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Sahidul Alom @ Sahidul Islam vs The State Of Assam And Anr on 18 September, 2019

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GAHC010059222017

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

Case No. : Crl.Pet. 1028/2017

1:SAHIDUL ALOM @ SAHIDUL ISLAM
S/O MD. ABDUS SALAM VILL- HABLEKHA P.O. and P.S. HAJO DIST.
KAMRUP R, ASSAM

VERSUS

1:THE STATE OF ASSAM and ANR.
ASSAM

2:MISS. SANIWARA BEGUM
D/O MD. SAHEB ALI VILL- HABLEKHA P.S. HAJO DIST. KAMRUP R
ASSAM PIN – 788709

Advocate for the Petitioner : MR.A AHMED

Advocate for the Respondent : MR J P KACHARI

BEFORE
HON’BLE MR. JUSTICE AJIT BORTHAKUR
18.09.2019
Heard Mr. A Ahmed, learned counsel for the petitioner. Also heard Mr. NK Kalita, learned
Additional Public Prosecutor, Assam, appearing for the State respondent No.1 and Mr. JP
Kachari, learned counsel appearing for the respondent No.2.

By this petition filed under Section 482 CrPC, the petitioner has prayed for setting aside
and quashing the criminal proceeding in Sessions Case No.451/2014 arising out of Hajo PS
Case No.216/2012 registered under Sections 376/Section493/Section448/Section506 IPC and the charge-sheet
being CS No.206/2012 dated 31.10.2012.

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The facts of the case in brief is that the respondent No.2/victim lodged an FIR on
4.8.2012 before the Officer-in-Charge of Hajo Police Station inter alia alleging that she had
developed love affair with the accused petitioner about one year back and the victim having
been induced by the accused petitioner with a promise to marry her, had committed sexual
intercourse with her for which she became pregnant. On being informed, the accused
petitioner assured the victim of marrying her and the parents of the accused petitioner also
assured her of settling the matter. But, on 3.8.2012, at about 8-30 PM, the petitioner along
with his parents entered into her house armed with sharp weapons like dao, dagger etc. and
attempted to kill the victim and her family members. However, they could manage to escape
unhurt. The aforesaid FIR was registered as stated hereinabove. After completion of the
investigation, police submitted Charge-sheet vide CS No.206/2012 under Sections 376/Section493
IPC and presently, the case being Sessions Case No.451/2014 is pending before the learned
Sessions Judge, Kamrup, Amingaon and the learned Sessions Judge framed charge under
Section 376 IPC against the petitioner and presently, the case is at the evidence stage.

Mr. Ahmed, learned counsel for the petitioner, submits that both the petitioner and the
respondent No.2 have entered into marital tie in the first part of 2019 and that the FIR was
lodged due to misunderstanding between them which has been amicably settled by now
outside the Court. Therefore, Mr. Ahmed submits that it will be an abuse of process of the
Court if the criminal proceeding is allowed to be continued against the petitioner.

Mr. JP Kachari, learned counsel for the respondent No.2/victim has conceded to the
above submission made by Mr. A Ahmed, learned counsel for the petitioner.

Mr. NK Kalita, learned Additional Public Prosecutor, submits that out of 11 witnesses
cited in the charge-sheet, 7 witnesses have already been examined. Mr. Kalita submits that in
view of the judgment of the Hon’ble Supreme Court rendered in State of Madhya Pradesh Vs.
Laxmi Narayan and others, reported in (2019) 5 SCC 688, the offence under Section 376 IPC
being categorized as heinous offence, the case cannot be compromised attributing the
occurrence to misunderstanding as stated by the petitioner and the learned counsel for the
respondent No.2/victim.

In paragraph 13 of the judgment in Laxmi Narayan (supra), the Hon’ble Supreme Court
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held as hereinbelow extracted;

“13. Considering the law on the point and the other decisions of this Court on the point,
referred to hereinabove, it is observed and held as under:

i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for
the non-compoundable offences under Section 320 of the Code can be exercised having
overwhelmingly and predominantly the civil character, particularly those arising out of commercial
transactions or arising out of matrimonial relationship or family disputes and when the parties
have resolved the entire dispute amongst themselves;

ii) such power is not to be exercised in those prosecutions which involved heinous and serious
offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not
private in nature and have a serious impact on society;

iii) similarly, such power is not to be exercised for the offences under the special statutes
like SectionPrevention of Corruption Act or the offences committed by public servants while
working in that capacity are not to be quashed merely on the basis of compromise
between the victim and the offender;

