Single judge quashed an FIR under Section 363 IPC and charge sheet after finding that the alleged victim had eloped with and married the accused. Continuing proceedings despite marriage and childbirth would be an abuse of process.
FIR under Section 363 IPC and Charge Sheet set aside and quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010172062022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./864/2022
MD. BAHARUL ISLAM AND ANR S/O MD NURUL AMIN CHOUDHARY R/O VILL- MOWAMARI, P.O. MOWAMARI P.S. SAMAGURI, DIST. NAGAON, ASSAM PIN-782140
2: HABIJA KHATUN @ ESHA DEY W/O MD. BAHARUL ISLAM R/O VILL- MOWAMARI
P.O. MOWAMARI P.S. SAMAGURI
DIST. NAGAON ASSAM PIN-78214
VERSUS
THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM
2:SMTI. MAMONI DEY W/O SRI KALINGA DEY R/O RANGAMATI SILIM KHOWA P.S.-SAMUGURI DIST-NOWGAON ASSAM PIN-78213
Advocate for the Petitioner : MR. K R BORA
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Advocate for the Respondent : PP, ASSAM
:: BEFORE ::
HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
11.12.2023
Heard the learned counsel Mr. K.R. Bora appearing for the petitioners. Also heard Ms. S. Jahan, the learned Addl. Public Prosecutor representing the State of Assam/respondent no.1. Mr. S. Chauhan, learned counsel appears for respondent no.2.
2. This is an application under Section 482 of the CrPC praying for quashing the FIR of Samaguri P.S. Case No.732/2019 under Section 363 of the Indian Penal Code and the Charge Sheet No.240/2020 (corresponding to PRC No.3735/2021) pending before the court of learned SDJM(S), Nowgaon, Assam.
3. The respondent no.2 had lodged an FIR before police alleging that on 25.12.2019 at about 11 A.M., her daughter who was doing her studies in a Junior College at Samaguri, was found missing. The informant has stated that she searched for the girl in different places and finally came to know that the girl was kidnapped by Md. Baharul Islam.
4. On conclusion of investigation, police filed the charge sheet against the said Baharul Islam.
5. It has been pointed out that in her statement under Section 164 of the CrPC, the victim girl claimed to be 17 years old and she has claimed
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that she was in love with Baharul Islam and she eloped with him on her own.
6. Mr. Chauhan appearing for the informant, has agreed that the girl is now married to Baharul Islam and the couple has become parents of a girl child. Mr. Chauhan submits that the informant no longer wants Baharul Islam to be punished.
7. I have considered the submissions made by the learned counsels of both sides.
8. The guidelines for quashing of the criminal proceeding has been laid down by the Hon’ble Supreme Court in State of Haryana and Ors. -versus- Bhajanlal and Ors. , reported in AIR 1992 SC 604 . Paragraph 102 of the said judgment is quoted hereunder:
“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 channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
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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.
9. In Bhajanlal (supra), the Supreme Court has cautioned that the power under Section 482 of the CrPC is to be sparingly used by the High Courts. The power under Section 482 of the CrPC is meant to prevent abuse of the process of the court.
10. Reverting to the case in hand, this Court is of the opinion that the ratio laid down by the Hon’ble Supreme Court is applicable in the present case. I find that under the given facts and circumstances of the case, there is no possibility of future conviction of Baharul Islam (petitioner) in this case. Thus, allowing the criminal proceeding to
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continue before the learned trial court would be nothing but an abuse of the process of the court. It is a fit case for exercising the power under Section 482 of the CrPC.
11. In view of the above, the FIR of Samaguri P.S. Case No.732/2019 under Section 363 of the Indian Penal Code and the Charge Sheet No.240/2020 (corresponding to PRC No.3735/2021) pending before the court of learned SDJM(S), Nowgaon, Assam, is set aside and quashed.
The Criminal Petition stands disposed of accordingly. ]
JUDGE
Comparing Assistant
3 issues framed by the court
Whether Section 482 CrPC power should be exercised to quash the FIR under Section 363 IPC given that the alleged victim is now married to the accused.
If allowing the criminal proceeding to continue would constitute an abuse of the process of the court.
Whether the complaint of kidnapping is substantiated given the uncontroverted facts of marriage and motherhood.
Colour shows how this judgement treated each authority
State of Haryana and Ors. vs. Bhajanlal and Ors.Relied on¶28
State of Haryana and Ors. -versus- Bhajanlal and Ors., AIR 1992 SC 604 · Who else cites this
5 provisions across 2 enactments
Md. Baharul Islam and Anr
State of Assam
Mamoni Dey
Parthivjyoti Saikia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
