Page No.# 1/4 GAHC010223022024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1300/2024 PULOK HANDIQUE AND 2 ORS S/O SRI PULIN HANDIQUE, BRANCH MANAGER OF SHRIRAM TRANSPORT FINANCE COMPANY LTD. TINSUKIA BRANCH, OFFICE ADD - B.D. COMPLEX, 2ND FLOOR, ABOVE BANK OF MAHARASHTRA, CHIRWAPATTY ROAD, P.O.-TINSUKIA, P.S.-TINSUKIA, DIST- TINSUKIA, ASSAM, PIN-786125 2: APU BORGOHAIN S/O THANURAM BORGOHAIN VILL- KUTUHA NAGAON P.O.-BALIGAON P.S.-BARBORUAH DIST- DIBRUGARH PIN-785676 3: PRANJAL PRATIM BURAGOHAIN S/O LATE PADMA NATH BURAGOHAIN R/O VILL- RONGPUR P.O.-PHILLOBARI P.S.-PHILLOBARI DIST- TINSUKIA PIN-78616 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:SUMIT KUMAR SAH S/O SRI UMESH SAH R/O AMBAGAN RANGAPORA ROAD P.O.-TINSUKIA P.S.-TINSUKIA DIST- TINSUKIA Page No.# 2/4 ASSAM PIN-78612 Advocate for the Petitioner : MR H BARUAH, MR P P PHUKAN Advocate for the Respondent : PP, ASSAM, MR. N HASAN,MR. I K BURAGOHAIN,MR. A HASAN :: BEFORE :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R 03.04.2025 Heard Mr. H. Barua, the learned counsel appearing for the petitioners. Also heard Mr. M.P. Goswami, the learned Addl. Public Prosecutor, Assam representing the State. Heard Mr. N. Hasan, the learned counsel appearing for the private respondent. 2. This an application under Section 528 of the BNSS, 2023 challenging the order dated 07.09.2024 passed by the learned Judicial Magistrate First Class, Tinsukia in PRC Case No.841/2024. By the impugned order, the trial court took cognizance of the offences under Sections 379 of the Indian Penal Code read with Section 34 of the said Code against the present petitioners. 3. The informant has alleged that his truck bearing Registration AS-01-GC-0135 was forcibly taken away by the petitioners. They allegedly claimed that they were officials of Shriram Finance and the said vehicle was hypothecated to that company. The petitioners told the informant that he had failed to repay the loan taken from the Finance Company. 4. The informant has claimed that he never took any loan from Shriram Finance and therefore, there cannot be a question of his truck being hypothecated to that company. 5. The petitioners produced different documents before this Court to show that the Page No.# 3/4 informant had taken loan from Shriram Finance and the truck is still hypothecated to the said company. They have filed this application praying for quashing the criminal proceeding. 6. I have considered the submissions made by the learned counsel of both sides. 7. The guidelines for consideration of a petition under Section 482 of the CrPC (now Section 528 of the BNSS, 2023 ) has been laid down by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Paragraphs 102 and 103 of the judgment read as under: “102. 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 give 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 Page No.# 4/4 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. 103. 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.” 8. Reverting to the case in hand, the petitioners have claimed that the vehicle of the informant was hypothecated to Shriram Finance and as the informant failed to repay the loan, they had repossessed the vehicle. The informant on the other hand claims that he never took any financial assistance from Shriram Finance before buying his truck. So, this is an issue of fact which has to be proved by the petitioners by adducing evidence. At the time of investigation, the petitioners should have convinced the Investigating Officer by producing relevant documents and in that case, the Investigating Officer would not have filed the charge sheet against them. At this stage, at least, there is a prima facie case under Section 379 of the Indian Penal Code in the eyes of the trial court. Now, it is the duty of the petitioners to prove their case. 9. Under the aforesaid circumstance, this Court is of the opinion that this is not a fit case for exercising power under Section 528 of the BNSS, 2023. 10. The criminal petition is found to be devoid of merit, stands dismissed accordingly. The criminal petition is disposed of. JUDGE Comparing Assistant