iv) offences under Section 307 IPC and the SectionArms Act etc. would fall in the category of
heinous and serious offences and therefore are to be treated as crime against the
society and not against the individual alone, and therefore, the criminal proceedings for
the offence under Section 307 IPC and/or the SectionArms Act etc. which have a serious impact
on the society cannot be quashed in exercise of powers under Section 482 of the Code,
on the ground that the parties have resolved their entire dispute amongst themselves.
However, the High Court would not rest its decision merely because there is a mention of
Section 307 IPC in the FIR or the charge is framed under this provision. It would be
open to the High Court to examine as to whether incorporation of Section 307 IPC is
there for the sake of it or the prosecution has collected sufficient evidence, which if
proved, would lead to framing the charge under Section 307 IPC. For this purpose, it
would be open to the High Court to go by the nature of injury sustained, whether such
injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc.
However, such an exercise by the High Court would be permissible only after the
evidence is collected after investigation and the charge sheet is filed/charge is framed
and/or during the trial. Such exercise is not permissible when the matter is still under
investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the
decision of this Court in the case of Narinder Singh (supra) should be read harmoniously
and to be read as a whole and in the circumstances stated hereinabove;

v) while exercising the power under Section 482 of the Code to quash the criminal
proceedings in respect of non-compoundable offences, which are private in nature and
do not have a serious impact on society, on the ground that there is a
settlement/compromise between the victim and the offender, the High Court is required
to consider the antecedents of the accused; the conduct of the accused, namely,
whether the accused was absconding and why he was absconding, how he had
managed with the complainant to enter into a compromise etc.
Mr. Kalita has also placed reliance on the case of State of Madhya Pradesh Vs. Dhruv
Gurjar and another, reported in (2019) 5 SCC 570 wherein the Hon’ble Supreme Court at
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paragraphs 16.3 and 16.4 has held as follows;

“16.3……….

29.7. While deciding whether to exercise its power under Section 482 of the
Code or not, timings of settlement play a crucial role. Those cases where the
settlement is arrived at immediately after the alleged commission of offence and
the matter is still under investigation, the High Court may be liberal in accepting
the settlement to quash the criminal proceedings/investigation. It is because of
the reason that at this stage the investigation is still on and even the charge-sheet
has not been filed. Likewise, those cases where the charge is framed but the
evidence is yet to start or the evidence is still at infancy stage, the High Court can
show benevolence in exercising its powers favourably, but after prima facie
assessment of the circumstances/material mentioned above. On the other hand,
where the prosecution evidence is almost complete or after the conclusion of the
evidence the matter is at the stage of argument, normally the High Court should
refrain from exercising its power under Section 482 of the Code, as in such cases
the trial court would be in a position to decide the case finally on merits and to
come to a conclusion as to whether the offence under Section 307 IPC is
committed or not. Similarly, in those cases where the conviction is already
recorded by the trial court and the matter is at the appellate stage before the High
Court, mere compromise between the parties would not be a ground to accept the
same resulting in acquittal of the offender who has already been convicted by the
trial court. Here charge is proved under Section 307 IPC and conviction is already
recorded of a heinous crime and, therefore, there is no question of sparing a
convict found guilty of such a crime.

16.4………….

……………

(6) In the exercise of the power under Section 482 and while dealing with a
plea that the dispute has been settled, the High Court must have due regard to
the nature and gravity of the offence. Heinous and serious offences involving
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mental depravity or offences such as murder, rape and dacoity cannot
appropriately be quashed though the victim or the family of the victim have
settled the dispute. Such offences are, truly speaking, not private in nature but
have a serious impact upon society. The decision to continue with the trial in such
cases is founded on the overriding element of public interest in punishing persons
for serious offences.”

Mr. Kalita, therefore, submits that in the light of the judgments of the Hon’ble Supreme
Court as mentioned above and as witnesses have already been examined by the learned trial
Court, the proceeding in Sessions Case No.451/2014 may not be quashed and the petitioner
may be directed to face the trial.

Upon hearing the learned counsel for both the sides and on consideration of the
averments made in the petition as well as the documents annexed thereto, the amicable
settlement of the dispute between the parties cannot be accepted since no copy of deed of
compromise is annexed to the petition but, only affidavit is filed by the respondent
No.2/victim and the alleged offence being heinous in nature.

Therefore, this Court is of the opinion that the alleged offence being heinous in nature
having deep impact on the society, in the light of the aforementioned judgments of the
Hon’ble Supreme Court, the criminal proceeding in Sessions Case No.451/2014 cannot be set
aside and quashed.

Accordingly, this criminal petition stands dismissed.

JUDGE

Comparing Assistant

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