Nekib Alahi Alias Nekibur Hussain vs The State Of Assam And Anr

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GAHC010228302025

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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1274/2025
NEKIB ALAHI ALIAS NEKIBUR HUSSAIN
SON OF LATE MAHBUB HUSSAIN
VILL- HOWLY, WARD NO. 10
P.S. HOWLY
DIST. BARPETA, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP BY THE PP, ASSAM
2:JESMINA BEGUM
D/O LIYAKAT ALI
VILL- KHANDAKARPARA
P.O. AND P.S. HOWLY
DIST. BARPETA
ASSA
Advocate for the Petitioner : MR. R ALI, MISS. S PARBIN,MR H A AHMED
Advocate for the Respondent : PP, ASSAM, M ALAMGEER (R-2),S NAZNIN(R-2),MR. SAYED
SALIM AHMED(R-2)

BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER (CAV)
Date : 28-08-2026

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Heard Mr. R Ali, the learned counsel for the petitioner. Also heard Mr. B
Sharma, the learned Addl. PP appearing on behalf of State respondent no. 1
and Mr. S S A Ahmed, the learned counsel for respondent no. 2.
2. This is an application under Section 528 BNSS for setting aside and
quashing of the impugned Charge Sheet No. 03/2024 dated 28.01.2024 u/s
120(B)/420/376 IPC and also prayed for quashing of the impugned order dated
26.04.2024 passed in PRC Case No. 407/2024 by learned JMFC Barpeta,
whereby cognizance was taken against the present petitioner u/s
120(B)/420/376 IPC.
3. It is submitted by Mr. Ali that the respondent no. 2 filed a complaint before
the learned CJM, Barpeta on 08.06.2023 alleging inter alia that her marriage
was solemnized about 12 years back with one Mamirul and they have two
children out of their wedlock. The accused/petitioner used to visit to her house
and also got acquainted with her. However, in absence of her husband the
accused/petitioner enticed her to marry him. Initially the respondent no. 2 did
not agree to his proposal but subsequently the accused/petitioner threatened
her and blackmailed her saying that he will commit suicide. On 12.04.2023 at
about 7 PM, the accused/petitioner taking the advantage of absence of her
husband took her on a bike for shopping to Howly Bazaar and from there the
accused took the respondent no. 2/informant to his own house and locked her
in his room. At the night, the accused/petitioner forcibly committed sexual
intercourse with her against her will with a false promise of marriage. In this
way, the accused/petitioner detained her for 15 days and had sexual intercourse
with her. On 18.05.2023 at about 9 AM when the informant insisted for marriage

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the accused/petitioner conspired with other accused persons, abused her with
obscene language, grabbed her and dragged her outside his house. Thus, the
accused/petitioner and other persons also damaged her image in the society
and her modesty. He had sexual intercourse with the respondent no. 2 by
cheating and deceitful means by promising to marry her and as such the
respondent no. 2 also got pregnant. Thereafter accused used to threaten her
and made some illegal demand and also threatened to kill her. With these
allegations the complaint was lodged before the learned CJM, Barpeta which
was forwarded to O/C, Howly P.S. for necessary action and accordingly the
Howly P.S. Case No. 204/2023 u/s 120(B)/420/294/354/376/506 IPC has been
registered and case was accordingly investigated. After completion of
investigation, the I/O also submitted Charge Sheet on 28.01.2024 against the
present petitioner u/s 120(B)/420/376 IPC showing him as an absconder. After
filing of the charge-sheet the PRC Case No. 407/2024 was accordingly
registered and the learned JMFC, Barpeta has taken cognizance against the
accused/petitioner u/s 120(B)/420/376 IPC and issued summons for his
appearance.
4. It is submitted by Mr. Ali that from the statement made by the respondent
no. 2/informant u/s 161 Cr.PC also it reveals that everything had happened as
per her own choice and there is no forceful inducement to have sexual
intercourse with her. She is a married woman having two children and had
physical relationship with him, which was purely consensual one and there
cannot be any false promise of marriage also, as it is admitted that she is a
married woman. False and concocted allegation is brought against the
accuse/petitioner only to harass him. And from the statements made by the
witnesses also it is seen that there cannot be any case u/s 376 IPC and there is

