Biswajit Debnath and Anr. Vs the State of Assam and Anr.

Heard Mr. P.K. Roychoudhury, the learned senior counsel assisted by Mr. JUNM Laskar, the learned counsel appearing for the petitioners. Also heard Mr. R.J. Baruah, the learned Addl. Public Prosecutor, Assam as well as Mr. D. Ullah, the learned Amicus Curiae appearing for the Respondent No.2.

¶21

2. This is an application under Section 528 of the BNSS, 2023 praying for quashing the criminal proceedings of Complaint Case No.216/2023, in respect of the petitioners Biswajit Debnath and Sahab Uddin Barbhuiya, pending in the court of the learned Judicial Magistrate 1^st Class, Kamrup(M) at Guwahati.

¶22

3. On 13.05.2023, the respondent no.2 had lodged an FIR before the police stating that she was a tenant in the house of Smti. Ruby Saikia. The respondent no.2 had alleged that on 13.05.2023 at about 2.30 P.M., Smti. Ruby Saikia had thrown her out of the tenanted premises. It was also alleged that during that incident, the respondent no.2 had lost many household articles.

¶23

4. The present two petitioners, namely- Biswajit Debnath and Sahab Uddin Barbhuiya are police officers and on 13.05.2023, they sent the respondent no.2 to the hospital for medical checkup.

¶24

5. The FIR lodged by the respondent no.2 ended in the charge sheet against Smti. Ruby Saikia.

¶25

Page No.# 3/6

¶26

6. Thereafter, the respondent no.2 filed a complaint case being Complaint Case No.216/2023 in the court of the Chief Judicial Magistrate, Kamrup(M) at Guwahati against Smti. Ruby Saikia, Smti. Mridusmita Khataniar, Subimal Laskar, Prasanta Roy, Sahab Uddin Barbhuiya, Biswajit Debnath and Gunajit Konwar.

¶27

7. In the said complaint, it was stated that the respondent no.2 was having disputes with Smti. Ruby Saikia in respect of a tenanted house and therefore the respondent no.2 was depositing the rent in the court. It is further stated that on 13.05.2023, all the aforementioned accused persons along with some other persons suddenly attacked the respondent no.2. Her valuable articles, like- 25 grms. of gold ornaments, T.V., refrigerator, dining table and clothes etc. were destroyed and went missing.

¶28

8. The respondent no.2 further alleged that the present two petitioners being police officers had helped Ruby Saikia and other accused.

¶29

9. According to the respondent no.2, all the accused persons had outraged the modesty of her daughter.

¶30

10. Mr. Ullah has submitted that on the same incident, for which a charge sheet has already been filed, the respondent no.2 has filed the complaint case. Mr. Ullah has submitted that during the hearing of the case before the trial court, if any materials appear against the present two petitioners, the trial court would be justified in exercising the power under Section 319 of the Code of Criminal Procedure. The learned Amicus Curiae has submitted that the complaint case is a repetition of the contents of the FIR lodged by the respondent no.2.

¶31

11. Mr. Roychoudhury has relied upon a judgment of the Hon’ble Supreme Court that was delivered in Md. Wajid and Another v. State of U.P. and Others, reported in (2023) 11 SCR 313. Paragraph 30 of the said judgment is quoted as under:

¶32

“30. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section

¶33

Page No.# 4/6

¶34

482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.”

¶35

12. I have given my anxious considerations to the submissions made by the learned counsels of both sides.

¶36

13. The allegations brought against the two petitioners in the complaint case are totally ambiguous. I have decided to agree with Mr. Ullah that at the time of trial of the charge sheeted case, the trial court would have the liberty to exercise its power under Section 319 of the Criminal Procedure if in the evidence any incriminating

¶37

Page No.# 5/6

¶38

materials appear against the present two petitioners. For that, a separate complaint case is unwarranted. Moreover, the allegations brought against the present two petitioners in the complaint case, are totally ambiguous.

¶39

14. Regarding the exercise of power under Section 482 of the CrPC, the guidelines have 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:

¶40

“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.

¶41

(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.

¶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 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.

¶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. (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.

¶46

(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

¶47

Page No.# 6/6

¶48

vengeance on the accused and with a view to spite him due to private and personal grudge.”

¶49

15. Reverting to the case in hand, this Court finds that the allegations against the present two petitioners are absolutely ambiguous. The complaint does not disclose a prima facie criminal case against these two petitioners. This Court is of the opinion that on the basis of the complaint filed by the respondent no.2, the present two petitioners are never going to be convicted of any offence. Thus, allowing the criminal proceedings against the present two petitioners would be nothing but an abuse of the process of the court.

¶50

16. The criminal petition is allowed. The criminal proceedings of the Complaint Case No.216/2023 pending in the court of the learned Judicial Magistrate 1^st Class, Kamrup(M) at Guwahati in respect of the petitioners Biswajit Debnath and Sahab Uddin Barbhuiya, are quashed and set aside.

¶51

The criminal petition is disposed of accordingly.

¶52

JUDGE

¶53

Comparing Assistant

Biswajit Debnath and Anr. v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Biswajit Debnath and Anr. 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

Mayur Gogoi Vs the State of Assam

Sri Mayur Gogoi Vs the State of Assam

MD Sukur Ali Vs the State of Assam and Anr.

Jomir Ali Vs the State of Assam and Anr.

Gauri Rajbongshi Vs the State of Assam

Surajit Dey Vs the State of Assam and 5 Ors.