Sheikh Noor Islam Vs the State of Assam and Anr.

Heard Mr. L. K. Bora, learned counsel appearing for the petitioner. Also heard Mr. N. Mahajan, learned counsel appearing for the informant/respondent No. 2 and Ms. A. Begum, learned Additional Public Prosecutor appearing for the state respondent.

¶29

By way of this petition under Section 482 of Cr.P.C, the petitioner is seeking quashing of the FIR dated 05.07.2019

¶30

Page 2 of 9

¶31

pertaining to Bhangagarh PS Case No. 242/2019 registered under Section 420 of IPC and subsequent FIR dated 10.07.2019 in connection with Bhangagarh PS Case No. 252/2019 under Section 120 (B)/420 of IPC.

¶32

The brief facts of the case are that on 05.07.2019 the respondent/informant no. 2 had lodged an FIR alleging inter alia that on 05.07.2019 at about 1.00 PM the petitioner and his some masons started digging and were installing some pillar in the disputed area between the two buildings in questions thereby violating the compromise and settlement agreement entered between them before the Paltan Bazar Police station in the year 2001 being GEE No. 293. Accordingly a case was registered as Bhangagarh PS Case No. 242/2019 under Section 420 of IPC. Thereafter, another FIR on 10.07.2019 was filed by the respondent against the petitioner/accused being Bhangagarh PS Case No. 242/2019 under Section 120 (B)/420 IPC on the same allegations and the same incident by referring the earlier FIR dated 05.07.2019.

¶33

The informant/respondent No. 2 is the younger brother of the petitioner and they reside in the adjacent buildings and there has been a long period of boundary dispute going on between them. In fact, in the year 2001 also pursuant to both the parties lodging criminal complaints against each other, the matter was later on compromised and thereafter a compromise deed was executed between them on 06.07.2001.

¶34

Page 3 of 9

¶35

Mr. L. K. Bora, learned counsel appearing for the petitioner submits that the allegation made in the two FIRs in question is purely civil in nature and no criminal offence whatsoever is made out.

¶36

Per contra, Mr. N. Mahajan, learned counsel appearing for the informant/respondent No. 2 submits that the petitioner has violated the terms of the settlement deed resulting in lodging the two FIRs in question.

¶37

Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent also fairly contends that the averments made in the FIR on the face of it does not constitute any criminal offence whatsoever.

¶38

I have given my prudent consideration to the learned counsel appearing for both the parties and also have perused the material available on record. I have also duly considered the case laws cited at the bar.

¶39

The principle of exercise of power under Section 482 of Cr.P.C to quash the FIR is laid down by the Apex Court in the case of State of Haryana and Ors. VS. Bhajan Lal and Ors reported in 1992 Supp (1) SCC 335, which read as hereunder:-

¶40

“(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.

¶41

Page 4 of 9

¶42

(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.

¶43

(3) Where the uncontroverted allegations made in the FIR or com-plaint 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.

¶44

(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.

¶45

(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.

¶46

(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.

¶47

(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.”

¶48

Page 5 of 9

¶49

The instant case is squarely covered by category 1, 3 and 7 of the principles laid down in the said decision by the Apex Court for exercising power under Section 482 of Cr.P.C in order to prevent abuse of the process of any court.

¶50

It is undisputed that earlier also the petitioner and the informant/respondent No. 2 have lodged criminal complaints against each other over the same boundary dispute and after settling the same in the police station had withdrawn their respective FIRs.

¶51

The said settlement arrived on 06.07.2001 before the Officer-in-Charge of Bhangagarh Police Station reads as under:

¶52

“The Officer in charge Bhangagarh Police Station Guwahati- 781005

¶53

5^th July, 2019

¶54

Respected Sir,

¶55

Subject: Violation of Compromise Agreement dated: 6 July, 2001, bearing GEE No. 293 by my neighbour (Sheikh Noor Islam) by Encroachment of my Open Space and Drain

¶56

I, Sheikh Noor iman Mukhtar, am the owner of the building S.N. Market, Opposite-ICICI Bank, In Bhangagarh, G.S. Road, Guwahati-781005.

