Md. Afaz Uddin Vs the State of Assam and Anr.

Heard Mr. G. Uddin, the learned counsel appearing for the petitioner. Also heard Mr. K. Baishya, the learned Addl. Public Prosecutor, Assam representing respondent no.1. Heard Mr. M.Z. Rahman, the learned counsel appearing for the respondent no.2.

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2. This is an application under Section 528 of the BNSS, 2023, praying for quashing the proceedings of G.R. Case No.3145/2019 arising out of Laluk P.S. Case No.151/2019 pending in the court of learned Sub-Divisional Judicial Magistrate, Lakhimpur, North Lakhimpur.

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3. On 18.12.2019, the Respondent No.2 being a married lady having a child, lodged an FIR before police alleging that the petitioner being her uncle, attempted to commit rape upon her. Her other relatives saved her after she shouted loudly. She had informed her husband but he assaulted her. According to the informant/respondent no.2, her husband had instigated the present petitioner so that she will be thrown out of her marital house.

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4. Today, the learned counsel Mr. Rahman appearing for the respondent no.2 has submitted that the entire case came into being because of misunderstanding of facts. According to Mr. Rahman, no such incident had actually taken place.

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5. The petitioner submits that he is totally innocent and during investigation police never called him and therefore, he never had any knowledge about the case. He submitted that he has been unnecessarily shown in the charge sheet as an absconder.

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6. I have given my anxious considerations to the submissions made by the learned counsel of both sides in the light of the materials available before me.

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7. The guidelines for consideration of a petition under Section 482 of the CrPC has been laid down by the Hon’ble Supreme Court in State of Haryana v. BhajanLal, 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.

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(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.

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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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8. Reverting to the case in hand, since the victim woman has claimed that the entire incident took place because of misunderstanding of facts, there is no possibility of the future conviction of the petitioner in this case. Under the circumstances, allowing the criminal proceeding to continue before the trial court, would be noting but an abuse of the process of the court.

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9. This is a fit case for exercising power under Section 528 of the BNSS, 2023. Therefore, the criminal petition is allowed.

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10. Accordingly, the proceedings of G.R. Case No.3145/2019 arising out of Laluk P.S. Case No.151/2019 pending in the court of learned Sub-Divisional Judicial Magistrate, Lakhimpur, North Lakhimpur, is quashed and set aside.

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The criminal petition is disposed of.

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JUDGE

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Comparing Assistant

Md. Afaz Uddin v. the State of Assam and Anr.

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Md. Afaz Uddin v. the State of Assam and Anr.

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