled that at the time of quashing the FIR, the defence plea of the petitioner/accused is not required to be considered. Therefore, this Court is unable to record concurrence with the submission made by the learned counsel for the petitioner.

¶93

I have also carefully gone through the case laws i.e. (1) Gagan Deep Singh Rana vs. State of Punjab and others in CRM M-28748 of 2011 of the Punjab and Haryana High Court, (2) Manoj Bajpai vs. State of Delhi in W.P. (CRL) 771/2014 and Crl. M.A.5999/2014 of the Delhi High Court and (3) Jaimeet Singh Kalra and others vs. State and another in Crl. M.C.1474/2019 of the Delhi High Court, referred by Ms. T. Som, learned counsel for the petitioner and I find that in all the three cases, compromise was effected between the parties and to that effect, affidavit has been filed by the State respondent, and thereafter, on the basis of the said affidavit, the Court has allowed the petition. But, the facts and circumstances of the case in hand is quite different from those cases and no compromise was effected between the parties. Therefore, this Court is of the view that the case laws, referred by Ms. T. Som, learned counsel for the petitioner would not

¶94

Page No.# 11/11

¶95

come into aid of her case.

¶96