Nur Zamal @ MD Nurjamal and Anr. Vs the State of Assam and Anr.

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GAHC010021602025

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

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Case No. : Crl.Pet./132/2025

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NUR ZAMAL @ MD NURJAMAL AND ANR. S/O EYAKUB ALI @ EYAKUB ALI VILL- PIPULBARI PT. IV, P.O.MANULLAPARA P.S. MANKACHAR DIST. SOUTH SALMARA MANKACHAR, ASSAM, PIN-783135

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2: JOSMINARA BEGUM @ JESMINARA BEGUM W/O NUR ZAMAL @ MD.NURJAMAL VILL- PIPULBARI PT. IV P.O.MANULLAPARA P.S. MANKACHAR

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DIST. SOUTH SALMARA MANKACHAR ASSAM PIN-78313 VERSUS

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THE STATE OF ASSAM AND ANR. REP BY THE PP, ASSAM

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2:ASHRAFUL HUSSAIN S/O SAKIM UDDIN SARKAR VILL- PIPULBARI PT. IV P.O.MANULLAPARA P.S. MANKACHAR

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DIST.SOUTH SALMARA MANKACHAR ASSAM PIN-78313

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Advocate for the Petitioner : MR. M R KHANDAKAR,

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Advocate for the Respondent : PP, ASSAM,

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:: BEFORE ::

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HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

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O R D E R

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12.02.2025

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Heard Mr. M.R. Khandakar, the learned counsel appearing for the petitioners. Also heard Mr. D. Das, the learned Addl. Public Prosecutor, Assam representing the State.

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2. This is a joint application under Section 482 of the CrPC read with Section 528 of the BNSS, 2023, praying for quashing the criminal proceedings of Special (P) Case No.119/2024 pending in the court of Special Judge, South Salmara, Mankachar.

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3. A stranger lodged an FIR before police alleging that the petitioner Nur Zamal @ Md. Nurjamal had married a minor girl who was below 18 years of age. Actually, at the relevant point of time, the girl was 17 years old, thereby violated the provisions of Prevention of Child Marriage Act.

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4. Now, both, the first petitioner Nur Zamal @ Md. Nurjamal and the second petitioner Josminara Begum @ Jesminara Begum have jointly field the present petition stating that they are living peacefully and they are already blessed with a child. Both of them prayed for quashing the criminal proceeding against Nur Zamal @ Md. Nurjamal.

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5. Mr. Das submits that since it is a case under the provision of POCSO Act, notice to the informant has to be sent.

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6. I have considered the submissions made by the learned counsel of both sides.

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7. This petition has been filed jointly by the girl and the boy. The informant is a stranger. Serving notice upon him would be nothing but an abuse of the process of the court.

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8. The guidelines for consideration of a petition under Section 482 of the CrPC (now Section 528 of the BNSS, 2023 ) has been laid down by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Paragraph 102 of the judgment reads as under:

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“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.

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(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.

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(2) Where the allegations in the first information report and other 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.

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(3) Where the uncontroverted allegations made in the FIR 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.

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(4) Where, the allegations in the FIR 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.

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(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

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provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(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.”

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9. Reverting to the case in hand, I find that under the given circumstances of the case, there is no possibility of future conviction in this case. So, allowing the criminal proceeding to continue before the trail court would be nothing but an abuse of the process of the court.

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10. This Court is of the opinion that this is a fit case for exercising power under Section 482 of the CrPC read with Section 528 of the BNSS, 2023. The criminal petition is allowed.

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11. Accordingly, the proceedings of Special (P) Case No.119/2024 pending in the court of Special Judge, South Salmara, Mankachar, is quashed and set aside.

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The criminal petition is disposed of.

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JUDGE

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Nur Zamal @ MD Nurjamal and Anr. v. the State of Assam and Anr.

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Nur Zamal @ MD Nurjamal and Anr. v. the State of Assam and Anr.

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