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2004 DIGILAW 332 (GAU)

Raghvendra Awasthi v. State of Assam

2004-05-12

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. M.Z. Ahmed, the learned Counsel for the Petitioner and the learned P.P. 2. This is an application under Section 397 / 401 read with Section 482 Code of Criminal Procedure, for quashing of the charge sheet/proceeding in Sessions Case No. 7/99 pending in the Court of Sessions Judge, Golaghat arising out of Golaghat P.S. Case No. 140/97 (G.R. Case No. 350/97). 3. The Petitioner before us Sri Raghvendra Awasthi was the Superintendent of Police at Golaghat at the relevant time and the matter relates to alleged custodial death of one Jyoti Lohar some time in the month of October, 1995. The matter was brought to the notice of this Court by filing a Civil Rule. Thereafter, an enquiry was conducted by the District and Sessions Judge, Golaghat and a direction was issued by this Court to O/C, Golaghat P.S. to register a case and investigate the matter. Golaghat P.S. Case No. 140/97 was registered and after investigation police submitted charge sheet against as many as 13 accused persons including the Petitioner Under Section 120(B) / 365 / 343 /325 / 302 / 201 IPC. The broad allegation is that Jyoti Lohar was picked up by police under the alleged direction of the Petitioner and thereafter, he was wrongfully confined, assaulted and tortured as a result of which Jyoti Lohar died in custody and the dead body was disposed of by throwing in the river. 4. The quashing of the proceeding has been sought on the ground that the prosecution story is highly improbable and there was a considerable delay in lodging the FIR which was lodged after two years of the incident. Mr. M.Z. Ahmed, the learned Counsel for the Petitioner submits that the proceeding in the Civil Rule was conducted behind his back and no notice was issued to the Petitioner and the report of the Sessions Judge, Golaghat no way implicates or involves the Petitioner. It may be mentioned here that the trial has not yet commenced and the matter is still at the stage of consideration of charge. However, the decision in the Civil Rule has not been challenged before this Court and the direction was to register a case and make investigation only. Hence, the decision in the Civil Rule is not material for the purpose of deciding the merit of the case. However, the decision in the Civil Rule has not been challenged before this Court and the direction was to register a case and make investigation only. Hence, the decision in the Civil Rule is not material for the purpose of deciding the merit of the case. The question of alleged delay in lodging the FIR shall be considered by the trial Court as and when raised before it. 5. The law regarding quashing of the complaint or FIR or charge sheet at the threshold was considered by the Apex Court in the case of R.P. Kapur v. State of Punjab reported in AIR 1960 SC 866 wherein three broad guidelines were laid down. The matter was again considered by the Apex Court in the case of State of Haryana v. Bhajan Lal reported in AIR 1992 SC 604 wherein as many as seven guidelines were laid down in the matter This was reiterated in a recent case of State of Karnataka v. M. Devendrappa and Anr. reported in (2002) 3 SCC 89 . In M. Devendrappa (supra) the Apex Court envisaged three circumstances under which inherent jurisdiction of the Court can be exercised and in para 6 of the said case, it was observed as follows: Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction maybe exercised, namely, (i) to give affect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. 6. As stated above, observations made in the earlier Civil Rule are not at all relevant for the purpose of framing or non framing of the charge. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. 6. As stated above, observations made in the earlier Civil Rule are not at all relevant for the purpose of framing or non framing of the charge. Likewise, the question of delay in lodging the FIR shall have to be considered at the proper time. The matter for framing of charge is lying with the trial Court and in this revision petition, we do not think it proper to usurp the said power by considering the merit of the matter. The statements or decisions raised in the present revision petition are not covered by any of the guidelines as laid down in the case of Choudhury Bhajan Lal (supra). We also do not propose to consider the merit of the matter lest it may prejudice the either side. At this stage, we find no merit to quash the charge sheet as it can not be said that the charge sheet is frivolous or vexatious. The question whether there is prima facie case to frame charge or not is left with the trial Court to consider and decide after hearing both sides as required under the law. It is further provided that the trial Court shall not be influenced in any manner by any of the observations made by this Court either in this revision petition or in the earlier Civil Rule while considering the question of framing of charge. 7. With the above observations, the revision petition stands disposed of.