Gauhati High Court
Md Nekibur Rahman And Anr vs Pompi Borah on 29 April, 2026
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GAHC010163992025
2026:GAU-AS:5927
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./914/2025
MD NEKIBUR RAHMAN AND ANR
SON OF LATE MOTIUR RAHMAN
R/O SILPUKHURI BAPUJI NAGAR
P.O. SILPUKHURI, P.S. CHANDMARI
DIST. KAMRUP (METRO), ASSAM.
2: MS. JILI UZIR
W/O MD. NEKIBUR RAHMAN
R/O SILPUKHURI BAPUJI NAGAR
P.O. SILPUKHURI P.S. CHANDMARI
DIST. KAMRUP (METRO)
ASSA
VERSUS
POMPI BORAH
D/O LATE APURBA KUMAR BORAH
R/O MEGHMALLAR APARTMENT, RUKMINI GAON, GUWAHATI, P.S.
DISPUR, P.O. KHANAPARA
P.O. KHANAPARA
DIST. KAMRUP, ASSAM,
PIN-781022
Advocate for the Petitioner : MR. D P BORAH, MR U GHOSH
Advocate for the Respondent : MR. V BORAH, MR. R J OJAH
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BEFORE
HON'BLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 29.04.2026.
Heard Mr. D.P. Borah, learned counsel for the petitioners. Also heard Ms. P.
Sarma, learned counsel for the respondent.
2. This petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita
[BNSS], 2023 is filed for setting aside and quashing of the proceedings in C.R.
Case No. 55/2025, pending in the Court of learned Sub-Divisional Judicial
Magistrate [S] No. 1, Kamrup (M) at Guwahati and the impugned order dated
23.05.2025, passed by the learned Trial Court upon the complaint lodged by the
respondent/informant as a Narazi Petition to a Final Report submitted by the
Investigating Officer of Gorchuk Police Station Case No. 196/2013.
3. The brief fact of the allegations made in the complaint are inter alia to the
effect that one Smti Y.P. Borah (present respondent) approached the petitioners
for purchasing the possessory right of a plot of land measuring 1 Katha, covered
by Dag No.1104/704 situated at village Paschim Baragaon, Mouza Jalukbari in
Kamrup (M) District from the present petitioners and accordingly the petitioner
No. 1 Md. Nekibur Rahman sold the possessory right of the said plot of land to
the respondent by executing an unregistered deed on 25.05.2011 and the
respondent/informant paid a consideration amount of Rs. 5,00,000/- (Rupees
five lakhs) to the petitioner No.1 and the petitioner No. 2 is the wife of the
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petitioner No.1.
4. Mr. Borah, the learned counsel for the petitioners submitted that the
respondent was aware at the time of purchasing the possessory right of the
aforesaid plot of land that the said plot of land was Government land and not
Myadi Patta land in as such the Patta No. of the said land was not mentioned in
the aforesaid unregistered deed dated 25.5.2011. Further, from the perusal of
the aforesaid deed dated 25.5.2011, it is apparent that the Petitioner No. 1,
projecting himself to be the possessor of the said plot of land, sold only the
possessory right to the respondent. However, quite surprisingly, the respondent
filed a complaint before the Prime Minister’s Office which was ultimately
registered as the Garchuk PS Case No. 196/2013, under Sections
120(B)/406/420/34 of the IPC, against the present petitioners and some other
persons. In the said complaint it was alleged that the complainant purchased a
plot of land from the Petitioner No. 1 but they were evicted from the said plot of
land by the Government. It was alleged that the Petitioner No.1 sold the said
plot of Government land to her by projecting himself to be the owner and
possessor of the said land.
5. After completion of investigation of the aforesaid Garchuk PS Case No.
196/2013, the Final Report was submitted vide No. 279/223 dated 31.7.2023,
inter alia stating that “the matter was civil dispute”. Being aggrieved by the said
Final Report, the respondent filed a complaint vide petition No.6159 against the
same and the learned SDJM (S) No.1, Kamrup (M) at Guwahati, on 17.01.2025
passed an order to register a complaint case and forwarded the record of the
case to the learned CJM, Kamrup (M) at Guwahati and finally the learned CJM,
Kamrup (M) at Guwahati vide order dated 24.01.2025, directed for registering
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the petition No.6159 as a complaint case and transferred the same to the Court
of learned SDJM No. 1, Kamrup (M) for trial and disposal. Accordingly, the CR
Case No. 55/2025 was registered and the learned SDJM No. 1, Kamrup (M) has
issued Notice to the opposite party vide order dated 29.01.2025.
