Page No.# 1/9 GAHC010192492024 2026:GAU-AS:7058 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1156/2024 SHAHNUR ALOM @ SAHANUR ALOM S/O SAIFUL ISLAM VILL- SUKMANAH P.S. PATACHARKUCHI DIST. BARPETA, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:GOLAPI KHATUN D/O ABUL HUSSAIN VILL- CHAULIABARI P.O. SARUPETA DIST. BARPETA ASSAM PIN-78131 Advocate for the Petitioner : MR. R ALI, MR H A AHMED Advocate for the Respondent : PP, ASSAM, MS. S BEGUM (R-2),MR. A ALIM SK (R-2),MS. N NASRIN (R-2),MR. M U MONDAL (R-2) Page No.# 2/9 BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA ORDER 21-05-2026 Heard Mr. H. A. Ahmed, learned counsel for the petitioner and Mr. K. K. Das, learned Additional Public Prosecutor, Assam for the respondent No.1. Also heard Ms. N. Nasrin, learned counsel for the respondent No.2. 2. This is an application filed under Section 528 BNSS, 2023 for quashing the entire proceeding of Sessions Case No. 36/2024, under Sections 417/376/406 IPC (arising out of PRC Case No. 247/2023) pending before the Court of learned Sessions Judge, Bajali at Pathsala, including the impugned FIR of Patacharkuchi P.S. Case No. 201/2023 and the Charge Sheet No.235/2023 dated 30.06.2023 under Sections 417/406/376 IPC. 3. Mr. Ahmed, learned counsel submitted that the statement made in the FIR does not show any prima facie case to be registered or to be charge sheeted under Sections 417/406/376 IPC. But without considering the relevant facts of the case, the case has been charge sheeted and the cognizance is also taken by the learned Sessions Judge under Sections 417/406/376 IPC. Initially the FIR was filed against three accused persons. However, accused Nos. 2 and 3 were not charge sheeted after the enquiry of this case. 4. He further submitted that it is a fact that there was a love affair between the parties and even if there is any physical relationship, it was purely a consensual one. He further submitted that in the charge sheet also there is no other material except the statement made in the FIR and at the same time, in the statement of the victim recorded under Sections 161 and 164 CrPC Page No.# 3/9 corresponding to Section 180 and 183 BNSS also reveals that she made the same statement while recording her statement. 5. He further submitted that the medical report also reveals that the doctor found no recent sign of sexual intercourse at the time of her examination. Apart from that there was only some telephonic conversation between the parties and with some false and concocted allegations the FIR has been lodged against the present petitioner. 6. Mr. Ahmed further submitted that even if the entire statement made in the FIR is taken at their face value, in that case also, no case is made out against the present petitioner under Section 376 IPC. He further submitted that there is no ingredient in the FIR as well as the statement made by the victim that physical relationship was between them only on false promise of marriage or her consent was taken only with the misconception of fact to fulfill the ingredients of Section 376 IPC as charge sheeted. 7. He submitted that if there is a free consent from the prosecutrix, there cannot be a case under Section 376 IPC. He further submitted that from the available materials it further reveals tht prima facie there is no case against the present petitioner. Only the contention that he had sexual relationship with the victim on false promise of marriage and after breaking up of relationship between the parties cannot fulfill the ingredients of Section 376 IPC. 8. Mr. Ahmed, learned counsel relied on a decision of the Hon’ble Apex Court in the case of Prashant Vs. State of NCT of Delhi reported in 2024 SCC OnLine SC 3375 and emphasized on para 17, 20, 23 and 24 of the said judgment wherein the Hon’ble Apex Court had observed that ‘when the relationship between the parties are purely consensual and when the Page No.# 4/9 complainant was also aware about the consequences of their relationship, the ingredients of offence of rape cannot be made out’. Para 23 of the said judgment read as under: “23. Recently this Court in XXXX vs. State of Madhya Pradesh, (2024) 3 SCC 496 held that when the relationship between the parties was purely consensual and when the complainant was aware of the consequences of her actions, the ingredients of the offence of rape were not made out. Similarly, in Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 arising out of identical facts, this Court has enumerated the following: “18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.” 9. To substantiate the arguments, Mr. Ahmed also relied on another judgment of the Apex Court in the case of Rajnish Singh @ Soni vs. State of Uttar Pradesh reported in 2025 SCC OnLine SC 478 and in the said judgment, learned counsel basically relied on para 30, 31, 39, 40 and 41 of the said judgment. 10. Citing the above referred judgment, it is submitted by Mr. Ahmed, that considering the overall material in the case record, it is a fit case wherein the entire criminal proceeding pending before the learned Sessions Judge and the impugned FIR and the charge sheet may be set aside and quashed by invoking the power under Section 528 BNSS. 11. Ms. Nasrin, learned counsel for the respondent No.2/informant submitted in this regard that consent was obtained only on misrepresentation of fact and thus, it cannot be stated to be free consent. Further she submitted that whether Page No.# 5/9 free consent was there from the victim side can be decided by the learned Sessions Judge at the time of trial of the case. She further submitted that from the contents of the FIR as well as from the statement made by her, it reveals that the consent was obtained only giving false assurance of marriage. Thus, she submitted that it is not at all a fit case to set aside and quash the criminal proceeding pending against the petitioner by invoking the inherent power under Section 528 BNSS. 12. Mr. Das, learned APP submitted in this regard that from the FIR as well as from the statement made by the victim under Section 161 and 164 CrPC corresponding to Section 180 and 183 BNSS remain consistent. He further submitted that the burden lies on the petitioner to prove that there was free consent and that can be proved only at the time of hearing/trial of the accused petitioner. But prime facie there are sufficient materials to proceed with the case and the ingredients in the FIR itself is sufficient prime facie to proceed with the cognizable offence and thus, it is not at all a fit case to set aside and quash the criminal proceeding. 