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no ingredient to fulfill the said Section to file Charge Sheet against the
accused/petitioner u/s 376 IPC nor there is any material to take cognizance
against him under the said section of law. He further submitted that case has
been charge-sheeted against only the accused/petitioner and hence fulfillment
of the ingredient of Section 120(B) also does not arise at this stage. It is a fit
case wherein the entire proceeding as well as the FIR and the Charge Sheet is
liable to be set aside and quashed by invoking the power u/s 528 of BNSS and if
the proceeding is allowed to be continued, it will be an abuse of the process of
law. Mr. Ali accordingly submitted that it is a fit case to be quashed under the
above circumstances of the case.
5. Mr. Ali in that context also relied on the decision of Apex Court reported in
(2019) 18 SCC 191 [Dr. Dhruvaram Murlidhar Sonar v. State of
Maharashtra & Others] and para 23 of the said judgment reads as under:-
“23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases,
must very carefully examine whether the complainant had actually wanted to marry the victim
or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as
the later falls within the ambit of cheating or deception. There is also a distinction between mere
breach of a promise and not fulfilling a false promise. If the accused has not made the promise
with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not
amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused and not solely on account of the misconception
created by accused, or where an accused, on account of circumstances which he could not have
foreseen or which were beyond his control, was unable to marry her despite having every
intention to do. Such cases must be treated differently. If the complainant had any mala fide
intention and if he had clandestine motives, it is a clear case of rape. The acknowledged
consensual physical relationship between the parties would not constitute an offence
under Section 376 of the IPC.”
6. He also relied on another decision of this Court reported vide 2025 0
Supreme (Gau) 158 [Debo Prasad Barman @ Deba Prasad Barman v.
The State of Assam & Anr.] and emphasized on para 35 of the said judgment
which reads as under:-

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“35. The only issue raised by the prosecution as well as the learned Additional Public
Prosecutor at the time of argument that her consent was obtained with the misconception of fact
of false promise of marriage and in that case , the case comes under the definition of Section
375 of IPC and the accused is liable to be convict u/s 376 of IPC. To substantiate the fact of
false promise of marriage or obtaining of consent with mis-conception of fact it is seen that
except one statement made by the victim in her evidence that she was asked to come with the
accused as he promised to marry her. Apart from the said statement, there is no other incident
described by the prosecution witnesses as to whether the accused/appellant used to meet with
the victim, promised to marry her and as to whether anyone else had the knowledge about the
false promise of marriage to the victim by the accused/appellant. There is no evidence at all that
he had the intention to cheat the victim from the very inception of their relationship and there is
no evidence from the prosecution that he earlier also had sexual intercourse with her with false
promise of marriage. However, from the evidence of the doctor and the history recorded by him,
it was seen that several episodes of coitus for last two months had happened. But, only on the
basis of an averment made by the prosecutrix that the accused had forcible sexual intercourse
with her only with the false promise of marriage, there is no other evidence to substantiate the
plea.”
7. In the same context Mr. Ali also relied on another decision of the Apex
Court passed in case of Pramod Kumar Navratna v. State of Chattisgarh
and Others and emphasized on para 17 of the said judgment which reads as
under:-
“17. At the outset, we refer to the ratio in the case of Naim Ahamed vs. State (NCT of Delhi ),
(2023) 15 SCC 385 whereby this Court had decided a similar matter, wherein allegedly, the
prosecutrix had also given her consent for a sexual relationship with the accused-appellant
therein, upon an assurance to marry. The prosecutrix, who was herself a married woman having
three children, had continued to have such a relationship with the accused-appellant, at least for
about five years till she gave the complaint. In the conspectus of such facts and circumstances,
this Court had observed as under:
“21. The bone of contention raised on behalf of the respondents is that the prosecutrix
had given her consent for sexual relationship under the misconception of fact, as the
accused had given a false promise to marry her and subsequently he did not marry, and
therefore such consent was no consent in the eye of the law and the case fell under
Clause Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a
difference between giving a false promise and committing breach of promise by the
accused. In case of false promise, the accused right from the beginning would not have
any intention to marry the prosecutrix and would have cheated or deceived the

