Debasish Bhattacharjee vs The State Of Assam And Anr

Page No.# 1/10
GAHC010033122026

2026:GAU-AS:15887
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./247/2026
DEBASISH BHATTACHARJEE
S/O LATE KUSHADEV BHATTACHARJEE, R/O VILL. SAIKIA CHUBURI,
DEKARGAON RAI BAHADUR PATH, P.S. TEZPUR, MOUZA HALESWAR,
DIST. SONITPUR, ASSAM,
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM.
2:NIKHILESH BARUAH
S/O SRI BHUBAN BARUAH
R/O VILL. GHORAMARI
P.O. GHORAMARI
P.S. TEZPUR
MOUZA GHORAMARI
DIST. SONITPUR
ASSAM
Advocate for the Petitioner : MR. N N JHA, MR M U KHAN,DIKSHITA DAS
Advocate for the Respondent : PP, ASSAM, MR. A GOSWAMI (R-2),MR. J M GOGOI (R-2),MR. B
D GOSWAMI (R-2)

BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
Date on which judgment was reserved : 21.08.2026

Date of pronouncement of judgment : 16.10.2026

Page No.# 2/10

Whether the pronouncement is of the : Yes
operative part of the judgment?

Whether the full judgment has been : NA
pronounced?

JUDGMENT AND ORDER CAV
( )

Heard Mr. N. N. Jha, learned counsel for the petitioner, Ms. S. H. Bora,
learned Additional Public Prosecutor for the State, and Mr. B. D. Goswami,
learned counsel, assisted by Ms. J. M. Gogoi, learned counsel appearing for
respondent No. 2.
2. The petitioner has approached this Court under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, seeking quashing of the order dated
22.09.2025 passed by the learned Court of the Judicial Magistrate First Class,
Tezpur, in C.R. Case No. 130/2025, whereby cognizance was taken against him
under Sections 49/61(2)/127(4)/127(6) of the Bharatiya Nyaya Sanhita, 2023.
3. Respondent No. 2, the complainant, is the husband of accused No. 1,
Archana Bhattacharjee , whereas the petitioner, Debasish Bhattacharjee , is
her elder brother and was arrayed as accused No. 3 in the complaint case. The
dispute arises out of matrimonial and child-custody proceedings between the
complainant and Archana . By an order dated 28.03.2024 passed in the custody
proceedings, Archana was permitted to visit their minor child every Sunday and
was required to return him to the complainant before sunset on the same day.

The complaint alleges that on 06.10.2024, Archana took the child from the
complainant’s custody but did not return him as directed.

Page No.# 3/10

4. In connection with the complaint, the statement of the complainant was
recorded under Section 223 of the BNSS and two witnesses were examined on
oath under Section 225 thereof. A police report was also called for regarding the
alleged FIR. The order sheets, however, reflect a discrepancy in the date of the
FIR referred to in the police query: the order dated 12.03.2025 refers to an FIR
dated 07.10.2024, whereas the query refers to one dated 07.02.2024. The
accused persons subsequently submitted Show-Cause Replies denying their
involvement and referring to the matrimonial dispute and the pending custody
proceedings.
5. On consideration of the complaint, the statements recorded on oath and
the show-cause replies, the learned Court passed the impugned order dated
22.09.2025. Cognizance was taken against Archana under Sections 127(4) and
127(6) of the BNS and against the petitioner under Sections
49/61(2)/127(4)/127(6) of the BNS. In doing so, the learned Court specifically
noted that the petitioner had allegedly been seen with Archana and the minor
child in a car on the date they went missing. Cognizance was not taken against
the other accused persons for want of prima facie material against them.

6. Being aggrieved by the aforesaid order, the petitioner has approached this
Court seeking its quashing insofar as it relates to him, contending that the
materials on record do not disclose the essential ingredients of the offences
alleged against him and that the learned Court failed to properly appreciate the
materials before taking cognizance.
7. Mr. N. N. Jha, learned counsel for the petitioner, submits that the
allegations in the complaint primarily concern the act attributed to Archana of
taking the minor child from the complainant’s custody and not returning him in