6. The learned SDJM (S) No.1, Kamrup (M) at Guwahati without properly
appreciating the facts as well as laws involved, passed the impugned order
dated 23.05.2025, thereby taking congnizance against the petitioners under
Sections 120B/420/34 of the IPC and issued summons to the Petitioners. Being
aggrieved and dissatisfied with the impugned order dated 23.05.2025 passed by
the learned Trial Court, the petitioners has preferred this Criminal petition.
7. It is the pleaded case of the petitioners that the learned Trial Court failed
to appreciate the fact that the dispute among the parties is purely civil in nature
and as such the impugned order dated 23.5.2025, passed by the learned SDJM
(S) No.1, Kamrup (M) at Guwahati in C.R. Case No. 55/2025 is liable to be set
aside and quashed. It is further submitted by Mr. Borah, the learned counsel for
the petitioners that the learned Trial Court failed to appreciate the fact that the
respondent purchased only the possessory right of the aforesaid plot of land
knowing fully aware about the fact that the said plot of land was Government
land and not Myadi Patta land and in case if the said plot of land was a Myadi
Patta land, the Sale Deed would have been executed and registered by
obtaining necessary Sale Permission from the concerned authority and as such,
the order dated 23.5.2025, passed by the learned SDJM (S) No.1, Kamrup (M)
at Guwahati in C.R. Case No. 55/2025 is liable to be set aside and quashed.
8. Mr. Borah, the learned counsel for the petitioners further submitted that at
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the time of filing the Final Report also it has been held by the I.O. that the
dispute is purely civil in nature and hence, no criminality is found against the
petitioners, for which the Final Report was submitted by the I.O. in the Garchuk
PS Case No. 196/2013. Mr. Bora further submitted that the sale deed itself
speaks that it was a deed of transfer of possessory right and not the transfer of
any ownership right over the land as it was a Government land. At the time of
execution of the deed, the respondent was well aware that the land which was
to be transferred in their favour is a plot of Government land and not a plot of
Miyadi Patta land to transfer the ownership and as such, by the sale deed, only
the possessory right was sold to the respondent. It has also come to the notice
of the petitioners that the respondent also took steps to make the land into
Miyadi Patta land but as there was an order of eviction, the land could not be
transferred into Miyadi Patta land. He further submitted that it is purely a civil
dispute and by giving some criminal colour and only with a view to harass the
petitioners, the complaint was lodged against them, wherein the I.O. has
submitted Final Report, finding no case against the present petitioners. Thus, no
fraud is committed and the prima facie there cannot be any case to take
cognizance against the present petitioners, under Sections 120(B)/406/420/34
of the IPC. The respondent had purchased the land and fully aware that the
land is a Government land and after doing some formalities, the possessory
right of the land was only purchased by the respondent. But without considering
these aspects of the case, the learned Trial Court below after receiving the
Narazi Petition, took cognizance against the present petitioners under Sections
120(B)/406/420/34 of the IPC, vide its order dated 23.5.2025. He further
submitted that it is a fit case wherein the entire criminal proceeding and the
order of taking cognizance dated 23.05.2025, is liable to be set aside and
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quashed by invoking the power under Section 528 of the BNSS, 2023.
9. The respondent filed her affidavit in the present criminal petition and Ms.
Sarma, the learned counsel submitted that the petitioner No.2 was a friend
since her college days and the respondent expressed her willingness to
purchase a plot of land. Then the petitioner No.2 offered to sale the plot of land
possessed by the husband of the petitioner No.2, who is the petitioner No.1 in
the present case. Both the petitioners had approached the respondent and
convinced her to purchase the aforesaid plot of land and accordingly, by
executing a sale deed of possessory right, was sold to the mother of the
respondent on 25.05.2011 vide Instrument Serial No.751/2011, for a
consideration of Rs.5 lakh.
