Gauhati High Court
Renubala Ghosh And Anr vs The State Of Assam And Anr on 23 April, 2026
Page No.# 1/18
GAHC010136492023
2026:GAU-AS:5549
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./614/2023
RENUBALA GHOSH AND ANR
W/O LATE HARBHAJAN GHOSH
R/O HILL LINE COLONY
WARD NO. 1,
BADARPUR TOWN,
P.S. BADARPUR,
DIST. KARIMGANJ, ASSAM
2: SMT. LILA SAHA
W/O DULAL CH. SAHA
R/O BADARPURGHAT
P.S. BADARPUR
DIST. KARIMGANJ
ASSA
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SRI MORON KUMAR GHOSH
S/O LATE HARENDRA KUMAR GHOSH
R/O SHALEBARI
SREENAGAR
P.O. BADARPUR
DIST. KARIMGANJ
ASSAM
PIN NO. 788806
Advocate for the Petitioner : MS. R CHOUDHURY, MRS. S ROY
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Advocate for the Respondent : PP, ASSAM, N HASAN(R-2),F. SHAHIN,P SINGH(R-2),MR A
HUSSAIN(R-2),MR. B K SEN (R-2),MS. U BARUAH (R-2),MR. T U LASKAR (R-2)
:::BEFORE:::
HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA
Date on which judgment is reserved :N/A
Date of pronouncement of judgment : 23.04.2026
Whether the pronouncement is of the
Operative part of the judgment : NAWhether the full judgment has been
Pronounced : YesJudgment & Order(CAV)
(Sanjeev Kumar Sharma,J)Heard Ms. R Choudhury, learned counsel for the petitioner and Mr. B.K.
Sen, learned counsel for the respondent.
2. This criminal petition has been instituted seeking quashing of the order
dated 11.01.2023 passed by the learned Additional Chief Judicial Magistrate,
Karimganj in G.R. Case No. 198/2020 (PRC 90/2023) by which the learned
Additional Chief Judicial Magistrate, Karimganj took cognizance of the offence
under Section 447/427/294/34 IPC against the petitioners as well as for
quashing of all the subsequent orders passed by the order dated 11.01.2023, by
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the Learned Additional C.J.M. Karimganj, in the said case.
3. The Opposite party No.2/Respondent lodged an FIR before the Badarpur
Police Station against the present petitioners alleging that on 21/01/2020 at
about 12.30 p.m. the accused persons trespassed into the tilla land possessed
by the complainant situated at Santi Niketan Road and damaged the trees and
had tried to erect bamboo fencing. On protest by the complainant, the accused
persons tried to kill him and used slang language. It was also mentioned in the
FIR that regarding the disputed land, a case is pending before the Hon’ble
Gauhati High Court and there is a status quo order.
4. On the basis of the said FIR, the case was registered as Badarpur Police
Station case No. 26/2020 under Section 447/427/294/34 IPC.
5. On the basis of the FIR, the Police Started investigation of the case and
submitted chargesheet against the present petitioners under Section
447/427/294/34 IPC. On receipt of the case’ record from the learned Chief
Judicial Magistrate, the learned Additional Chief Judicial Magistrate, Karimganj
took cognizance of the offence vide order dated 11/01/2023 under Section
447/427/294/34 IPC against the petitioners and issued summons to them.
6. The complainant & 6 ors as plaintiffs had instituted a suit vide T.S. No.
Page No.# 4/18
136/1996 against the present petitioners before the learned Court of Civil
Judge, (Jr.Div)-II, Karimganj praying for right title, interest and confirmation of
possession of the suit land (which is also the land mentioned in the aforesaid
FIR along with other reliefs and also for permanent injunction. The brief facts of
the plaintiffs case is that their predecessor Late Harendra Kumar Ghosh,
purchased the suit land by. a registered sale deed dated 08.10.1974 executed
by the owner of the suit land, namely Binoy Bhushan Mazumder. They are
accordingly in possession of the suit land from the time of their predecessors by
constructing their residential houses over the suit land. The vendor of the
predecessor of the plaintiffs, Binoy Bhushan Mazumdar, purchased the suit land
by a registered sale deed dated 07.01.1974 executed by the predecessors of the
defendant nos. 1 & 2, namely late Hari Bhajan Ghosh. On the other hand,
executed a registered kabuliyat dated 30.12.1972 in respect of the suit land in
favour of the proprietor of the suit land, namely. Matin Uddin Ahmed Choudhury,
and accordingly the predecessor of the defendant nos. 1 and 2 were in
possession of the suit land.
