Md. Iyad Ali @Iyadul Islam Vs the State of Assam and 2 Ors.

Heard Mr. N. Uddin, the learned counsel appearing for the petitioner as well as Mrs. N. Das, the learned Addl. Public Prosecutor, Assam representing Respondent No.1. Also heard Mr. M. Islam, the learned counsel representing Respondent Nos.2 and 3.

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2. This is an application under Section 528 of the BNSS, 2023 praying for quashing the criminal proceedings of Sessions (Spl.) Case No.24 of 2021 pending in the court of Special Judge (POCSO), Kamrup (M), Guwahati.

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3. On 26.11.2018, the Respondent No.2 Mahima Begum had lodged an Ejahar before police alleging that on a particular day in the month of December, 2017 at about 1 P.M., while her minor daughter was alone in the house, the present petitioner Iyad Ali had committed rape upon her. He also threatened her of dire consequences if she had disclosed the matter to the informant i.e. her mother.

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4. After that incident, Iyad Ali continued to visit the house of the informant while her daughter was alone in the house and on promise of marriage, he continued to have sexual relationship with her.

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5. On 25.07.2018 at about 1 P.M., while the daughter of the informant was alone in the house, the petitioner Iyad Ali had sexual intercourse with her. But this time, before his departure, he told the girl that he would not marry her.

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6. In the meantime, the informant arrived home and he saw that her daughter was crying. The informant inquired about the reason. This time, she disclosed everything before her mother.

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7. The informant mother informed the Village Head who promised her to solve the dispute but he failed to do so. Ultimately, the informant had to lodge the FIR before police alleging the aforesaid facts.

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8. By filing the present petition, the petitioner has submitted that he has already married the Respondent No.3 on 27.02.2019. Now, they are living peacefully with their two children.

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9. Mr. Islam, appearing on behalf of Respondent Nos.2 and 3, has also supported the claim of the petitioner and submitted that both the respondents do not want to proceed further with this case. According to the learned counsel, the petitioner and the respondent no.3 are living a peaceful family life with their two children.

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

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11. Section 528 of the BNSS, 2023, is peri materia to Section 482 of the Code of Criminal Procedure. 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. 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,

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

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

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14. The criminal proceedings of Sessions (Spl.) Case No.24 of 2021 pending in the court of Special Judge (POCSO), Kamrup (M), Guwahati, is quashed and set aside. The Criminal Petition is disposed of.

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JUDGE

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Comparing Assistant

Md. Iyad Ali @Iyadul Islam v. the State of Assam and 2 Ors.

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Md. Iyad Ali @Iyadul Islam v. the State of Assam and 2 Ors.

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