IMPORTANT POINT
Cognizance of offence – Magistrate, while exercising his powers under Section 190 Cr.P.C., is not bound to accept final report of I.O. – However, if Magistrate disagrees with finding of I.O., least that is expected of him is to give reasons.

JUDGMENT :

B.R. GAVAI, J.

1. Leave granted.

2. The appellant has approached this Court being aggrieved by the order dated 22nd August 2022 passed by the learned Single Judge of the Gauhati High Court, dismissing the application filed by the appellant under Section 482 of the Criminal Procedure Code, 1973 (for short, “Cr.P.C.”) for quashing of criminal proceedings under Sections 376/506 of the Indian Penal Code, 1860 (for short, ‘IPC’) so also for quashing of the order dated 4th July 2017 passed by the learned Magistrate for taking cognizance under Section 376/506 of IPC.

3. The facts, giving rise to the present appeal, are thus:-

3.1 On 4th December 2016, the prosecutrix lodged a First Information Report (for short, “FIR”) before the Bharalumukh Police Station, District Kamrup (M), Guwahati, alleging therein that when she was fifteen years of age, the appellant herein committed rape on her and as a result of which she gave birth to a child, namely, Jasim Ahmed Garodia on 7th April 1983.

3.2 After the FIR was lodged, final report came to be filed. However, the learned Magistrate, after considering the said final report, rejected the same and directed that the cognizance be taken on the basis of the police report. Being aggrieved thereby, the appellant filed a petition under Section 482 Cr.P.C. before the High Court, which was rejected vide impugned order. Hence, the present appeal.

4. We have heard Mr. Ibad Mushtaq, learned counsel appearing for the appellant, Ms. Diksha Rai, learned counsel appearing for the State and Ms. S. Janani, learned counsel appearing for the de facto complainant.

5. Mr. Mushtaq, learned counsel appearing for the appellant, submits that the present case is nothing else but an abuse of process of law. The FIR was filed after 34 years only in order to blackmail the appellant herein. He therefore submits that the order passed by the learned Magistrate dated 4th July 2017 for taking cognizance is not sustainable in law.

6. Ms. Diksha Rai, learned counsel appearing for the State and Ms. S. Janani, learned counsel appearing for the de facto complainant, vehemently opposed the present appeal.

7. Learned counsel for the complainant submitted that merely because there is a delay of 34 years in lodging the FIR, the same cannot be a ground for quashing of the proceedings. She submits that prima facie the statement of the prosecutrix has to be taken on face value. It is submitted that since the de facto complainant stated in the FIR that she was a minor at the time of the commission of offence, even if it is said to be consensual, the offence under Section 376 IPC would be made out.

8. After completion of the investigation, the Investigating Officer (for short, “I.O.”) filed the final report, which reads as under:-

“The brief of the final report is that on 04.12.2016 the informant lodged an FIR before the Police Station and informed that in the year 1982 she was raped by Suresh Garodia and as a result of which on 07.04.1983 a male child, Jasim Ahmed Garodia was born and further the accused coerced her and threatened the informant not to lodge FIR. The investigation was done on receipt of the FIR.

During the investigation the statement of informant and her son Jasim Ahmed Garodia and the statement of accused was recorded. The statement under Section 164 Cr.P.C. of informant and her son was recorded. The blood sample of all the three persons were collected and sent for ossification test at F.S.L. Kolkata the report of the same was collected. During investigation it was found that Jasin Ahmed Garodia is the son of Suresh Garodia. It is further found during investigation that Suresh Garodia even provided cash money and other facilities as his son. Due to greed of property of Suresh Garodia, his son Jasim Ahmed Garodia with the aid of his mother Sabina Ahmed lodged this FIR after a period of 34 (thirty four) long years. Due to property dispute between Suresh Garodia and Jasim Ahmed Garodia this case has been lodged. And I pray befor