Gauhati High Court
Saiful Islam vs The State Of Assam And Anr on 12 June, 2025
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GAHC010118872025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./671/2025
SAIFUL ISLAM
S/O ABDUR RAHIM
VILL- TELIPARA,
P.S. MANKACHAR,
DIST. SOUTH SALMARA MANKACHAR ASSAM, PIN-783131
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM
2:BOBITA KHATUN @ BOBITA BEGUM
W/O SAIFUL ISLAM
VILL- TELIPARA
P.S. MANKACHAR
DIST. SOUTH SALMARA MANKACHAR
ASSAM
PIN-78313
Advocate for the Petitioner : MR. M ISLAM, MS A KHATUN
Advocate for the Respondent : PP, ASSAM, MR. M AHMED (R2)
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BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 12.06.2025
1. Heard learned counsel Mr. M Islam for the petitioner, X and learned
counsel Mr. M Ahmed, for the respondent No. 2, Y.
2. Heard Mr. B Sarma, learned Additional Public Prosecutor for the
respondent side.
3. The petitioner has filed this application under Section 528 of the BNSS,
2023 with prayer for quashing the entire proceedings of Special (P) Case No.
170/2024 arising out of Mancachar PS Case No. 80/2023 under Section 9/10/11 of the
Prohibition of Child Marriage Act, 2006, read with Section 6/17 of the POCSO Act.
4. It is submitted on behalf of the petitioner that the petitioner was a young
lad of 22 years of age when his marriage was solemnized with the victim. Now, both
the petitioner and the victim have attained majority and they are blessed with a son.
The victim is now 19 and half years old and the petitioner is 26 years old.
5. Mr. B Sarma, learned Additional Public Prosecutor for the respondent side
has raised serious objection stating that the victim was a minor, aged only 16 years,
and too young to get married when her marriage was solemnized with the petitioner.
Mr. B Sarma, learned Additional Public Prosecutor for the respondent side has raised
serious objection stating that this is not a case to be set-aside and quashed.
6. I have considered the submissions at the bar with circumspection. It is
submitted on behalf of both the sides i.e. the petitioner and the victim that they are
leading a happy married life and are blessed with a son. The victim is not willing to
proceed against her own husband. The victim has also submitted an affidavit cum
declaration marked as annexure 7 of the petition that she is not willing to proceed
against the petitioner. She has prayed for setting-aside and quashing the proceedings.
7. Learned counsel for the respondent No. 2 i.e. the victim has no objection if
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the proceedings are set-aside and quashed. Both the sides have relied on the decision
of the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604
wherein it has been observed that
“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.
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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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(v) 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.
(vi) 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.
(vii) 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.”
8. The petitioner has also relied on the decision of a co-ordinate Bench of this
Court, wherein, vide order dated 02.05.2025 in Criminal Petition No. 53 of 2025, it has
been observed that
“This Court is of the opinion that the ratio laid down in Bhajan Lal (supra), is
applicable in the present case. Since the so-called victim girl has come forward
to state that she has been living happily with her husband and she is now a
major. In such a circumstance, there is no possibility of conviction of anybody in
future. Thus, allowing such a criminal proceeding to continue before a Trial
Court would be nothing but an abuse of the process of the Court.”
9. The petitioner has also relied on a decision of this Court in Lohit Das and
others v. State of Assam reported in 2023 0 Supreme (GAU) 76 , wherein, it has been
held that
“(i) Here in this case, perusal of the record of the learned Court below reveals
that the petitioner No. 2 has already been charge sheeted under Section 366(A)
of the IPC. showing him absconder in the charge sheet. Indisputably, the
offence under Section 366(A) IPC is a non-compoundable offence under Section
320 Cr.PC. It also reveals from the petition that all the three petitioners have
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approached this Court for quashing of the proceeding of Gohpur P.S Case No
71/2020, under Section 366(A) of the IPC, as after attainment of majority by
the petitioner No.3, her marriage has solemnized with the petitioner No 2, as
per the Hindu rites and rituals and now they are living together as husband and
wife and leading a happy married life. Indisputably the dispute between
petitioner Nos. 1 and 3 with that of petitioner No.2 arises out of matrimonial
relationship of family dispute, and further, it appears that the parties have
resolved the entire dispute among themselves.
(ii) Since the matter has already been settled by the petitioners and since they
are not willing to pursue the matter further, and since the matter has arisen out
of matrimonial relationship or family dispute, this Court is of the view that end
of justice will be meted out if the petition is allowed. It is unlikely that in the
event of dismissing the petition, the petitioner No.3, who is now wife of the
petitioner No 2 would depose against him before the learned Court below and in
such event, further continuation of the proceeding of Gohpur PS Case No.
71/2020, corresponding to GR. Case No 83/2020 and PRC No. 102/2022 under
section 366(A) of the IPC would be an abuse of the process of the Court and it
would be an exercise in futility.
(iii) Under the facts and circumstances and also drawing premises from the
ratios, laid down in the Cases discussed hereinabove, this Court is inclined to
allow this petition, and accordingly, the same is allowed. Resultantly, the
proceeding of Gohpur PS. Case No. 71/2020, corresponding to G.R. Case No
83/2020 and PRC No. 102/2022, under section 366(A) of the IPC stands
quashed.”
10. In the instant case too, both the parties have amicably settled their dispute
as they are staying together as husband and wife. They are leading a happy married
life and are blessed with a son. Possibility of conviction, indeed, appears to be remote
and bleak as the victim will not give evidence against her own husband. Further
proceedings will be an abuse of the process of the Court.
11. In the wake of the following discussions, the proceedings of Special (P)
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Case No. 170/2024 is, hereby, set-aside and quashed.
12. In terms of the above observations, this applications stands disposed of.
JUDGE
Comparing Assistant