7. The case of the present petitioners as defendants is that the defendant
nos. 1 & 2 were the owner of the suit land by virtue of jote right purchased by
their predecessor from Sachindra Nath Bhattacharjee vide Registered Document
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dated 06/12/1969, got possession of the land and his name was recorded as
tenant during the last settlement operation. The predecessor of the defendant
nos. 1 & 2 also executed Kabuliyat vide Document No.3894 dated 30/12/1972 in
favor of the landlord and had been in continuous possession of the suit land by
growing fruit bearing trees including other tress over the suit land. The
defendant nos. 1 & 2 were in need of money and accordingly they executed a
bainama (Agreement) with the defendant no. 3 for sale of the suit land and
accordingly the defendants prayed for dismissal of the suit.
8. The petitioners beg to state that the learned trial Court vide Judgment and
Decree dated 19.12.2000 decreed the suit and the present petitioners being
aggrieved preferred T.A. No. 4 of 2000 before the Court of the learned Civil
Judge, (Senior Division), Karimganj who allowed the appeal by setting aside the
Judgment and decree of the trial Court. The plaintiffs then preferred RSA No.
24/2007 before the High Court and during the pendency of appeal, the plaintiffs
preferred an application under Order XLI Rule 27 CPC to adduce additional
evidence so as to mark the sale deed dated 07.01.1974 as exhibit. The High
Court remanded the case to the learned First Appellate Court and vide judgment
and decree dated 21.08.2018, the first appeal was dismissed. Being aggrieved
by the Judgment and Decree dated 21.08.2018, the present petitioners
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preferred Regular Second Appeal being RSA No. 275/2019 which is pending
before this Court.
9. The petitioners beg to state that the opposite party no. 2 during the
pendency of the Regular Second Appeal tried to take possession of the suit land
by illegally entering into the suit land on 09.07.2019, thereby cutting jungle and
their tilla type garden i.e. the suit land. When the care taker of the petitioners
protested to the illegal activities of the opposite parties, then they threatened
with dire consequences. Finding no other alternative, the petitioners filed ejahar
before the concerned police station on 15.07.2019, informing the activities of
the opposite party no. 2. Although the FIR was filed but the Police did not
register the same on the ground which was informed by the Police to the
petitioners that since the contents of the FIR discloses Civil wrong and Civil
proceeding is pending before the Hon’ble High Court, criminal proceeding would
not lie. On the other hand, the Opposite party No. 2 also filed a FIR on
21.09.2019, subsequent to the filing of the FIR of the petitioner but the FIR of
the Opposite Party no. 2 was registered by the Police as Badarpur P.S. Case No.
296 under Section 143/447/427/506 IPC against the petitioners.
10. The petitioners beg to state that under the said situation, they approached
before the High Court by filing an application under order 39 Rule 1 & 2 read
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with Section 151 of the Code of Civil Procedure, 1908. The application was
numbered as I.A.(C) No. 3391/2019. The High Court on 19.12.2019, was
pleased to issue notice upon the opposite parties returnable on 08.01.2020 and
directed both the parties to maintain status quo. After passing of the Order
dated 19.12.2019, the opposite party no. 2 lodged the instant FIR on
21.01.2020 and this time the Police personnel registered the FIR and started
investigation.
11. The petitioners beg to state that the Opposite party no. 2 then filed one
application being I.A.(C) No. 2320/2020 alleging that the petitioners violated the
status quo order passed on 19.12.2019. The High Court on perusal of the FIR of
the petitioners as well as the FIR of the opposite party no. 2 vide order dated
28.10.2021 disposed of the said injunction application with a direction to both
the parties to maintain status quo in respect of the suit land.
