Anam and 2 Ors. Vs the State of Assam and Anr.

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GAHC010012322026

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2026:GAU-AS:3634

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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./69/2026

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ANAM AND 2 ORS D/O ROSHAN ZAMEER KHAN ,

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R/O HOUSE NO 902/21, NARENDRA NAGAR, BEHIND GALI NO. 5, P.O. AND P.S. SONEPAT, DIST. SONEPAT, HARYANA 131001 PRESENTLY RESIDING AT SHAHID JAMAL 644, AURANGABAD, P.O. AND P.S. JANPAD, ETAWAH, UTTAR PRADESH 206001

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2: ROSHAN ZAMEER KHAN

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S/O NAMALUM ZAMEER KHAN

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R/O HOUSE NO 902/21 NARENDRA NAGAR BEHIND GALI NO. 5 P.O. AND P.S. SONEPAT DIST. SONEPAT HARYANA 131001

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3: DR. GULSHAN KHAN D/O ROSHAN ZAMEER KHAN

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R/O HOUSE NO 902/2024 NARENDRA NAGAR BEHIND GALI NO. 5 P.O. AND P.S. SONEPAT DIST. SONEPAT HARYANA 13100

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VERSUS

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

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2:MD. SHARIQ

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ASSTT. MANAGER (OPPERATION SRB S/O MOHD. INAM

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RESIDENT OF SHEIKHAN PO AND PS SHERKOT DIST BIJNOR UTTAR PRADESH 246747 PRESENTLY RESIDING AT FLAT NO. B 605/606 ROYAL AWAS LOTABARI PO AND PS BOKAKHAT DIST GOLAGHAT ASSAM 785612 OFFICE OF NUMALIGARH REFINERY LIMITED GOLAGHAT PS TELGRAM ASSAM 78569

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Advocate for the Petitioner : A NEWAR, MR GAURAV R DUTTA,MR A R BAROOAH

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Advocate for the Respondent : PP, ASSAM, MR. D J BORO (R-2),MR. M. K. BORAH (R-2),MR. J K GOSWAMI (R-2)

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BEFORE

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HONOURABLE MRS. JUSTICE MITALI THAKURIA

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ORDER

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Date : 12-03-2026

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Heard Mr. A.R. Barooah, the learned counsel for the petitioners. Also heard Mr. J.K. Goswami, the learned counsel for respondent no. 2 and Mr. B. Sharma, the learned Addl. PP appearing on behalf of State respondent no. 1.

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2. This is an application u/s 528 BNSS for quashing of the C.R. Case No. 01/2025 pending before the learned SDJM (M), Bokakhat u/s 296/303(2)/351 BNS.

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3. In brief the case of the petitioners is that the petitioner no. 1 and the

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respondent no. 2 got married as per Muslim customs on 10.10.2024 and started their conjugal life. At the time of marriage, the family of the petitioner no. 1 had given sufficient gold and silver ornaments to the respondent no. 2. The Mehar was fixed at Rs. 5 lakhs. But, in spite of streedhan/dowry given at the time of marriage, the respondent no. 2 and his family members demanded additional amount of Rs. 20 lakhs from the family members of the petitioner no. 1. As the family of the petitioner no. 1 did not fulfill the additional demand of dowry, the respondent no. 2 and his family stared misbehaving with her and also inflicted mental and physical torture on her. But, the petitioner no. 1 bear all the torture inflicted on her with the hope that everything will be fine in future. Thereafter, the respondent no. 2 got posted as Assistant Manager in Numaligarh Refinery at Golaghat and the petitioner no. 1 also came with the respondent no. 2 to his place of posting. But, thereafter also the respondent no. 2 started torturing her mentally and physically and on 26.11.2024 after arrival of his father i.e. the petitioner no. 2, the respondent no. 2 snatched all her jewellary and sent her home with the petitioner no. 2. Thereafter the petitioner no. 1 had lodged a D.V. case u/s 12 of the D.V. Act which is pending before the learned Additional CJM No. 2, Etawah. A judgment was also passed in the said D.V. case on 10.11.2025 whereby the respondent no. 2 was directed to provide necessary accommodation to petitioner no. 1 and also to pay a sum of Rs. 4,000/- to petitioner no. 1 on 10^th day of every month. Apart from that Rs. 50,000/- was also asked to pay by the respondent no. 2 towards compensation. The petitioner no. 1 also filed a petition u/s 144 BNSS on 05.02.2025 before the Additional Chief Judge, Family Court, Etawah wherein a notice was also issued to the respondent no. 2. But, he did not appear and the case proceeded ex-parte. In the said case also the respondent no. 2 was directed to pay Rs. 6,000/- per

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month from the date of filing of the petition u/s 144 BNSS. In the meantime, the respondent no. 2 also filed a complaint case before the Court of learned Additional CJM, Bijnor u/s 308(1)/318(2)/318(4) BNSS with the allegation of extortion and cheating against the petitioner no. 1. Apart from that, the respondent no. 2 also filed a divorce petition seeking dissolution of marriage before the Court of learned Additional Judge, Family Court, Bijnor, which is still pending before the Principal Judge, Family Court, Bijnor.