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prosecutrix by giving a false promise to marry her only with a view to satisfy his lust,
whereas in case of breach of promise, one cannot deny a possibility that the accused
might have given a promise with all seriousness to marry her, and subsequently might
have encountered certain circumstances unforeseen by him or the circumstances beyond
his control, which prevented him to fulfil his promise. So, it would be a folly to treat
each breach of promise to marry as a false promise and to prosecute a person for the
offence under Section 376. As stated earlier, each case would depend upon its proved
facts before the court.”
8. Citing the above referred judgment it is submitted by Mr. Ali that there is no
ingredient to establish a case u/s 376 IPC as well as 420 IPC and in the same
time there cannot be a case u/s 120(B) against a single person. It is very
evident from the FIR and the Charge Sheet itself that the respondent no.
2/informant had physical relationship with the accused/petitioner out of her own
will and consequences of such a relationship with the accused/petitioner was
well known to her and thus it is purely a consensual relationship and the
allegation of false promise of marriage also does not arise as she is a married
lady with two children. Mr. Ali accordingly submitted that it is a fit case wherein
the entire proceeding may be quashed by invoking power u/s 528 of BNSS.
9. Mr. Ahmed, the learned counsel appearing for the informant/respondent no.
2 submitted in this regard that it is not only a case that he used to come to the
house of the informant and had physical relationship/sexual intercourse with her
but, form the FIR itself it is also seen that she was confined in a room for about
15 days and had sexual intercourse only with a false promise of marriage and
she gave the consent only for the misconception of fact. Out of said relationship
she also gave birth to a child. Thus, prima facie a case is disclosed against the
accused/petitioner to file Charge Sheet as well as to take cognizance against
him. He further submitted that the learned Trial Court below had taken
cognizance by applying his judicial mind and on perusal of the record. However,
the petitioner will get an ample opportunity to place his defence at the time of

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framing charge as well as at the time of hearing. As a prima facie case reveals
against the accused/petitioner, there cannot be any reason to set aside and
quash the entire proceeding by invoking the inherent power u/s 528 of BNSS
and hence the same is liable to be rejected.
10. In that context Mr. Ahmed also relied on decision of Division Bench of the
Supreme Court, reported in 2025 Live Law (SC) 880 wherein the Apex Court
had given some deadline to determine the veracity of a prayer for quashing u/s
528 BNSS corresponding to Section 482 of Cr.PC. Para 20 of the judgment reads
as under:-
“ 20: The following steps should ordinarily determine the veracity of a prayer for
quashing, raised by an accused by invoking the power vested in the High Court under
Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable,
and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused would rule out the
assertions contained in the charges levelled against the accused, i.e., the material is
sufficient to reject and overrule the factual assertions contained in the complaint, i.e.,
the material is such as would persuade a reasonable person to dismiss and condemn
the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused has not been refuted
by the prosecution/complainant; and/or the material is such that it cannot be justifiably
refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of
the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, the judicial conscience of the High
Court should persuade it to quash such criminal proceedings, in exercise of power
vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing
justice to the accused, would save precious court time, which would otherwise be
wasted in holding such a trial (as well as proceedings arising therefrom), especially
when it is clear that the same would not conclude in the conviction of the accused.

