THE GAUHATI HIGH COURT v. THE STATE OF ASSAM & Anr.

Advocate for the Petitioner : MR. R DE Advocate for the Respondent : PP, ASSAM Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

10.05.2022 ORDER Heard Shri R De, learned counsel for the petitioners, who has filed this application under Section 482 of the Cr.PC in respect of a Charge Sheet No. 290/2021, dated 16.11.2021 arising out of Dergaon PS Case No. 366/2021 under Sections 302/376 of the IPC read with Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Section 75 of the Juvenile Justice (Care and Protection) Act, 2015 in so far as the petitioner no. 1 is concerned and Section 302 of the IPC read with Section 75 of the Juvenile Justice (Care and Protection) Act, 2015 in so far as the petitioner no. 2 is concerned (Sessions Spl. POCSO No. 78/2021, corresponding to GR Case No.1544/2021).

2. Pursuant to the orders of this Court, scanned copies of the LCRs have been transmitted to this Court.

3. Shri De, learned counsel for the petitioners submits that both the petitioners are government servants and work in the police department. Though the ejahar dated

05.09.2021 contains serious allegations in respect of the sister of the informant who had died in an unusual circumstance, the learned counsel has submitted that the allegations made in the FIR are not consistent with the post-mortem report which does not indicate any physical injuries on the body of the deceased. Shri De, learned counsel further submits that Section 4 of the POCSO also may not be applicable under the facts and circumstances of the case and therefore, the petitioners may be protected from facing the ordeal of the trial for no fault of theirs.

4. On the other hand, Shri BB Gogoi, learned Addl. PP, Assam submits that the Page No.# 3/5 prayer made appears to be pre-mature as only the charge sheet has been filed and the petitioners would have adequate scope before the learned Trial Court to make out a case of discharge at the time of framing of charges. The learned Addl. PP further submits that the grounds projected are matters of trial and at this stage, any observation made by this Court would cause prejudice to either of the parties.

5. After hearing the parties and on perusal of the records, this Court finds force in the submission of Shri Gogoi, learned Addl. PP.

6. From a reading of the ejahar dated 05.09.2021, one cannot say that no offence is made out and rather, the offence appears to be a very serious one where a minor girl has lost her life and there is allegation of physical assault as well as sexual harassment and accordingly, appropriate sections of IPC and POCSO were invoked while registering the case as Tezpur PS Case No. 1888/2021 which was later registered as Dergaon PS Case No. 366/2021. Even assuming that the version in the FIR may not be consistent with the other materials, that itself will not give jurisdiction and power to this Court to interfere with the charge sheet which has been laid after completion of the investigation. In fact, this Court is of the opinion that filing of the charge sheet would indicate that there are sufficient materials against the petitioners which are enough for conviction. This Court is also of the opinion that the petitioners would be at liberty to make out a case for discharge at the time of framing of the charges by the learned Trial Court and that stage is yet to come.

7. It is a settled law that an FIR need not be an encyclopedia or elaborate description of all the facts and only the relevant facts need to be put so as to put the criminal law into motion. In this connection, one may gainfully refer to a recent decision of the Hon’ble Supreme Court in the case of Musstt Rehana Begum Vs. State Of Assam & Anr. in Criminal Appeal No 118 of 2022 decided on 21-01- Page No.# 4/5 2022 wherein the Hon’ble Supreme Court has reiterated the law laid down in the case of (2021) SCC Online SC 315 (M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors). The relevant excerpt is quoted hereinbelow: "23(xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/ FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;"

8. The Hon’ble Supreme Court has been consistently laying down that the powers conferred by Section 482 of the Cr.PC are to be sparingly exercised in rare of the rarest cases and not to be exercised in a routine manner. In the latest case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & Ors., reported in (2021) SCC Online SC 315, the Hon’ble Supreme Court has held as follows: “23(iv). The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).”

9. In view of the above facts and circumstances, this Court is of the unhesitant opinion that the present may not be a fit case for exercise of powers under Section 482 of the Cr.PC.

10. Accordingly, the same is dismissed. Page No.# 5/5 JUDGE Comparing Assistant