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4. Thereafter, the respondent no. 2 filed a complaint case on 10.01.2025 u/s 296/303(2) and 351 BNS before the Court of learned SDJM(M), Bokakhat which is registered as C.R. Case No. 01/2025. In the said complaint case, it has been alleged that the petitioner no. 1 was very aggressive towards the respondent no. 2 and also alleged that the petitioner no. 2 had come to Bokakhat in the residence of respondent no. 2 without any information. It is further alleged that on 04.01.2025, the respondent no. 2 discovered that an amount of Rs. 1 lakh along with some gold ornaments were missing and on enquiry the petitioner no. 1 had started abusing verbally in slang language to the respondent no. 2. The learned SDJM(M) issued pre-cognizance notice u/s 223(1) of BNSS on 18.01.2025 and the said notice was served on the petitioners at Etawah whereby the petitioners were asked to appear before the learned SDJM(M), Bokakhat on 06.03.2025. But, as the petitioners could not appear before the learned Trial Court below on the next date i.e. on 13.03.2025, the cognizance was taken against all the petitioners u/s 296/303(2) and 351 of BNS and process were issued accordingly.

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5. Mr. Barooah, the learned counsel for the petitioners further submitted that from the facts and circumstances of the case it prima facie reveals that the aforesaid complaint i.e. C.R. Case No. 01/2025 is false, concocted and the same

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has been lodged only with a view to cause prejudice to the petitioners. It is only counter blast against the D.V. Act and case of maintenance filed by the present petitioners. In view of this, the present petition has been instituted for quashing of the entire criminal proceeding pending before the learned SDJM(M), Bokakhat u/s 296/303(2)/351 BNS.

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6. He further submitted that no criminal case has been made out under the said sections of law. The learned SDJM(M), Bokakhat erred in law as well as in facts while taking cognizance against the present petitioners. The statement made in the complaint itself reveals that the amount which is alleged to have been missing along with the gold ornaments were given at the time of the marriage of the petitioner no. 1 as a streedhan and she has the exclusive right over the said property which were given only at the time of her marriage. It is a settled law that the property gifted to the wife before the marriage, at the time of marriage or at the time of giving farewell or thereafter are the streedhan properties and the daughter has the absolute right over the properties given to her and dispose of at her own pleasure. He further submitted that there are lots of contradictions of the CWs who were examined at the time of taking cognizance and the statement of the witnesses are also inconsistent and on the basis of which the cognizance has been taken by the learned Trial Court below. From the statement made in the complaint itself it is seen that the case is filed by the petitioner no. 1 under the D.V. Act and for the maintenance only to avoid providing maintenance and the accommodation to the present petitioner. The case has been lodged with some false and concocted allegations and hence the entire criminal proceeding pending before the Court of learned SDJM(M), Bokakhat is liable to the set aside and quash.

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7. Citing the judgment of Hon’ble Apex Court passed in case of State of

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Haryana v. Bhajan Lal, reported in 1992 Supple. 1 SCC 335, it is submitted by Mr. Barooah that the case is exclusively matrimonial dispute and from the complaint itself it reveals that it has been filed with a mala fide intention with an ulterior motive for wreaking vengeance on the accused with a view to spite him due to private and personal grudge. He basically relied on the para 102 of the said judgment wherein the Hon’ble Apex Court had given some guideline for quashing a proceeding. Para 102 of the said 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 extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure 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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(a) 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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(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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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(c) 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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(d) 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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(e) 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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(f) 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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(g) 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. He further cited another decision of Hon’ble Supreme Court reported in (2000) 3 SCC 693 [G.V. Rao v. L.H.V. Prasad & Others] wherein also it has been expressed the view by the Hon’ble Apex Court in para 12 of the said judgment that – “the Court should not encourage the matrimonial litigations so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement.”

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9. Accordingly, it is submitted by Mr. Barooah that it is a fit case wherein the proceeding pending before the learned SDJM(M), Bokakhat can be set aside and quashed by invoking the inherent power u/s 528 BNSS.

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10. Mr. J. K. Goswami, the learned counsel for respondent no. 2 submitted in this regard that the case is filed at the pre-matured stage and the petitioners will get the opportunity for hearing for their discharge at the time of framing of charge. But, prima faice there are sufficient materials brought by the respondent no. 2 in his complaint case wherein he brought the allegation of mental and physical torture on him and that apart he brought the allegation of missing of some gold ornaments along with cash amount of Rs. 1 lakh from his custody. He further submitted that he not only brought about the mental torture and using of abusive languages by the petitioners but, he also brought the allegation of physical torture by the petitioner no. 1.

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11. Mr. Goswami further submitted that before taking the cognizance, the petitioners were served with the pre-cognizance notices and due to their absence only the statement of the CWs were recorded by the learned Trial Court below. He further submitted that the respondent no. 2 while giving his

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statement as CW1 has clearly brought the allegation of physical as well as mental torture on him and it is also alleged that the petitioner no. 1 also used to slap him regularly whenever she gets angry. Apart from that, he also brought the allegation of missing of some valuable items including the gold ornaments and cash amount of Rs. 1 lakh from his custody after visit of the other petitioners to his house.