12. At this point it would be appropriate to have a look at the FIR of the
present case, which was lodged on 21.01.2020. The relevant portion of the said
FIR is quoted herein below.
“Sir,
I have the honour to state that on 20.01.2020, Monday at about 12.30 pm, the
accused persons trespassed into tilla type land in our possession inherited from our
deceased father situated at Jhum Basti, Shanti Niketan Road and forcibly cut down the
trees and tried to take possession of the land and to put bamboo fencing. When I
Page No.# 8/18resisted their activities, they tried to beat me and used filthy languages. I did not take
action due to the fear of life and breach of public tranquility.
It is to be mentioned here that a case is pending before the Hon’ble High Court
in respect of the tilla land and in the said case status order is passed.
It appears that the accused persons are trying to make chaos and take
possession of the aforesaid tilla land illegally and as such me and my family members
are feeling insecurity towards life and wealth.”
13. The case was investigated into and resulted in a charge sheet, and the
learned Additional Chief Judicial Magistrate took cognizance of the offences
under sections, 447/427/294/34 IPC against the present petitioners.
14. The learned counsel for the petitioners submitted that there is a long
history of civil litigation between the parties in respect of the same suit land
which is mentioned in the FIR, and the dispute between the parties is entirely of
a civil nature and the present FIR has been lodged only to harass the petitioners
with a view to provide a color of criminality to the dispute between the parties.
It is also submitted that both the petitioners are aged ladies above 70 and 60
years of age and the petitioner No. 2 is also a cancer patient, and it is highly
improbable that they committed the alleged offence and allowing criminal
proceedings to continue against them would be an abuse of the process of the
court.
In support of her submissions, the learned counsel for the petitioner has
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relied upon the decision of the Hon’ble Apex Court in Dr. Sonia Verma
&AnrVs The State of Haryana & Anr reported in 2024 0 INSC 227,
wherein it has been held as follows:
“14. in the considered opinion of this Court, the dispute herein, which
forms the genesis of the criminal proceedings initiated by Respondent No.
2 is entirely civil in nature i.e., whether the Appellants are in lawful
possession of the Suit Property or, in essence, whether the RSD is valid.
To that extent, the Appellants have already taken recourse to the
appropriate civil remedy to establish their claim before the Civil Court. The
grievance of Respondent No. 2 i.e., whether the RSD is forged and
fabricated is an issue that will be considered by the Civil Court while
making its determination.
15. A closer examination of the surrounding facts and circumstances
fortifies the conclusion that an attempt has been made by the Respondent
No. 2 to shroud a civil dispute with a cloak of criminality.The following
aspects of the case are pertinent to note: (i) Respondent No. 2 registered
the Subject FIR subsequent to the filing of the Civil Suit and the filing of
FIR No. 372/2022 by the Appellants; (ii) the chain of sale deeds produced
by the Appellants contain identical descriptions of the Suit Property and
yet Respondent No. 2 has pursued criminal action only against the
Appellants and Sher Singh and not against Babu Lal and her husband; (iii)
Respondent No. 2 has failed to contest the present matter before this
Court; (iv) the admitted position that the Appellants were bonafide in their
payment of rent before their alleged purchase of the Suit Property.
16. This Court in Paramjeet Batra v. state of Uttarakhand & Ors., Criminal
Appeal No. 2069 of 2012 has expounded on the scope of exercise of
power under Section 482 CrPC whilst dealing with similar matters:
“7. While exercising its jurisdiction under Section 482 of the Code
the High Court has to be cautious. This power is to be used
sparingly and only for the purpose of preventing abuse of the
process of any court or otherwise to secure ends of justice. Whether
Page No.# 10/18a complaint discloses a criminal offence or not depends upon the
nature of facts alleged therein. Whether essential ingredients of
criminal offence are present or not has to be judged by the High
Court. A complaint disclosing civil transactions may also have a
criminal texture. But the High Court must see whether a dispute
which is essentially of a civil nature is given a cloak of criminal
offence. In such a situation, if a civil remedy is available and is, in
fact, adopted as has happened in this case, the High Court should
not hesitate to quash criminal proceedings to prevent abuse of
process of court.”