13. Further he submitted that the case is also at a very nascent stage and the petitioner can also raise those objections at the time of hearing on charge. 14. Heard the submissions made by the learned counsel for the parties and I have also perused the scanned copy of the TCR and the annexures filed along with the petition. 15. It is the case of the petitioner that the FIR was lodged with some false and concocted allegation though there was love relationship between the informant and the petitioner, but there was no such false promise of marriage for developing any physical relationship with her. If any physical relationship was Page No.# 6/9 there between the victim and the petitioner was consensual and there was free consent from the victim for having sexual relationship with the accused petitioner. The FIR also does not disclose any case against the present petitioner and it is prima facie reveals that there was love relationship between them and in that context there was some physical relationship which was purely consensual. 16. Accordingly, it is the case of the petitioner that there is no ingredients to establish a case against the present petitioner under Section 317/376/406 IPC for which the charge sheet is filed and cognizance is accordingly taken. 17. On the other hand it is the case of the respondents/State that the accused had physical relationship with her only with a false promise of marriage and there was never free consent from the side of the victim and her consent was obtained only under misrepresentation of fact. 18. In the FIR it is seen that she alleged false promise of marriage and on the very first day of their physical relationship her consent was obtained only on promise of marriage and thus, she brought a prima facie case against the petitioner tht her consent was obtained only under misrepresentation of facts i.e., the false promise of marriage though, he never had any intention to marry the respondents. The incident which was described that on 21.11.2022 in the FIR also reveals that he had forcible sexual intercourse with her on false promise of marriage, but subsequently, on the day itself, he refused to marry her and rather, he and other accused persons assaulted her. Thus, it is seen that the respondent prima facie brought the allegation of rape stating that she was forced to have sexual intercourse with him on the pretext of false promise of marriage. However, the case is at very nascent stage and the cognizance of the offence is only taken by the learned Sessions Judge considering the materials Page No.# 7/9 available in the case record and case diary and the accused petitioner will get ample opportunity to raise the issue at the time of hearing on charge. 19. Further at the time of taking cognizance or issuing process, it is settled position of law that prima facie satisfaction of the Magistrate is required and detailed discussion of the evidence is not to be appreciated at the time of taking cognizance. 20. In the case of Delhi Race Club (1940) Limited and others. Vs. State of Uttar Pradesh and Another reported in (2024) 10 SCC 690 the Hon’ble Supreme Court had expressed the view that - at the time of issuing process or taking cognizance, the Magistrate is only to be prima facie satisfied whether there is sufficient ground for proceeding against the accused. The detailed discussion of the merits or demerits of the case is not required at the time of issuing process. In para 15 of the above referred judgment it has been held as under: “15. Further it is also well settled that at the stage of issuing process a Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its inherent jurisdiction which is to be sparingly used. The scope of the inquiry under Section 202 of the CrPC is extremely limited — only to the ascertainment of the truth or falsehood of the allegations made in the complaint — (i) on the materials placed by the complainant before the Court (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out, and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.” 21. In the instant case, also it is seen tht cognizance has been taken by the learned Sessions Judge finding prima facie case to proceed with the case. However, as stated above, the petitioner will get opportunity of raising these Page No.# 8/9 issues at the time of charge hearing. 22. In case of State of Haryana v. Bhajan Lal, reported in 1992 Supple. 1 SCC 335, the Hon’ble Apex Court had provided several guidelines while disposing the criminal petition for quashing. The following guidelines are issued in para 102, which reads 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 powers 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 entirely 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 expert 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 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 Page No.# 9/9 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 23. In the instant case also it is seen that on a plain reading of the FIR itself a prima facie case reveals against the petitioner that he had sexual/physical relationship with the victim/prosecutrix on the pretext of false promise of marriage and hence, it cannot be held that there is no prime facie case against the petitioner at the face value of the FIR for quashing or setting aside the entire criminal proceeding. 24. Considering all these aspects of the case, materials available in the case record as well as the statement made in the FIR and the statement of the victim girl, this Court is of the opinion that it is not at all a fit case to set aside and quash the entire proceeding of Sessions Case No. 36/2024, under Sections 417/376/406 IPC (arising out of PRC Case No. 247/2023) pending before the Court of learned Sessions Judge, Bajali at Pathsala, including the impugned FIR of Patacharkuchi P.S. Case No. 201/2023 and the Charge Sheet No.235/2023 dated 30.06.2023 under Sections 417/406/376 IPC. 25. Accordingly, this criminal petition being devoid of merit stands dismissed. JUDGE Comparing Assistant