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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 122/2019
S/O. LT. SAMBHU NATH GOHAIN, VILL. TILAK DEKA ROAD, ITACHALI, P.S.
NAGAON SADAR, DIST. NAGAON, ASSAM.
1:THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM.
2:SMT. JUMONI BORA BHUYAN
W/O. SRI PIJUSH JYOTI BHUYAN
P.S. NAGAON SADAR
Advocate for the Petitioner : MR N DUTTA
Advocate for the Respondent : PP, ASSAM
HONOURABLE MR. JUSTICE SUMAN SHYAM
Heard Mr. N. Dutta, learned senior counsel appearing for the petitioner. I
have also heard N. K. Kalita, learned Additional Public Prosecutor, Assam,
appearing for the respondent No.1 as well as Mr. J. Chutia, learned counsel
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appearing for the respondent No.2.
This Criminal Petition has been filed with a prayer to quash the
proceeding being P.R.C. No.1781/2018 corresponding to GR No.6166/2018
pending in the court of learned Chief Judicial Magistrate, Nagaon, Assam as
well as the order dated 16.11.2018 rejecting the Final Report (FR) submitted by
the Police and the subsequent order dated 17.11.2018 taking cognizance of
offences under Sections 417/376/506 IPC against the petitioner.
It appears from the record that on 01.08.2018 the respondent No.2 had
lodged an F.I.R. before the Superintendent of Police, Nagaon making allegation
of sexual relationship of the petitioner with the informant and her sister-in-law. In
the said F.I.R., it has been mentioned that although the informant and her sister-
in-law had initially protested to the relationship, yet, they had remained silent
about it due to the promise of job made to them by the petitioner. Later on,
when the husband of the informant had circulated the matter in the social
media, the petitioner had threatened him with dire consequences.
Based on the F.I.R. dated 01.08.2018, Nagaon P.S. Case No.2592/2018 was
registered under Section 417/376/506 IPC. After completing the investigation ,
the police had submitted Final Report (FR) to which the informant did not raise
any objection. Notwithstanding the same, the learned trial Court had not only
rejected the F.R. but had also taken cognizance of the offences under Section
417/376/506 IPC against the petitioner.
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By referring to the materials available on record, Mr. Dutta submits that
the F.I.R. does not disclose any ingredient of Section 376 IPC. That apart, the
matter has been compromised by and between the parties whereafter, the
respondent No.2 had sworn affidavit categorically stating that the allegations
made against the petitioner in the F.I.R. dated 01.08.2018 are not correct and
that the F.I.R. was filed out of frustration and anger against the petitioner only to
teach him a lesson. The husband of the respondent No.2, Sri Pijush Jyoti Bhuyan,
has also sworn a separate affidavit dated 22.08.2018 whereby he has stated
that the petitioner was innocent and that there was no illegitimate relationship
between the petitioner and his wife or his sister.
By placing reliance on the decision of the Hon’ble Supreme Court in the
case of State of Haryana and others vs. Bhajan Lal and others reported in 1992
Supp (1) SCC 335 Mr. Dutta submits that even if the allegations made in the
F.I.R. are taken on the face value, even then, no offence under Section 376 IPC
is made out. The learned senior counsel submits that offences under Sections
417 and 506 of the IPC are compoundable in nature. Therefore, the learned trial
Court had committed manifest illegality in issuing the impugned orders dated
16.11.2018 and 17.11.2018 by failing to appreciate that there was no possibility
of conviction of the petitioner in this case.
Mr. J. Chutia, learned counsel for the respondent No.2, has invited the
attention of this Court to the affidavit dated 25.03.2019 filed by his client in this
Crl. Petition reiterating and affirming the stand taken by her in the affidavit
dated 23.08.2018 and submits that the matter has been compromised and
therefore, there is no evidence in this case to convict the petitioner.
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Similar is the stand taken by the learned Additional Public Prosecutor,
Assam, who submits that after recording the statements of the informant and
the victims, the Police had rightly submitted F.R. in this case.
I have considered the arguments advanced by the learned counsel for
both the parties and have gone through the materials available on record.
A plain reading of the F.I.R. dated 01.08.2018 leaves no room for doubt
that the same does not disclose any ingredients of an offence under Section
376 IPC. During the course of investigation, the Police had recorded the
statements of the informant, her husband and the victim. That apart the
statement of the accused/ petitioner had also been recorded. All of them had
denied the occurrence of the incident. Since there was no evidence to support
the charge, hence, the Police had submitted FR. Notwithstanding the same, the
learned court below had passed the order dated 16.11.2018 rejecting the Final
Report apparently on the ground that offence under Section 376 IPC is non-
compoundable in nature. Consequently, by the order dated 17.11.2018 the
learned Chief Judicial Magistrate, Nagaon, Assam had taken cognizance
under Sections 417/376/506 IPC.
In the case of Parbatbhai Aahir Vs Bhimsinhbhai Karmur and Others
reported in 2017(9) SCC 641, the Hon’ble Supreme Court has held that heinous
crimes such as rape, murder, dacoity cannot be compounded and therefore,
such proceedings cannot be quashed by invoking the jurisdiction under section
482 Cr. P.C. But at the same time, it is also to be noted herein that the scope
and ambit of the power of the High Court to quash a criminal proceeding in
exercise of jurisdiction under Section 482 of the Cr.P.C. has been firmly settled
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since the decision of the Apex Court in the case of Bhajan Lal and others
In the present case, the allegations mentioned in the FIR, even if taken
on the face value, in the opinion of this court, do not constitute any offence or
make out a case against the petitioner under section 376 IPC. Rather, the
allegations brought in the FIR could at best make out a case under section 417/
Section 320 of the Cr.P.C. lays down the offences which are
compoundable. An offence under sections 417 IPC is compoundable by the
person cheated and an offence under section 506 IPC is compoundable by the
person intimidated. In this case, as noted above, the victim and her husband
have sworn affidavits denying the occurrence of the incident. It is also apparent
from the materials on record that the matter has been compromised by and
between the parties. There is no order by the trial court to conduct any further
investigation in the matter. Therefore, having regard to the materials brought on
the record after the conclusion of the investigation by the police, this court is of
the view that there is no chance of conviction of the petitioner in this case.
Under such circumstances, denying the relief as prayed for by the petitioner
would amount to abuse of the process of law thereby resulting into serious
miscarriage of justice.
For the reasons stated above, I am of the un-hesitant opinion that
applying the ratio laid down by the Supreme Court in the case of Bhajan Lal
and others (supra) to the facts of this case, the present is a fit case for this Court
to invoke jurisdiction under Section 482
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Cr.P.C. and quash the criminal proceeding.
The orders dated 16.11.2018 and 17.11.2018 are, therefore, held to be
unsustainable in law and are accordingly set aside.
Consequently, the proceeding registered as P.R.C No.1781/2018 pending
in the court of Chief Judicial Magistrate, Nagaon, also stands quashed.
The Criminal Petition stands allowed.