15. Reliance has also been placed on another decision of the Hon’ble Apex
Court in S.N. Vijaya Lakshmi Vs State of Karnataka reported in2025 0
INSC 917, wherein the Hon’ble Apex Court has held as follows:
“33. Having heard learned senior counsel for the parties and after going
through the material on record, the issue that emerges is as to whether
the criminal case against the appellants should proceed. This has to be
examined from two angles. Firstly, as to whether any criminal offence in
the background of the factual position is made out to justify criminal
proceedings against the appellants? Secondly, whether on the same cause
of action, based on the afore-noted facts, both civil and criminal
proceedings can simultaneously go on?’
42. Coming to the second question i.e., whether civil and criminal
proceedings both can maintained on the very same set of allegations qua
the same person(s), the answer stricto sensu, is that there is no bar to
simultaneous civil and criminal proceedings. If the element of criminality is
there, a civil case can co-exist with a criminal case on the same facts. The
fact that a civil remedy has already been availed of by a complainant, ipso
facto, is not sufficient ground to quash an FIR, as pointed out, inter alia,
in P Swaroopa Rani v M Hari Narayana, (2008) 5 SCC 765 and Syed Aksari
Hadi Ali Augustine Imam v State (Delhi Admn.), (2009) 5 SCC 528. The
Page No.# 11/18obvious caveat being that the allegations, even if having a civil flavour to
them, must prima facie disclose an overwhelming element of criminality.
In the absence of the element of criminality, if both civil and criminal
cases are allowed to continue, it will definitely amount to abuse of the
process of the Court, which the Courts have always tried to prevent by
putting a stop to any such criminal proceeding, where civil proceedings
have already been instituted with regard to the same issue, and the
element of criminality is absent. If such element is absent, the
prosecution in question would have to be quashed. In this connection,
Paramjeet Batra v State of Uttarakhand, (2013) 11SCC 673 can be
referred to:
’12…. Whether a complaint discloses a criminal offence or not
depends upon the nature of facts alleged therein. Whether essential
ingredients of criminal offence are present or not has to be judged
by the High Court. A complaint disclosing civil transactions may also
have a criminal texture. But the High Court must see whether a
dispute which is essentially of a civil nature is given a cloak of
criminal offence. In such a situation, if a civil remedy is available
and is, in fact, adopted as has happened in this case, the High Court
should not hesitate to quash the criminal proceedings to prevent
abuse of process of the court. (emphasis supplied).”
16. Countering the aforesaid submissions, the learned counsel for the
respondent then submitted that when an offence is made out on a plain reading
of the FIR, and more so when, after investigation, a charge sheet has been
submitted against the petitioners, there is no scope for invoking the power of
the Court under section 482 CrPC to quash the criminal proceedings or the
orders of taking cognizance.
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17. The learned counsel has referred to the decision of the Apex Court in the
case ofP. Swaroopa Rani Vs M. Hari Narayana ALIAS Hari Babu reported
in 2008 5 SCC 765, wherein it was held as follow:
“11. It is, however, well settled that in a given case, civil proceedings and
criminal proceedings can proceed simultaneously. Whether civil
proceedings or criminal proceedings shall be stayed depends upon the
fact and circumstances of each case. (See M.S. Sheriff Vs. State of
Madras1, Iqbal Singh Marwah Vs. Meenakshi Marwah 2 and Institute of
Chartered Accountants of India Vs. Assn. of Chartered Certified
Accountants“.
18. Reference is also made to the decision of the Apex Court in the case of
Kathyayani Vs Siddharth P.S. Reddy & Ors reported in 20250 INSC 818,
wherein it was held as follows:
“19. We now come to the issue of bar against prosecution during the
pendency of a civil suit. We hereby hold that no such bar exists against
prosecution if the offences punishable under criminal law are made out
against the parties to the civil suit. Learned senior counsel Dr. Menaka
Guruswamy has rightly placed the relevant judicial precedents to support
the above submission. In the case of K. Jagadish vs.Udaya Kumar G.S.
and Another, (2020) 14 SCC 552 this Court has reviewed its precedents
which clarify the position. The relevant paragraph from the above
judgment is extracted below:
“8. It is thus well settled that in certain cases the very same set of
facts may give rise to remedies in civil as well as in criminal
proceedings and even if a civil remedy is availed by a party, he is
not precluded from setting in motion the proceedings in criminal
law.”
