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GAHC010023222019

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Pet. 122/2019

1:RAJEN GOHAIN
S/O. LT. SAMBHU NATH GOHAIN, VILL. TILAK DEKA ROAD, ITACHALI, P.S.
NAGAON SADAR, DIST. NAGAON, ASSAM.

VERSUS

1:THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM.

2:SMT. JUMONI BORA BHUYAN
W/O. SRI PIJUSH JYOTI BHUYAN
VILL. DEWRIGAON
P.S. NAGAON SADAR
DIST. NAGAON
ASSAM-782001

Advocate for the Petitioner : MR N DUTTA

Advocate for the Respondent : PP, ASSAM

BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM

ORDER

25.03.2019

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

(supra).

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/

506 IPC.

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.

JUDGE

Comparing Assistant