10. Ms. Sarma, the learned counsel for the respondent submitted in this
regard that the petitioners were well aware that there will be an eviction drive
and in spite of such knowledge, the possessory right of the land was sold to the
respondent and in good faith, it was purchased by the respondent. But soon
after the purchase of the land, the respondent could not even take possession
of the land, as the order of eviction was already notified by the Government.
The land was purchased only good faith and trust as both the parties are having
good relationship/friendship but at the time of execution of the sale deed, it was
within the knowledge of the petitioner that the land will be under eviction drive
by the Government. Thus, with a dishonest intention, the possessory right over
the land in question was sold to the petitioner and hence, there are ground for
proceeding against the accused/ petitioners and the learned Trial Court below
had rightly took cognizance against the present petitioners vide its order dated
23.05.2025. More so, the petitioners will also get the opportunity to agitate the
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matter at the time of framing of charge. As there is a prima facie case available
against the present petitioners, it is not at all a fit case to quash the entire
criminal proceeding by applying the power conferred under Section 528 of the
BNSS, 2023.
11. Hearing the submissions made by the learned counsel both sides, it is
seen that admittedly vide the sale deed, the possessory right of the land was
sold to the respondent. Now it is the case of the respondent that on the good
faith and trust on the petitioners, the respondent had purchased the possessory
right of the land but the petitioners were well aware of the fact that the eviction
drive will be conducted by the Government and in spite of such knowledge, with
a mala fide intention, the possessory right of the land was sold to the
respondent. But it is well settled position that only possessory right can be
purchased or sold in case of Government land and there cannot be transfer of
ownership of the land and the Government is always considered to be the
owner of the land unless it is transferred to Miyadi land.
12. Admittedly, at the time of transfer of the land, it was a
Government/Eksonia land and only the possessory right was sold to the
respondent. Though it is alleged that the petitioners had prior knowledge about
the eviction drive, but there is no such documents to arrive at a conclusion that
prior to the execution of the sale deed, any notice was received by the
petitioners for eviction proceeding. The respondent was also well aware that
Government land can be vacated at any time and there cannot be any transfer
of ownership of the land except the possessory right. Thus, the respondent
could not produce any documents or materials to held that the petitioners had
prior knowledge of eviction at the time of execution of the sale deed for transfer
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of the possessory right. It seems that the case is purely a civil in nature and
hence, the respondent can approach the appropriate Civil Forum for their
redressal. But considering the facts and circumstances of this case, it is seen
that the present case is basically civil in nature and the respondent could not
bring any such criminal liability to institute a criminal case against the present
petitioners at this stage.
13. The Hon’ble Supreme Court in the case of State of Madhya Pradesh vs.
Laxmi Narayan and others, reported in AIR 2019 SC 1296 had provided some
guidelines, while disposing a petition for quashing and in para 13 of the said
judgment, it has been held as under:
“13. Considering the law on the point and the other decisions of this Court on the point,
referred to hereinabove, it is observed and held as under:
i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for
the non-compoundable offences under Section 320 of the Code can be exercised having
overwhelmingly and predominantly the civil character, particularly those arising out of
commercial transactions or arising out of matrimonial relationship or family disputes and when
the parties have resolved the entire dispute amongst themselves;
ii) such power is not to be exercised in those prosecutions which involved heinous and serious
offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not
private in nature and have a serious impact on society;
iii) similarly, such power is not to be exercised for the offences under the special statutes like
Prevention of Corruption Act or the offences committed by public servants while working in
that capacity are not to be quashed merely on the basis of compromise between the victim and
the offender;
iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous
and serious offences and therefore are to be treated as crime against the society and not against
the individual alone, and therefore, the criminal proceedings for the offence under Section 307
IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in
exercise of powers under Section 482 of the Code, on the ground that the parties have resolved
their entire dispute amongst themselves. However, the High Court would not rest its decision
merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under
this provision. It would be open to the High Court to examine as to whether incorporation of
Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence,
which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it
would be open to the High Court to go by the nature of injury sustained, whether such injury is
Page No.# 9/11inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an
exercise by the High Court would be permissible only after the evidence is collected after
investigation and the charge sheet is filed/charge is framed and/or during the trial. Such
exercise is not permissible when the matter is still under investigation. Therefore, the ultimate
conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder
Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances
stated hereinabove;
v) while exercising the power under Section 482 of the Code to quash the criminal proceedings
in respect of non-compoundable offences, which are private in nature and do not have a serious
impart on society, on the ground that there is a settlement/compromise between the victim and
the offender, the High Court is required to consider the antecedents of the accused; the conduct
of the accused, namely, whether the accused was absconding and why he was absconding, how
he had managed with the complainant to enter into a compromise etc.”.