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20. In Pratibha Rani vs. Suraj Kumar and Another, (1985) 2 SCC 370 this
Court summed up the distinction between the two remedies as under:
“21….There are a large number of cases where criminal law and civil law
can run side by side. The two remedies are not mutually exclusive but
clearly coextensive and essentially differ in their content and
consequence. The object of the criminal law is to punish an offender who
commits an offence against a person, property or the State for which the
accused, on proof of the offence, is deprived of his liberty and in some
cases even his life. This does not, however, affect the civil remedies at all
for suing the wrongdoer in cases like arson, accidents, etc. It is an
anathema to suppose that when a civil remedy is available, a criminal
prosecution is completely barred.”
21. The aforesaid view was reiterated in Kamaladevi Agarwal vs. State of
W.B. and Others, (2002) 1 SCC 555:
“17. In view of the preponderance of authorities to the contrary, we are
satisfied that the High Court was not justified in quashing the proceedings
initiated by the appellant against the respondents. We are also not
impressed by the argument that as the civil suit was pending in the High
Court, the Magistrate was not justified to proceed with the criminal case
either in law or on the basis of propriety. Criminal cases have to be
proceeded with in accordance with the procedure as prescribed under the
Code of Criminal Procedure and the pendency of a civil action in a
different court even though higher in status and authority, cannot be
made a basis for quashing of the proceedings.”
“23. The above precedents set by this Court make it crystal clear that
pendency of civil proceedings on the same subject matter, involving the
same parties is no justification to quash the criminal proceedings if a
prima facie case exists against the accused persons.”
19. What emerges from the aforesaid decisions cited on behalf of the rival
parties is that the power under section 482 of the CrPC is to be exercised
sparingly and while considering an application under the aforesaid provision, the
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High Court is required to examine whether the essential ingredients of a criminal
offence are present or not and care should be taken to see that a matter which
is essentially of a civil nature has not been sought to be artificially given a cloak
of criminality. There is no cavil with the proposition that on the same set of
facts, both civil as well as criminal proceedings may be instituted, depending on
the facts and circumstances of the case, and pendency of civil proceedings on
the same subject matter involving the same parties is not sufficient justification
to quash criminal proceedings if a prima facie criminal case exists against the
persons. Both proceedings can proceed simultaneously depending upon the
facts and circumstances of each case.
20. In the case of Pradeep Kumar Kesarwani Vs The State of Uttar
Pradesh & Anr reported in 2025 LiveLaw(SC) 880, the Apex Court held as
follows:
“17. The duty of the court in cases where an accused seeks quashing of
an FIR orproceedings on the ground that such proceedings are manifestly
frivolous, or vexatious,or instituted with an ulterior motive for wreaking
vengeance was delineated by this Courtin Mohammad Wajid v. State of
U.P., reported as 2023 SCC OnLine SC 951. We may referto the following
observations:
“34. At this stage, we would like to observe something important.
Whenever an accused comesbefore the Court invoking either the
inherent powers under Section 482 of the Code of
CriminalProcedure (CrPC) or extraordinary jurisdiction under Article
Page No.# 15/18226 of the Constitution to get the FIRor the criminal proceedings
quashed essentially on the ground that such proceedings
aremanifestly frivolous or vexatious or instituted with the ulterior
motive for wreaking vengeance,then in such circumstances the
Court owes a duty to look into the FIR with care and a little
moreclosely. We say so because once the complainant decides to
proceed against the accused withan ulterior motive for wreaking
personal vengeance, etc., then he would ensure that
theFIR/complaint is very well drafted with all the necessary
pleadings. The complainant would ensurethat the averments made
in the FIR/complaint are such that they disclose the
necessaryingredients to constitute the alleged offence. Therefore, it
will not be just enough for the Court tolook into the averments
made in the FIR/complaint alone for the purpose of ascertaining
whetherthe necessary ingredients to constitute the alleged offence
are disclosed or not. In frivolous orvexatious proceedings, the Court
owes a duty to look into many other attending
circumstancesemerging from the record of the case over and above
the averments and, if need be, with duecare and circumspection try
to read in between the lines. The Court while exercising its
jurisdictionunder Section 482 of the CrPC or Article 226 of the
Constitution need not restrict itself only to thestage of a case but is
empowered to take into account the overall circumstances leading
to theinitiation/registration of the case as well as the materials
collected in the course of investigation.Take for instance the case on
hand. Multiple FIRs have been registered over a period of time. Itis
in the background of such circumstances the registration of multiple
FIRs assumes importance,thereby attracting the issue of wreaking
vengeance out of private or personal grudge as alleged.”