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[(See: Rajiv Thapar & Ors. v. Madan Lal Kapoor (Criminal Appeal No. 174 of 2013)]

11. He also relied on another decision of the Supreme Court, reported in 2025
Live Law (SC) 1080 wherein also it has been expressed the view that the
Court is not required to conduct a mini trial and need not to make upon an
enquiry as to genuineness of the allegation namely FIR/complaint. The Court is
to only consider whether the allegation in the FIR discloses the commission of a
cognizable offence.
“22. On the aspect of the powers of the Courts under Section 482 of the Cr.PC, it is settled that
at the stage of quashing, the Court is not required to conduct a mini trial. Thus, the jurisdiction
under Section 482 of the Cr.PC with respect to quashing is somewhat limited as the Court has to
only consider whether any sufficient material is available to proceed against the accused or not.
If sufficient material is available, the power under Section 482 should not be exercised.
23. This Court in the case of State of Odisha v. Pratima Mohanty and Others10 held that:
“8.2. It is trite that the power of quashing should be exercised sparingly and with
circumspection and in rare cases. As per the settled proposition of law while examining an
FIR/complaint quashing of which is sought, the court cannot embark upon any enquiry as to the
reliability or genuineness of allegations made in the FIR/complaint. Quashing of a
complaint/FIR should be an 10 (2022) 16 SCC 703 exception rather than any ordinary rule.
Normally the criminal proceedings should not be quashed in exercise of powers under Section
482 CrPC when after a thorough investigation the charge-sheet has been filed. At the stage of
discharge and/or considering the application under Section 482 CrPC the courts are not required
to go into the merits of the allegations and/or evidence in detail as if conducting the mini-trial.
As held by this Court the powers under Section 482 CrPC are very wide, but conferment of
wide power requires the court to be more cautious. It casts an onerous and more diligent duty on
the Court.”
12. Accordingly, Mr. Ahmed submitted that it is not at all a fit case to set aside
and quash the criminal proceeding at this stage and the petition is liable to be
dismissed.
13. Mr. Sharma, the learned Addl. PP submitted in this regard that from the
Charge Sheet it is seen that the accused is shown as an absconder and bailable
warrant has been issued against him. He did not appear before the learned Trial

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Court below in spite of receiving the summons. More so, he submitted that case
is at a very premature stage wherein only cognizance has been taken against
the present petitioner and he will get the opportunity at the time of
consideration of charge as well as trial to raise those issues and also can pray
for his discharge. But, at this stage it is seen that a prima facie case is revealed
against the present petitioner on the statement made in the FIR itself and hence
the petition for quashing may not be considered at this stage.
14. In that context Mr. Sharma also relied on decision of the Apex Court passed
in case of State of Haryana v. Bhajan Lal, reported in 1992 Supple. 1 SCC
335 . Mr. Sharma accordingly submitted that is is not a fit case to set aside and
quash the entire criminal proceeding at this stage by invoking power u/s 528 of
BNSS.
15. Hearing the submissions made by learned counsel for both sides, I have
also perused the case records and order of cognizance, vis-à-vis the Charge
Sheet against the present petitioner. From the Charge-Sheet it reveals that
during the entire investigation the accused/petitioner has never cooperated and
hence he is shown as an absconder in the Charge Sheet. It is an undisputed fact
that the victim was a married woman but, the accused promised to marry her
and with such inducement he had sexual intercourse with her. It is further the
allegation of the respondent no. 2/informant that initially she never accepted
the relationship but as he had threatened her, even to commit suicide and also
promised to marry her and with that misconception of fact only she engaged
herself with physical relationship with the accused/petitioner. Further, it is the
allegation of the informant that he took her to his own house, kept confined for
15 days in his house and had physical relation/sexual intercourse with her only
with the false promise of marriage. It is a fact that the victim was a married

