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Judgment
Heard Mr. M. A. Sheikh, learned counsel for the petitioners and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam for State/respondent No.1.
Also heard Mr. A. K. Hussain, appearing on behalf of the informant/respondent No.2.
None appeared for the victim/respondent No.2, despite service of notice on her, on 14.11.2017.
By this petition under Section 482 Cr. P.C., the petitioners have prayed for setting aside and quashing the Sessions Case No. 259/2015 under
Section 266A/34 IPC in the Court of learned Assistant Sessions Judge, Goalpara.
The petitioners have contended that the respondent No. 2 lodged an F.I.R., on 20.12.2012, before the Officer-in-Charge of Matia P.S., alleging,
inter-alia, that on 18.12.2012 at about 9 p.m., the petitioner No. 1, with the help of the petitioner No.2 kidnapped his minor sister/the respondent No. 3
herein and on the following day, that is, on 19.12.2012 at about 3 p.m., his said sister was recovered along with the petitioner No. 1. Based on the
aforesaid F.I.R., Matia P.S. Case No. 103/12 under Section 366A/34 of I.P.C., dated 20.12.2012, was registered and after completion of investigation
submitted the charge sheet being charge-sheet No. 19/13 against both the petitioners. The learned Addl. Chief Judicial Magistrate, Goalpara
committed the case for trial to the court of learned Sessions Judge, Goalpara, who in turn, made over the case to the Court of learned Assistant
Sessions Judge, Goalpara for trial.
The petitioners have further contended that in the aforesaid case, the learned trial court, by orders, dated 08.03.2016 and 26.04.2016, issued
summons to the petitioners and notice to their bailors. However, without service of summons, by orders, dated 30.05.2016, 28.06.2016, 22.07.2016,
29.07.2016, 23.08.2016, 17.09.2016, 01.11.2016, 25.11.2016 and 25.01.2017, the learned trial court issued Non-bailable Warrant of Arrest (NBWA)
against them. Also the learned trial court, by orders, dated 17.03.2017, 03.04.2017, 28.04.2017 and 17.05.2017, issued Proclamation and Attachment
orders against both the petitioners and finally, by order dated 28.04.2017, on due prove of execution of the aforesaid process proclaimed the petitioner
No.2 and by order, dated 17.05.2017, proclaimed the petitioner No.1 as absconders and accordingly, the case was filed against them till execution of
the pending NBWA. Aggrieved, the petitioners preferred Criminal Revision being C.M. 28/17, before the court of learned Sessions Judge, Goalpara,
and the same was dismissed by order, dated 19.04.2017.
According to the petitioners, they did not receive any summons in the case and on the other hand, on 17.12.2015, the petitioner No. 2 along with his
wife went to Nangoi, Meghalaya to work in the coal field and on 16.12.2015, the petitioner No. 1 went to Dimspur, Nagaland to work as labour, under
contractors, for which they could not come back due to non-receipt of wages. The petitioners have stated that they came to know about the issuance
of coercive court process, when the police visited their house to arrest them and thereupon they tortured from their respective work places and on the
advise of their counsel, they preferred the said revision petition before the court of learned Sessions Judge, Goalpara, which stood dismissed as stated
above.
It is also the contention of the petitioners that in the meantime, the petitioner No. 1 has married the alleged victim/the respondent No. 3 herein, on
01.08.2014, by registering their marriage before the Kazi at Gauripur, Dhubri and out of their wedlock a female child was born on 28.08.2015 and they
are leading a happy marital relation. Thus, the petitioners have contended that the Sessions Case No. 259/2015 of the court of learned Assistant
Sessions Judge, Goalpara has become an unmerited litigation. Hence the instant petition praying as stated above.
Mr. M. A. Sheikh, the learned counsel for the petitioners during argument reiterates the facts averred in the petition and further submits that as the
litigation between the parties has become infructuous due to marriage between the petitioner No. 1 and the respondent No. 3 victim in view of the
principle laid by the Hon’ble Supreme Court in Sajab Singh Bamra Chavan Vs. Dattatray Gul abrophalke, reported in 2015 (3) SCC 125, the case
may be quashed.
Ms. S. Jahan, learned Addl. P.P., Assam, submits that under the inherent jurisdiction of Section 482 Cr. P.C., this court is to confine to the
allegations made in the F.I.R. only and the remaining other incidental or related facts, this court cannot decide. Ms. Jahan further submits that the
F.I.R., dated 20.12.2012, disclosed of cognizable offence committed by the petitioners and others and therefore, instead of quashing the case, the
petitioners may be directed to appear before the learned trial court and apply for regular bail.
Mr. A. K. Hussain, learned counsel appearing on behalf of the informant/ respondent No.2 submits that in view of the marriage between the
petitioner No.1 and the respondent No.3/victim and birth of a child out of their wedlock, he has no objection against quashing of the case as prayed.
To a pointed query by this Court, learned counsel for the petitioners submits that under Muslim personal Law, a muslim girl is eligible to marry on
attaining puberty and there is a social difficulty in producing the victim, who is now married to the petitioner No.1.
On perusal of the documents annexed to the petition, in support of the averments made therein and after hearing the leaned counsel of both sides
as stated above, it is noticed that in the F.I.R., dated 20.12.2012, the age of the victim/respondent No.3 was mentioned as 16 years. The birth
certificate, dated 31.08.2015, issued by the Registrar of Birth & Death, Matia B.P.H.C. reveals that their daughter was born on 28.08.2015. Both the
petitioners are proclaimed absconders by the learned trial court. It is also noticed that notice on the respondent No.3/victim was personally served on
14.11.2017, but she has not entered appearance in the instant proceeding.
It is also noticed that the petitioners have not prayed for setting aside and quashing of the orders of the learned trial court, mentioned above,
whereby they are proclaimed absconders and the order, dated 19.04.2017, passed by the learned Sessions Judge, Goalpara in criminal revision being
C.M. 28/2017, wherein they challenged the issuance of NBWA only issued against them for default from 30.05.2016 to 03.04.2017.
However, keeping in consideration of the facts averred in the petition, and the findings of this court as above, the petitioners are directed to appear
before the learned trial court on or before 14.08.2018 and till their appearance, the execution of the pending NBWA each against them shall be treated
as bailable Warrant of Arrest of Rs. 10,000/- only.
The petitioners may apply for fresh bail, if so advised and thereupon, the learned trial court shall grant them bail, subject to suitable conditions as
deemed necessary.
Thereafter, the petitioners shall be at liberty to approach afresh this court and apply for remedy under Sections 482 Cr. P.C.
With the above directions, the petition stands disposed of.