21. As stated by the petitioners in the present petition, the respondents herein
as plaintiffs had instituted the title suit against the present petitioners before the
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court of the Civil Judge Junior Division-II Karimganj, praying for right title,
interest and confirmation of possession of the suit land way back in the year
1996. The present FIR is of the year 2020 alleging criminal, trespass, damage to
property, etc.
22. On the date of the alleged offence, i.e., on 20.01.2020, the present
petitioners along with 3-4 persons allegedly criminally trespassed into the land
of the complainant at Jumbasti, which was possessed by the father of the
informant, and forcibly cut down the trees and tried to take possession of the
land and put up bamboo fencing and with the intention to capture the land of
the informant.
23. Therefore, the facts alleged in the present FIR are not the same as the
ones on which the respondents as plaintiffs had instituted the aforesaid title suit
seeking declaration of right, title, interest and confirmation of possession of the
suit land. Therefore, the instant criminal proceedings cannot be said to have
arisen on the same set of facts in respect of which a civil proceeding was
instituted.
24. As far as the falsity of the allegations made in the FIR is concerned, that is
a matter to be decided by the learned trial court and as to the question of
whether the present FIR has been actuated by malice with the sole purpose of
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wreaking vengeance upon the petitioners, it is noticed that, as per the petitioner
own statements of the petitioners made in the present criminal petition, they
approached before the High Court by filing an application under order 39 Rule 1
& 2 read with Section 151 of the Code of Civil Procedure, 1908. The application
was numbered as I.A.(C) No. 3391 of 2019. The High Court on 19.12.2019
issued notice upon the opposite parties returnable on 08.01.2020 and directed
both the parties to maintain status quo. After passing of the order dated
19.12.2019, the opposite party no. 2/respondent, lodged the instant FIR on
21.01.2020 and this time the Police personnel registered the FIR and started
investigation. The petitioners beg to state that the Opposite party no.
2/respondent then filed one application being I.A.(C) No. 2320/2020 alleging
that the petitioners violated the status quo order passed on 19.12.2019. The
High Court on perusal of the FIR of the petitioners as well as the FIR of the
opposite party no. 2/respondent vide order dated 28.10.2021 disposed of the
said injunction application with a direction to both the parties to maintain status
quo in respect of the suit land.
25. Therefore, the fact that the respondents herein had filed the IA No.
2320/2020 alleging that the petitioners violated the status quo order passed on
19.12.2019 points to the circumstances that the FIR lodged against the
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petitioners out of which the present petition has arisen is not entirely baseless.
26. There is, of course, no doubt in the mind of this court that based on the
allegations made in the present FIR, taken at their face value, it cannot be said
that no criminal offence whatsoever has been made out. Furthermore, it also
cannot be said that the allegations made therein are inherently improbable
merely on account of the fact that the accused therein that is the present
petitioners are aged ladies, inasmuch as it is alleged that they had trespassed
into the land of the respondent along with 3-4 other persons. In any case, that
is an aspect of the case that is to be determined at the trial.
27. Having regard to the discussion made above, I am of the view that the
present is not a fit case for invocation of the powers of this court under section
482 CrPC.
28. Accordingly, the petition is held to be devoid of merit and is accordingly
dismissed.
JUDGE
Comparing Assistant