Page No.# 1/5 GAHC010248042025 2026:GAU-AS:4370 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1386/2025 HITESWAR DEKA S/O LATE HEMANTA DEKA R/O GAKHIR CHOWK, PACHIM BORAGAON, P.S.- GORCHUK, DISTRICT- KAMRUP (M), ASSAM, PIN-781035 VERSUS THE STATE OF ASSAM AND 2 ORS. REPRESENTED BY PUBLIC PROSECUTOR, ASSAM 2:HIMANTA GOHAIN S/O DHARMESWAR GOHAIN R/O CINEMA HALL ROAD CHABUA P.S.- CHABUA DISTRICT- DIBRUGARH ASSAM PIN-786001 3:AROTI PHUKAN GOHAIN W/O DHARMESWAR GOHAIN R/O R/O CINEMA HALL ROAD CHABUA P.S.- CHABUA DISTRICT- DIBRUGARH ASSAM PIN-78600 Advocate for the Petitioner : MR P D BHUYAN, MR S DUSAD,MR. A. M. SIDDIQUE Advocate for the Respondent : PP, ASSAM, MR. R K MAHANTA (R2, R3),MR. P BORDOLOI (R2, R3) Page No.# 2/5 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 26.03.2026 Heard Mr. A.M. Siddique, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor, Assam. Also heard Mr. P. Bordoloi, learned counsel appearing for the respondent No.2 and 3 informant/victim. 2. This is an application under section 528, BNSS for quashing of the charge sheet and order of framing charge against the present accused petitioner. 3. It is submitted by Mr. Siddique that the FIR has been lodged by some false and concocted allegations and without verification of the facts and without any proper investigation of this case, the I.O. has filed charge sheet against the present petitioner, vide Charge Sheet No. 65/2024 dated 29.09.2024 and the cognizance is also taken by the learned Additional Sessions Judge, FTC, Dibrugarh. 4. The charge has also been framed against the present accused petitioner under sections 376(1)/384/417, IPC. 5. Mr. Siddique, further submitted that the statement made in the FIR and the statement made by the respondent No.3 under Section 161 Cr.P.C and 164 Cr.P.C, are also contradictory. From the statement of the witnesses and the FIR itself it is seen that there is no prima facie case is established against the present petitioner to frame charge against him under Section 376(1) IPC, nor there is any evidence of monetary transactions etc. to frame charge against him under Section 384 IPC. 6. From the statement it is seen that she herself invited the accused petitioner to her residence and thereafter if any sexual contact was there it was purely a consensual one and there was no force applied to her by the accused petitioner. Further, he submitted there is two medical evidence to support the case of the prosecution. That apart, statement made by the respondent No.3 and the statement made in the FIR is highly improbable and it cannot be considered that there was any prima facie materials to proceed the case against the present petitioner. Page No.# 3/5 7. Mr. Siddique, further submitted that there is no digital evidence also to prove the transfer of money, and only with a malafide intention to harass the petitioner, the FIR has been instituted with some false and concocted allegations. Accordingly he submitted that this is a fit case wherein the entire criminal proceeding including the FIR and charge sheet can be quashed by invoking the power under Section 528 Cr.P.C. If the case is allowed to proceed further it will cause prejudice to the petitioner and also hamper his reputation in the society. Mr. Siddique, accordingly submitted that the entire criminal proceeding pending before the Court of learned Additional Sessions Judge, Dibrugarh, may be set aside and quashed. 8. Mr. B. Sarma, the learned Additional Public Prosecutor has submitted in this regard that there is sufficient prima facie materials to proceed with the case further. He further submitted that the statement made by the Respondent No. 3 in 161 Cr.P.C and 164 Cr.P.C are found to be consistent and there is clear allegations of rape against the present accused petitioner. 9. He further submitted that considering the prima facie material, the charge accordingly framed under Section 470/376(1)/384 IPC against the present Petitioner. However, till date no witnesses is examined by the prosecution including the victim. He accordingly raised objections and submitted that this is not at all a fit case to quash the entire proceeding by invoking the inherent power under Section 528 BNSS. 10. Mr. Bordoloi, the learned counsel appearing for the Respondent No. 2 and 3, i.e., the informant and the victim of this case, however, submitted that he has no objection if the criminal proceeding is quashed against the present Petitioner. 11. Hearing the submissions made by the learned counsel for both sides, I have also perused the case records, annexures filed along this petition as well as the scanned copy of the TCR which has been received by the Court. From the contents of the FIR as well as from the statement made by the victim under Section 164 Cr.P.C, it reveals that sufficient incriminating materials brought against the present petitioner and further, statement of the FIR also prima facie establishes a cognizable offence against the accused petitioner. It cannot be held that there is no material in the statement made in the FIR as well as the statement made by the victim under Section 164 Cr.P.C to held that the case is lodged only with the malafide intention only to harass the present Petitioner. 12. Rather prima facie there is sufficient material to established case against the present petitioner. Page No.# 4/5 13. The Hon’ble Supreme Court in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335, has held 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 channelized 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 Page No.# 5/5 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.” 14. In the present case it is seen that there is no such material to held that only for the malafide intention to harass the present petitioner the FIR was lodged or instituted by the son of the victim, rather it is seen that there is a prima facie material against the accused petitioner and hence this Court is of the opinion that the this is not at all a fit case to set aside or quash the entire criminal proceeding pending before the Additional Sessions Judge, FTC, Dibrugarh at this stage by invoking under Section 528 Cr.P.C. 15. In view of the present petition stands disposed of. JUDGE Comparing Assistant