¶57

My neighbour, Sheikh Noor Islam, has a bullding by the name of Nikita Market on the western side of my property. There is a gap of 32 inches between my building and his which belongs to me as per the Compromise and Settlement Agreement signed between him (Sheikh Noor Islam) and me (Sheikh Noor Iman Mukhtar) before the Paltan Bazar Police Station in the

¶58

Page 6 of 9

¶59

year 2001 (dated: 6th July, 2001) bearing GEE No. 293. I am attaching the compromise letter along with this application.

¶60

In the compromise agreement, Sheikh Noor Islam had agreed to leave a space of 32 inches from the wall of my building and promised not to do any construction on that area. I have been using the space for my drainage and signboard and water connection purposes.

¶61

Today (5 July, 2019), at around 1:00 PM, Sheikh Noor Islam employed some masons and workers and started digging that area to install some pillar or something of that nature. My employees tried to request him not to do anything in that area as it belongs to me, but he didn't listen to my requests.

¶62

Respected Sir, I most humbly request you to kindly come to the area and stop the illegal construction by Sheikh Noor Islam and his workers in my area. He is himself violating the compromise and settlement agreement signed by him and me before the Paltan Bazar Police Station. Respected Sir, it is a very urgent matter and I beg you to kindly help me in this moment of my need. Sheikh Noor Islam is continuing the work in full swing as I am writing this application to you.

¶63

Yours sincerely,

¶64

Sheikh Noor Iman Mukhtar”

¶65

It appears that despite the aforesaid settlement, there have been differences between them. The informant/respondent No. 2 on 05.07.2019 alleging that the petitioner by employing some mason and workers to dig the disputed area to install some pillar, lodged the FIR in question and the subsequent FIR on the same allegations. Accordingly a case under under Section 420 of IPC was registered against the petitioner.

¶66

Page 7 of 9

¶67

A plain reading of the FIRs indicates that no averments whatsoever of the ingredients constituting of an offence under Section 420 of IPC is made therein. Hence, no case of cheating is made out.

¶68

In fact, it is clearly evident that the allegations made in the FIR is simple breach of terms of a settlement deed arrived between the petitioner and respondent No.2. Hence, the dispute is purely contractual and civil in nature. It is submitted at the bar that a civil suit pertaining to the issue of the boundary dispute is also pending before the civil court. It is further apparent that the instant criminal proceedings have been attended by the informant/respondent No. 2 only on the allegation that the petitioner has violated the settlement terms. Hence, the instant FIR is manifestly attended with mala fide and malicious intention only with an ulterior motive for racking vengeance on the petitioner in view of their long pending boundary dispute. Hence, the lodging of the two instant FIRs in question is a total abuse of the process of court.

¶69

That being so, continuation of further criminal proceeding pertaining to the said two FIRs in question is not justified and in order to secure the ends of justice, the same warrants to be set aside and quashed.

¶70

Resultantly, the FIR dated 05.07.2019 pertaining to Bhangagarh PS Case No. 242/2019 registered under Section 420 of IPC and subsequent FIR dated 10.07.2019 in connection with Bhangagarh PS Case No. 252/2019 under

¶71

Page 8 of 9

¶72

Sections 120 (B)/420 of IPC are hereby set aside and quashed.

¶73

Accordingly, the criminal petition is allowed and disposed of.

¶74

JUDGE

¶75

Comparing Assistant

¶76

Page 9 of 9

Sheikh Noor Islam v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Sheikh Noor Islam v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Tapan Deb Vs Smt Sandhya Chaudhury and Anr.

Dhruba Jyoti Borah Vs the State of Assam and Anr.

Md. Nur Siddique Ali Vs State of Assam

Santosh Newar and 3 Ors. Vs the State of Assam and 2 Ors.

Sheikh Noor Iman Mukhtar and Anr. Vs the State of Assam and Anr.

Mustt. Kudratani Khatun @ Ramisa Khatoon Vs State of Assam