Page No.# 4/10
accordance with the order passed in the custody proceedings. No specific act
has been attributed to the petitioner demonstrating that he instigated,
intentionally aided or participated in the alleged act. It is contended that the
petitioner’s relationship with Archana and his alleged presence with her and the
child in a car on the relevant date cannot, without further material connecting
him to the alleged offences, establish his criminal liability.
8. Learned counsel for the petitioner further submits that the invocation of
Sections 49 and 61(2) of the BNS is unsupported by any material indicating
abetment or an agreement to commit an illegal act. Similarly, no specific act of
wrongful confinement or participation therein has been attributed to the
petitioner so as to attract Sections 127(4) and 127(6) of the BNS.
9. Placing reliance on Mehmood Ul Rehman vs. Khazir Mohammad
Tunda and Others, (2015) 12 SCC 420 , learned counsel submits that
taking cognizance requires judicial application of mind to the allegations and the
materials placed before the Court.
10. Per contra, Mr. B. D. Goswami, learned counsel appearing for respondent
No. 2, opposes the petition and submits that the impugned order was passed
after due consideration of the complaint, the statements recorded on oath and
the replies submitted by the accused persons. It is contended that the allegation
that the petitioner was seen with Archana and the minor child in a car on the
very date of their disappearance constitutes a relevant circumstance which,
when considered with the other materials on record, justifies allowing the
criminal proceedings to continue.
11. Learned senior counsel further submits that the present proceedings
cannot be converted into a trial for determining the truth or otherwise of the

Page No.# 5/10
allegations. At the stage of considering a prayer for quashing, the Court is
required to examine whether the allegations, taken at face value, disclose a
prima facie case and not whether the prosecution will ultimately succeed.

12. Learned counsel for the respondent has placed on Central Bureau of
Investigation vs. Aryan Singh and Others, 2023 LiveLaw (SC) 292
and Abhishek Singh vs. Ajay Kumar and Others, 2025 LiveLaw (SC)
675 in support of the submission that a mini-trial or a detailed evaluation of the
evidence is impermissible while exercising the power to quash criminal
proceedings.
13. Ms. S. H. Bora, learned Additional Public Prosecutor for the State, submits
that the matter may be considered in accordance with law and leaves the
matter to the discretion of this Court.
14. I have considered the submissions advanced by the learned counsel for the
parties and perused the impugned order and the materials made available on
record.
15. The principal question requiring consideration is whether the allegations
and materials relied upon by the learned Court disclose a prima facie basis for
proceeding against the petitioner under Sections 49/61(2)/127(4)/127(6) of the
BNS.
16. While exercising jurisdiction under Section 528 of the BNSS, this Court is
not required to undertake a detailed assessment of the evidence or determine
the guilt or innocence of the petitioner. At the same time, the power to quash
criminal proceedings may be exercised where the allegations, even if accepted
at face value, do not disclose the essential ingredients of the offences alleged
against the person sought to be prosecuted. The question is not whether the

Page No.# 6/10
prosecution will ultimately succeed, but whether the allegations and the
materials relied upon provide a legally sustainable basis for proceeding against
the petitioner.

17. The impugned order records that Archana allegedly took the minor child
from the complainant’s custody on 06.10.2024 and failed to return him in
accordance with the order dated 28.03.2024 passed in the custody proceedings.
The learned Court also relied upon the circumstance that the petitioner was

allegedly seen with Archana and the child in a car on the date they went
missing. This circumstance cannot be ignored merely because the petitioner is
related to Archana nor can it automatically establish his criminal liability. Its
significance must be assessed in the context of the allegations and the statutory
ingredients of the offences invoked against him.
18. The allegation against must be distinguished from the material
Archana
available against the petitioner. The complaint concerns the alleged removal and
non-return of the child by Archana . The petitioner’s relationship with her, by
itself, does not establish criminal liability. Equally, his alleged presence with

Archana and the child on the relevant date is a circumstance that requires
consideration. However, the material must disclose a connection between that
circumstance and the petitioner’s alleged participation in the offences for which
cognizance has been taken. Criminal liability cannot be inferred merely from
association with a person alleged to have committed an offence, without
material connecting the person concerned with the commission of that offence.
19. Section 49 of the BNS deals with punishment for abetment where the act
abetted is committed in consequence of the abetment and no express provision
is made for its punishment. For this provision to apply, the materials must

Page No.# 7/10
disclose, at least prima facie , conduct amounting to abetment and a
connection between such conduct and the act alleged to have been committed.
In the present case, the impugned order does not identify any specific act on
the part of the petitioner by which he instigated, intentionally aided or otherwise
abetted the alleged act of Archana . The mere observation that he was seen
with and the child in a car does not, without further particulars
Archana
connecting him to the alleged act, sufficiently disclose the essential elements of
abetment.
20. Similarly, Section 61(2) of the BNS prescribes punishment for criminal
conspiracy. The essential requirement is an agreement between two or more
persons to commit an illegal act or an act which is not illegal by illegal means.
Such an agreement may, in an appropriate case, be inferred from the
surrounding circumstances, and direct evidence of conspiracy is not invariably
necessary. Nevertheless, the materials must disclose circumstances capable of
connecting the person sought to be prosecuted with the alleged agreement. In
the present case, the impugned order does not refer to any specific material
indicating that the petitioner had agreed with Archana or any other person to
commit the alleged offence. His alleged presence with Archana and the child,
standing alone, does not sufficiently disclose the ingredient of criminal
conspiracy.
21. Sections 127(4) and 127(6) of the BNS prescribe distinct forms of
aggravated wrongful confinement. Section 127(4) applies where a person is
wrongfully confined for ten days or more, whereas Section 127(6) applies where
the manner of confinement indicates an intention that the confinement of the
person or the place of confinement, should not be known to a person interested
in the person confined or to a public servant. To sustain cognizance against the