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12. Mr. Goswami accordingly submitted that before taking cognizance of this case, the learned Court below has issued the pre-cognizance notice as stated above. But, despite of the receipt of pre-cognizance notices, the petitioners did not appear before the Court for which the statement of CWs were recorded by the learned Court below and on the basis of which cognizance was taken finding prima facie materials against all the petitioners. Accordingly, Mr. Goswami submitted that the learned Trial Court below had rightly took the cognizance in this case against the petitioners and hence interference of this Court is not necessary and the petition is liable to be dismissed. More so, all the petitioners will also get an opportunity for praying for discharge at the time of charge hearing and thus the petition is also filed at the pre-matured stage and liable to be dismissed.

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13. Hearing the submissions made by learned counsel for both sides, I have also perused the case record. It is seen that the petitioner no. 1 also instituted a D.V. proceeding against the present respondent no. 2, which is still pending. The petitioner no. 1 also brought the allegation of mental and physical torture against the respondent no. 1, while they were staying together after their marriage. From the record it is seen that in the D.V. proceeding the respondent no. 2 was also directed to provide necessary accommodation and also to pay a sum of Rs. 4,000/- to the petitioner along with a compensation amount of Rs.

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50,000/- and thereafter a maintenance case was also filed by the petitioner no. 1 seeking maintenance wherein also the respondent no. 2 was directed to pay maintenance to the tune of Rs. 6,000/- per month. Accordingly, it is the case of the petitioners that the respondent no. 2 had instituted this complaint case only as a counter blast with some false and concocted allegation. But, on perusal of the case record it is seen that prima facie he brought some allegations of mental and physical torture on the petitioners as well as he also brought the allegation of theft stating that an amount of Rs. 1 lakh as well as some gold ornaments were already missing from his house. Now at the time of trial only it may come out as to whether those gold ornaments were given to the petitioner no. 1 at the time of her marriage as a streedhan or it is the property belong to the respondent no. 2 which were stated to be missing from his premises. In the same time, it is also seen that before taking cognizance the learned Trial Court below has issued pre-cognizance notices giving an opportunity of hearing to the petitioners. But, in spite of receipt of the notices, the petitioners did not appear before the learned Trial Court below. Rather, they furnished a written reply in the Hindi language. But, at the time of taking cognizance of the case, the learned Trial Court below also considered the written reply and thereafter only the statement of the CWs were recorded. After recording of the statement, a prima facie case was found against the petitioners and for which the cognizance was taken against the present petitioners. Thus, it is seen that no irregularity or illegality has been committed by the learned Trial Court below before taking cognizance of this case and the cognizance was taken only finding a prima facie case against the petitioners.

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14. It is an admitted fact that the dispute is of matrimonial in nature but the respondent had brought the allegation of mental and physical torture as well as

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brought the allegation of theft against the present petitioners. Thus, from the statement made by CWs as well as from the complaint petition it is seen that there is a prima facie case against the petitioners, on the basis of which the cognizance was taken. It is not a case that there is no prima facie materials to constitute any offence against the present petitioners to exercise the power u/s 528 BNSS as held by the Hon’ble Apex Court in case of Bhajan Lal (supra). In the same time though the dispute is between the husband and wife and relative of the wife but, the allegations which were brought against the present petitioners cannot be considered solely as a matrimonial dispute for quashing of the petition, wherein the mental and physical torture on the respondent no. 2 is brought in the petition, apart from the allegation of commission of theft is also brought against the present petitioners.

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15. It is the case of the petitioners that the complaint was instituted only with a malafide intention or with an ulterior motive for wrecking the vengeance on the accused with a view to spite them due to private and personal grudge. It is a fact that there are several disputes going on between the parties, wherein the petitioner no. 1 also brought the allegation of mental and physical torture on her and accordingly she instituted two cases, one under D.V. Act and another for seeking maintenance wherein the respondent no. 2 was directed to grant maintenance to her. But, only for that reason the allegations which were brought in the present petition cannot be denied or it cannot be held that those were brought in the petition only with a malafide intention due to private and personal grudge. Further while disposing the application u/s 528 BNSS, it is not the duty of the Court to held a mini trial or to consider all the pros and cons of the case, when there is a prima facie materials found against the present petitioners, on the basis of which the cognizance was taken by the learned Trial

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Court below. However, the parties can approach the learned Trial Court below with an application for their discharge and which event, the learned Trial Court below may pass the appropriate order to that regard. But, considering the entire aspects of the case, this Court is of the opinion that it is not a fit case to quash the entire criminal proceeding against the petitioners by invoking the inherent power u/s 528 BNSS.

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16. in view of this, the petition seeking for quashing of the entire criminal proceeding in C.R. Case No. 1/2025 pending before the learned SDJM (M), Bokakhat u/s 296/303(2)/351 BNS invoking the power u/s 528 BNSS is hereby stands rejected.

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Anam and 2 Ors. v. the State of Assam and Anr.

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Anam and 2 Ors. v. the State of Assam and Anr.

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