14. The Hon’ble Apex also expressed the same view in: Vinod Natesan vs.
State of Kerala and others , reported in (2019) 2 SCC 401, Randheer Singh vs.
State of Uttar Pradesh and others, reported in (2021) 14 SCC 626 and Kapil
Agarwal and others vs. Sanjay Sharma and others, reported in (2021) 5 SCC 524.
15. In the case of Vinod Natesan (Supra), in para 10 and 11 the Hon’ble Apex
Court had observed that:
“10. ……………….. Even considering the allegations and averments made in the FIR and the
case on behalf of the appellant, it cannot be said that the ingredients of Sections 406 and 420
are at all satisfied. The dispute between the parties at the most can be said to be the civil
dispute and it is tried to be converted into a criminal dispute. Therefore, we are also of the
opinion that continuing the criminal proceedings against the accused will be an abuse of
process of law and, therefore, the High Court has rightly quashed the criminal proceedings.
Merely because the original accused might not have paid the amount due and payable under
the agreement or might not have paid the amount in lieu of one month’s notice before
terminating the agreement by itself cannot be said to be a cheating and/or having committed
offence under Sections 406 and 420 IPC as alleged. We are in complete agreement with the
view taken by the High Court.
11. ……………. Even otherwise, as observed hereinabove, we are more than satisfied that there
was no criminality on part of the accused and a civil dispute is tried to be converted into a
criminal dispute. Thus to continue the criminal proceedings against the accused would be an
abuse of the process of law. Therefore, the High Court has rightly exercised the powers under
Section 482 CrPC and has rightly quashed the criminal proceedings. In view of the aforesaid
and for the reasons stated above, the present appeal fails and deserves to be dismissed and is
Page No.# 10/11accordingly dismissed.”
16. In the case of Randheer Singh (Supra), in para 32 & 33 the Hon’ble Apex
Court had observed that:
“32. In Kapil Agarwal (supra), this Court observed that Section 482 is designed to achieve the
purpose of ensuring that criminal proceedings are not permitted to generate into weapons of
harassment.
33. In this case, it appears that criminal proceedings are being taken recourse to as a weapon
of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not
disclose any offence so far as the Appellant is concerned. There is no whisper of how and in
what manner, this Appellant is involved in any criminal offence and the charge sheet, the
relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that
jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of
preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether
a complaint discloses criminal offence or not depends on the nature of the allegation and
whether the essential ingredients of a criminal offence are present or not has to be judged by
the High Court. There can be no doubt that a complaint disclosing civil transactions may also
have a criminal texture. The High Court has, however, to see whether the dispute of a civil
nature has been given colour of criminal offence. In such a situation, the High Court should not
hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra)
extracted above.
17. In the case of Kapil Agarwal and others (Supra), in para 18.1 the Hon’ble
Apex Court had observed that:
“18.1. As observed and held by this Court in catena of decisions, inherent jurisdiction
under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve
salutary purpose that criminal proceedings ought not to be permitted to degenerate into
weapon of harassment. When the Court is satisfied that criminal proceedings amount to an
abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of
inherent powers, such proceedings can be quashed.”
18. Considering the detail discussions made above, the nature of the offence
and also considering the view of the Apex Court, it is seen that the present case
in hand is purely civil in nature and the parties can approach the appropriate
Civil Forum for proper remedy and accordingly, it has been held that the entire
criminal proceeding including the order of taking cognizance dated 23.05.2025,
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is liable to be set aside and quashed by invoking the power under Section 528
of the BNSS, 2023. It is ordered accordingly.
19. With the above observation, this Criminal Petition stands allowed and
disposed of.
JUDGE
Comparing Assistant