Page No.# 8/10
petitioner under these provisions, the materials must disclose a prima facie
basis for his participation in wrongful confinement and the circumstances
attracting the relevant provision. The impugned order does not identify any
specific act by the petitioner showing that he wrongfully confined the child,
prevented the child from being returned or participated in confinement of the
nature contemplated under either provision. The allegation that he was seen in
a car with Archana and the child on the date they went missing, without further
particulars connecting him to wrongful confinement, does not by itself disclose
the ingredients of these offences.
22. This Court is conscious of the settled principle that, at the stage of taking
cognizance, the Court is not expected to conduct a meticulous examination of
the evidence or record findings on matters that must be determined at trial.
Likewise, while considering a petition for quashing, the Court must refrain from
weighing the prosecution evidence as though deciding the case finally. However,
these limitations do not preclude the Court from examining whether the
allegations and the materials relied upon disclose the basic ingredients of the
offences alleged against the petitioner. The requirement of a prima facie case
cannot be satisfied merely by referring to a circumstance without examining
whether the allegations, taken at face value, connect that circumstance with the
statutory ingredients of the offences invoked.
23. In Mehmood Ul Rehman (supra), the Supreme Court emphasized that
the order taking cognizance must disclose sufficient indication of the
Magistrate’s application of mind to the allegations and the materials placed
before the Court. The decisions in Central Bureau of Investigation (supra)
and Abhishek Singh (supra), caution against conducting a mini-trial while
considering a prayer for quashing. These principles must be applied

Page No.# 9/10
harmoniously. The Court must neither undertake a premature evaluation of the
prosecution evidence nor permit criminal proceedings to continue where the
allegations and materials, taken at face value, fail to disclose the essential
ingredients of the offences alleged against the person concerned.
24. Applying the aforesaid principles to the present case, the principal
circumstance relied upon against the petitioner is his alleged presence with
Archana and the minor child in a car on the date they went missing. The
impugned order does not identify any further specific allegation or material
explaining how this circumstance establishes abetment, criminal conspiracy or
participation in wrongful confinement. Although the circumstance may warrant
consideration along with other relevant material, the order does not disclose the
necessary connection between the petitioner’s alleged conduct and the
ingredients of the four offences for which cognizance has been taken. If the
complaint and the statements recorded on oath contain no further material
connecting the petitioner with the alleged offences, the circumstance recorded
in the impugned order, by itself, would not furnish a sufficient basis for
sustaining cognizance against him under the aforesaid provisions.
25. The conclusion in the preceding paragraph is confined to the allegations
and materials actually available on record. The Court is not called upon at this
stage to determine the truth or otherwise of the allegations against Archana
nor to express any opinion on the merits of the underlying matrimonial or child-
custody dispute. The consideration is limited to whether the materials disclose
the essential ingredients of the offences alleged against the petitioner. It is also
necessary to distinguish between a case in which the allegations, taken at face
value, do not disclose an offence and a case in which the Court is merely being
invited to assess the sufficiency or reliability of evidence that must be tested at

Page No.# 10/10
trial.
26. In view of the aforesaid discussion, this Court is of the considered opinion
that the materials presently disclosed do not provide a sufficient prima facie
basis for continuing the criminal proceedings against the petitioner under
Sections 49/61(2)/127(4)/127(6) of the BNS. Accordingly, the instant criminal
petition is allowed and the order dated 22.09.2025 passed by the learned Court
of the Judicial Magistrate First Class, Tezpur, in C.R. Case No. 130/2025, is
quashed to the extent it takes cognizance against the petitioner, Debasish
Bhattacharjee , under the aforesaid provisions, together with the consequential
proceedings arising therefrom insofar as they relate to him.
27. It is made clear that this order shall not affect the proceedings against the
other accused persons, which shall continue in accordance with law. Nothing
stated herein shall be construed as an expression of opinion on the merits of the
allegations against them.
28. The petition stands disposed of accordingly.

JUDGE

Jumbi Bam, Private Secretary