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2021 Supreme(Gau) 578
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ACHINTYA MALLA BUJOR BARUA, J.
Ghan Shyam Das S/o Late Soneswar Das – Petitioner
Versus
The State of Assam and Another – Respondents
Crl. Pet. No. 1418 of 2019
Decided On : 08-12-2021
Advocate Appeared:
For the Petitioner: Mr. T. Deuri.
Point of law: Further provide that quashing of FIR in respect of petitioner is a conditional quashing subject to result of further investigation and if after further investigation materials against any person including, are found, it will be open for Investigating Authority to proceed as per law and even against petitioner
Headnote:
Code of Criminal Procedure, 1973 - Section 164, 482 - Indian Penal Code, 1860 - Section 376(2)(i), 354-A, 354 B, 506 - Protection of Children from Sexual Offences Act, 2012 - Section 6 - General Clause Act, 1897 - Section 27 - Punishment for rape - Punishment of Sexual Harassment - Punishment for assault of criminal force - Whether cognizable offence is discernable therein against petitioner.
Finding of the court:
Although this is a petition under Section 482 of Cr.P.C. for quashing of FIR, where an FIR can be quashed only upon the FIR not disclosing a cognizable offence, but without it being considered to be a reason to arrive at any conclusion, we also take note of provision of order in Bail Application wherein Court after perusal of case diary had taken note of statement of victim girl under Section 164 of Cr.P.C. that offence was committed upon her by some person other than petitioner - Although said information cannot be sole basis to quash FIR but considering aspect as indicated above that FIR does not disclose any offence against petitioner, information can also be taken note of as a supporting material for purpose.
Result: Criminal Petition stands allowed
JUDGMENT :
ACHINTYA MALLA BUJOR BARUA, J.
1. Heard Mr. K.N. Choudhury, the learned senior counsel for the petitioner. Also heard Mr. D. Das, the learned Additional Public Prosecutor for the respondent no. 1. None appears for the respondent no. 2 being Miguel Queah.
2. Office note of 06.01.2021 shows that service in respect of respondent no. 2 be deemed to have been served under Section 27 of the General Clause Act, 1897. By the subsequent order of 18.01.2021, by taking note of the said office note, service was accepted to be complete.
3. The respondent no. 2 Miguel Queah, had lodged an FIR before the Officer-in-Charge of Satgaon Police Station which was registered as Satgaon Police Station Case No. 125/2019 under Section 376(2)(i)/354-A of the Indian Penal Code read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short the POSCO Act, 2012).
4. The said FIR is extracted as below:
“Ref: UTSAH/Case/CSA/2019/5
Date: 25.04.2019
To,
The OC, Satgaon
Police Station
Guwahati
Assam
Subject: F.I.R. against Mr. Ghanashyam Das (Ph 94359-10574) for Aggravated Penetrative Sexual Assault.
Dear Sir,
This is to bring to your notice that a girl child named Ms. Riba Das had given birth to a child at Apollo Hospital in Guwahati dated 08.04.2019. Ms. Riba Das and the new born child have been transferred to the to the State Home for Girls, Jalukbari for rehabilitation. The CWC, Kamrup (M), has referred the case to me for necessary action (Please find the CWC order copy enclosed).
The report of the Counsellor of the State Home of Girls, Jalukbari, Ms. Riba Das had been repeatedly sexually assaulted by a religious quack (witch doctor) name Ms. Ghanashyam Das, in the Narangi Area of Guwahati. Ms. Riba Das mentioned that she had been taken there for treatment by her employer Ms. Padmaja Bujarbarua (Mobile 94354 07926). Ms Riba Das was working at the place of Ms. Padmaja Bujarbarua, r/o House No. 42, SS Road, behind Silpukhuri. (Please find Counsellor’s report attached).
According to the information provided by Ms. Padmaja Bujarbarua, Mr. Ghanashyam Das lives in Bishnu Nagar, House No. 2, the lane next to Satgaon Road, whenever he is in Guwahati. She provided the following sketch map of the Mr. Ghanashyam Das rented residence here in Guwahati, Ms. Bujarbarua also mentioned that the Baba comes every Thursday to Guwahati, from somewhere near Tangla side.
This case clearly falls under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
Also the following sections from the IPC will apply to this case:
1. Section 376 (Punishment for rape of a woman under 16 years of age).
2. Section 354A (Punishment of Sexual Harassment).
3. Section 354 B (Punishment for assault of criminal force).
4. Section 506 (Punishment for criminal intimidation).
Anticipating support and action.
Best regards
Sd/-
(Illegible)
Miguel Quresh
Support Person (POCSO), CWC
Kamrup (M)
Executive Director
UTSAH
Guwahati
Assam
Ph: 8011003023
0361-2656666 (L)
Father Name and Age (For FIR Purposes): Mr. B.M. Queah, Age 62
Address:
5B, Block A
Subansiri Apts
Government Press Road
Bamunimaidam
Guwahati-781021
Age: 33
Received and registered vide Satgaon P.S. Case No. 125/19 u/s 376(2)(i)/354-A IPC and 6 of POCSO Act, 2012. SI (P) H.J. Lahan will investigate the case.
Sd/-
(Badrul Islam)
INSPECTOR
OFFICER-IN-CHARGE
SATGAON POLICE STATION
GUWAHATI.”
5. Upon registration of the Satgaon P.S. Case No. 125/2019, investigations were made and the petitioner was arrested in connection thereof. Being aggrieved, Bail Application No. 1056/2019 was instituted which was given a final consideration by the order dated 24.06.2019 wherein in relevant paragraph it was observed as extracted as below:
“The allegation against the petitioner was that of committing rape. Case diary produced today shows that the statement of the victim has already been recorded under Section 164 Cr.P.C. wherein, the victim has clearly stated that the offence was committed by another person and not the present petitioner. Apparently