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woman but, in spite of that she developed a relationship with the
accused/petitioner only for the promise of marriage. Thus, it is seen that the
respondent no. 2/informant could bring a prima facie case against the petitioner
that he had sexual intercourse with her only with a false promise of marriage
and her consent was also taken with such misconception of fact. However, at
this stage it cannot be stated that whether he genuinely had an intention to
marry her or it was only with the intention to cheat her, he made a false
promise of marriage. But, prima facie it is seen that it was within his knowledge
that the informant/respondent no. 2 is a married woman and in spite of that he
made a promise to marry her which prima facie reveals that even knowing the
consequence of such promise, he developed a relationship with the victim/the
informant with the false promise of marriage. The learned Trial Court below also
took the cognizance of this case only finding a prima facie case to his
satisfaction.
16. The Hon’ble Apex Court in the case of Delhi Race Club (1940) Limited
and Others v. State of Uttar Pradesh & Another , reported in (2024) 10
SCC 690 , in paragraphs 12, 13 & 14 of the judgment it has been held as
under:-
“12. It is by now well settled that at the stage of issuing process it is not the duty of the Court to
find out as to whether the accused will be ultimately convicted or acquitted. The object of
consideration of the merits of the case at this stage could only be to determine whether there are
sufficient grounds for proceeding further or not. Mere existence of some grounds which would
be material in deciding whether the accused should be convicted or acquitted does not generally
indicate that the case must necessarily fail. On the other hand, such grounds may indicate the
need for proceeding further in order to discover the truth after a full and proper investigation.
13. If, however, a bare perusal of a complaint or the evidence led in support of it shows
essential ingredients of the offences alleged are absent or that the dispute is only of a civil
nature or that there are such patent absurdities in evidence produced that it would be a waste of
time to proceed further, then of course, the complaint is liable to be dismissed at that stage only.
14. What the Magistrate has to determine at the stage of issue of process is not the correctness

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or the probability or improbability of individual items of evidence on disputable grounds, but
the existence or otherwise of a prima facie case on the assumption that what is stated can be true
unless the prosecution allegations are so fantastic that they cannot reasonably be held to be true.
[See : D.N. Bhattacharjee v. State of West Bengal . ”
17. 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

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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 wreaking
vengeance on the accused and with a view to spite him due to private and
personal grudge.”
18. In the instant case it is seen that on the plain reading of the complaint/FIR
itself a prima facie case reveals against the accused/petitioner and hence it
cannot be held that there is no prima facie case against the present
accused/petitioner at the face value of the FIR for quashing or setting aside the
criminal proceeding instantly. Further, it is a very pre-matured stage and the
learned Magistrate only took cognizance of the case finding prima facie
materials against the accused/petitioner and by prima facie satisfied from the
materials available in the case records. But, the charge is yet to be framed in
the present case and the charge may not framed under section where the case
is charge-sheeted or cognizance is taken by the learned Trial Court below. The
learned Trial Court below has not framed the charge by applying judicial mind
and hence it may not be held that the charges can be framed according to the
section under which it has been charge-sheeted or cognizance has been taken
by learned Court below.

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19. So, considering all these aspects of the case, materials available in the case
record as well as the statement made in the complaint/FIR, this Court is of the
opinion that it is not a fit case to set aside and quash the entire criminal
proceeding i.e. the PRC Case No. 407/2024 pending before the learned JMFC
Barpeta and the Charge Sheet No. 03/2024 dated 28.01.2024 u/s
120(B)/420/376 IPC filed against the present petitioner at this stage by invoking
the inherent power u/s 528 of BNSS.
20. Accordingly, the present petition stands dismissed and disposed of.

Sharmil
a Das
Sarkar
Digitally signed by Sharmila Das Sarkar
DN: c=IN, o=Personal,
postalCode=781005, l=Kamrup Metro,
st=Assam, street=House No 27 Christian
Basti, Dispur, Dispur Assam India 781005
Micro Gym, title=2736,
2.5.4.20=c9084fbea146a0355c872b8a1f9
2b9033471836998cbf83e30f11fcc6ddd4
593,
serialNumber=36cfb08e0b51e270eadc7
a95babe60f2889c30c65872c5ba85f1b37
aab1f95a5,
[email protected],
cn=Sharmila Das Sarkar
Date: 2026.08.28 12:34:06 +05'30'
JUDGE
Comparing Assistant