Satter Ali Abdus Satter vs State Of Assam And Anr

Manish Choudhuryry, J

Heard Mr. A. Islam, learned counsel for the petitioner and Mr. M.P. Goswami, learned Additional Public Prosecutor for the respondent no. 1, State of Assam.

This criminal petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 is preferred seeking quashing of [i] a First Information Report [FIR] dated 17.04.2025, registered as Dhubri Police Station Case no. 208/2025 under Sections 126[2]/65[1]/62, Bharatiya Nyaya Sanhita [BNS], 2023, read with Section 10 of the Protection of Children from Sexual Offences [POCSO] Act, 2012; [ii] a charge-sheet, being Charge-Sheet no. 276/2025 dated 22.07.2025, submitted in connection with Dhubri Police Station Case no. 208/2025; and [iii] the criminal proceedings of Special Case no. 241/2025, which arose out of Dhubri Police Station Case no. 208/2025, and G.R. Case no. 613/2025, presently pending before the Court of Additional Session Judge–cum–Special Judge [POCSO], Dhubri [‘the Special Court’, for short].

It is the contention of the learned counsel for the petitioner that after registration of the FIR on 17.04.2025, the petitioner was not served with any notice of appearance in terms of Section 41A, CrPC [corresponding Section 35, BNSS], who was to be served upon him within two weeks from the date of institution of the case by the Investigating Officer [I.O.] and the I.O. merely mentioned in the Charge-Sheet that the petitioner was found absconding during the period of investigation. The Charge-Sheet was submitted by the I.O. with a prayer to the Special Court to issue warrant of arrest against the petitioner.

Mr. Islam, learned counsel for the petitioner has relied upon the decision of the Hon’ble Supreme Court in Arnesh Kumar vs. State of Bihar and another, [2014] 8 SCC 273, in support of his submissions and to seek interference.

Mr. Goswami, learned Additional Public Prosecutor appearing for the respondent State has submitted that the allegations in the FIR had clearly made out a case for the offences under which the FIR was registered on 17.04.2025 as Dhubri Police Station Case no. 208/2025. He has further pointed out that the petitioner was well aware of the allegations made against him in the FIR registered on 17.04.2025, as he had approached the Special Judge, Dhubri initially and subsequently, this Court seeking the privilege of pre-arrest bail. He has further pointed out that the Special Court had already issued summons to secure the appearance of the petitioner as the sole accused in Special Case no. 241/2025. Yet, the petitioner has not appeared before the Special Court till date.

The informant is the father of the alleged victim. In the FIR lodged on 16.04.2025, it was inter-alia alleged that the alleged victim, aged about 15 years, was a student of Fesarhat Jameliya Isamiya Hafijiya Madrassa. The petitioner is a teacher in the said Madrassa. On 10.04.2025, though the Madrassa remained close, the petitioner called a few girl students of the Madrassa including the alleged victim for winnowing rice and other works. On that day, the petitioner took the alleged victim inside the office room and by closing the door, hugged the alleged victim. The petitioner touched the breast of the alleged victim and also tried to rape her. When the alleged victim started shouting, the accused shut her mouth. When she bite the hands of the accused, the accused released her. On hearing the noise, the other girls arrived at the spot and at that moment, the accused fled away by opening the door.

On the basis of the FIR, the case, Dhubri Police Station Case no. 208/2025 was registered for the offences under Sections 126[2]/65[1]/62, BNS read with Section 10 of the POCSO Act on 17.04.2025. In the course of investigation, statements of the alleged victim was recorded and the Birth Certificate of the alleged victim was also seized. The alleged victim was medically examined and the examining doctor has submitted a Medical Examination Report. The statements of other witnesses were also recorded. On the basis of the materials collected during the course of investigation, the I.O. found a prima facie case established against the petitioner for committing the offences under Sections 126[2]/65[1]/62, BNS, read with Section 10 of the POCSO Act and accordingly, submitted a Charge-Sheet under Section 193, BNSS vide Charge-Sheet no. 276/2025 on 22.07.2025.

In the Charge-Sheet, the I.O. mentioned that during the course of investigation, the petitioner was found absconding from his home to evade the arrest and for the same reason, the petitioner could not be arrested. The I.O. made a prayer before the special court to issue a warrant of arrest against the petitioner.

The basis of reliance in the decision in Arnesh Kumar [supra] is the observation made therein to the effect that in cases where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with fine or without fine, it is incumbent on the Police Officer to issue a notice of appearance in terms of section 41A, CrPC [presently Section 35, BNSS] for service on the accused within two weeks from the date of institution of the case. It has been laid down therein that failure to comply with the direction shall apart from rendering the Police Officer concerned liable for departmental action, would also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

The principles which are required to be kept in consideration for quashing of any FIR, or Charge-Sheet, or any criminal proceeding are laid down by the Hon’ble Supreme Court in Paragraphs 102 & 103 of State of Haryana vs. Bhajan Lal, [1992] supp [1] SCC 335. For ready reference, the Paragraphs 102 & 103 of the decision are quoted hereinbelow :-

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 have given 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.

[1] 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.

[2] 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.

[3] 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.

[4] 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.

[5] 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.

[6] 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.

[7] 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.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

Section 62, BNS has provided that whoever attempts to commit an offence punishable by the BNS with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by the Sanhita for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

Sub-section [1] of Section 65, BNS has provided for punishment for rape. Section 65[1] has provided that whoever commits rape on a woman under 16 years of age, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

The Section 10 of the POCSO Act has provided for maximum punishment of seven years.

It is true that for the offence under Section 10, POCSO Act, the decision in Arnesh Kumar [supra] could be made applicable. However, the allegation against the petitioner also prima facie fulfill the ingredients of the offence defined in Section 62, BNS read with section 65[1], BNS. In such view of the matter, the decision in Arnesh Kumar [supra] is found not applicable in the facts and circumstances of the case.

When the allegations made in the FIR registered as Dhubri Police Station Case no. 208/2025 and the charge-sheet no. 276/2025 submitted upon completion of investigation of Dhubri Police Station Case no. 208/2025 as Charge-Sheet no. 276/2025 are considered and accepted in their entirety, ingredients of the offences mentioned in Sections 126[2]/65[1]/62, BNS, read with Section 10 of the POCSO Act are found prima facie made out.

Having regard to the allegations made in the FIR and consequent submission of the Charge-Sheet, this Court does not find any merit to entertain this criminal petition under Section 528, BNSS. Consequently, the same is dismissed.

Since the trial is pending before the Special Court at Dhubri, it is for the petitioner to participate in the trial. It is observed that the observations made herein are only prima facie in nature and the same shall not be construed as observations as regards merits of the case in Special Case no. 241/2025.