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2005 DIGILAW 554 (GAU)

Ashutosh Choudhury v. State of Assam

2005-08-04

ANIMA HAZARIKA

body2005
JUDGMENT A. Hazarika, J. 1. By way of filing this revision petition under Section 397 read with Section 401 and 482 of the Code of Criminal Procedure, the Petitioners have prayed for quashing the order dated 5.7.99 and the charges dated 5.7.99. 2. Three accused have questioned the legality of the order dated 5.7.99 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 37/98 corresponding to Karimganj P.S. Case No. 363/96 (G.R. Case No. 824/96) framing charges under Sections 341/34, 326/34 and 307/34against two of the accused being accused No. 2 and 3 and under Section 109/341, 109/326 and109/307 I.P.C. against the Petitioner. 3. Charges have been framed by the learned Sessions Judge, Karimganj, holding that there are prima facie materials to warrant grounds for presuming that the accused persons have committed the offences under Sections as mentioned hereinabove. The learned Sessions Judge has come to the said conclusions while framing the charges, on the following materials on record viz: i) The first information report. ii) The police report dated 21.2.97 wherein name of 10 (Ten) witnesses were shown to have proved the case on behalf of prosecution along with seizure list and medical reports. iii) The statements of 5 (five) witnesses examined during the investigation. 4. According to the learned Counsel Mr. N. Choudhury, appearing on behalf of the Petitioners, the view, taken by the learned Sessions Judge, while framing the charges, are erroneous in as much as there are no definite material to show that they are involved in the alleged assault on Dr. N.C. Ghosh. The material placed before the Court under Section 173 of the Code of Criminal Procedure would show, that the accused were not named anywhere which can reasonably connect the accused Petitioners with the offence of guilt. There was no eye witnesses to the occurrence of assault on the person of the victim. There was no circumstantial evidences to connect the Petitioners with the alleged offence and the prosecution would not be able to prove the guilt of the accused. Therefore, to secure the justice, this court would exercise the inherent power under Section 482 of the Code of Criminal Procedure to prevent the abuse of the process of the Court. 5. The Code of Criminal Procedure in Chapter XVII, deals with charge. Therefore, to secure the justice, this court would exercise the inherent power under Section 482 of the Code of Criminal Procedure to prevent the abuse of the process of the Court. 5. The Code of Criminal Procedure in Chapter XVII, deals with charge. Section 221 of the Code provides that every charge under this code shall state the offence which the accused is charged of. The material in record would show that the learned Sessions Judge has prima facie satisfied that the prosecution has made out a case for trial and accordingly charges have been framed against the accused persons. Therefore, there is no illegality and/or any infirmity in the order impugned in the instant case. 6. Learned Counsel appearing for the Petitioners has referred two cases reported in (1979) 3 SCC 4 (Union of India v. Prafulla Kumar Samal and Anr.) and (2002) 2 SCC 135 (Dilawar Balu Kurane v. State of Maharashtra). This Court has considered the decision cited by the learned Counsel. The case referred to above relates to discharge as provided under Section 227 of the Code by Special Judge. There is no ambiguity on the above principles. In this instant case the record placed by the police as required under Section 173 of the Code before the Magistrate, who committed the case to the Sessions Judge and the Sessions Judge having satisfied that there are materials to proceed with against the accused Petitioners, has framed the charges. The contentions raised on behalf of the Petitioners before this Court would be available to the accused during trial. 7. In response Mr. B.S. Sinha, the Public Prosecutor submitted that the material placed under Section173 of the code would show that the Petitioners are involved in the offence, more particularly, the accused Shri Ashutosh Choudhury was a patient in the hospital and two boys were attending him and cannot be ruled out their involvement, since the victim had detected forged birth certificate issued by Girishganj Public Health Centre and the statements recorded during investigation would show that they were involved in the incident. Moreover, interference with order, framing charge under Section173 invoking inherent power under Section 482 and/or under Section 397, read with Section 401 of the Code, can be exercised only, by way of exception and power should be exercised only to do real and substantial justice, which is not the case in hand and prayed for dismissal of the revision petition. 8. To appreciate rival submissions, it would be necessary to take note of Section 173 of the Code and the evidences collected during the investigation along with the statements of witnesses, by whom the prosecution would establish the case against the Petitioners, charged under the aforementioned Sections. From the provisions of Section 173 of the Code, the investigating officer is required to produce all the relevant documents at the time of submitting the charge sheet. Considering the preliminary stage of prosecution and the context, in which the police officer is required to forward to the magistrate all the documents or the relevant extracts thereof, on which the prosecution proposes to rely, has also been furnished to the accused. Upon considering all the relevant documents the learned Sessions Judge has prima facie satisfied that a case has been made out against the Petitioners and accordingly framed charge against the Petitioners to which they pleaded not guilty and stands for trial. 9. Now the question that has been left out to be answered, as to whether the High Court in exercise of power under Section 397 read with Section 401 and 482 of the Code of Criminal Procedure can interfere with the order of framing of charge by the learned Sessions Judge against a finding of being prima facie satisfied to proceed with the case. The scope for interference with an order framing charge, in terms of Sections mentioned hereinabove of the Code is extremely limited. The recent decision reported in 2004 CriL.J. 3866 (State of Punjab v. Kasturilal and Ors.) is relevant for the purpose of deciding the case, the relevant portion of which is quoted hereunder: Exercise of power under Section 482 of the Code in a case of this nature is the exception and to 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. 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 may be exercised, namely, (i) to give effect to an order under the code (ii) to prevent abuse of the process of the court and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any flexible 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. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts whether civil or criminal, possesses, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the Section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised exdebito-justiac, to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuation of it amounts to abuse of the process of the court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuation of it amounts to abuse of the process of the court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. Reference can also be made to the cases mentioned hereunder, wherein the Apex Court has dealt with Section 482 of Code of Criminal Procedure and the Power of the High Court: a) AIR 1983 SC 67 : Municipal Corporation of Delhi v. Ram Kishan Rohtagi b) (1992) Supp. (1) SCC 335: State of Haryana and Ors. v. Bhajan Lal and Anr. c) (2002) 3 SCC 89 : State of Karnataka v. M. Devendrappa and Anr. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. (supra) reported in AIR 1983 SC 67 , at paragraph 10 of the judgment, the Apex Court Held as follows: 10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. In the case of State of Haryana v. Bhajan Lal (Supra), the Apex Court at para 103, held as follows: 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegation made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to at according to its whim or caprice. In the State of Karnataka v. M. Devendrappa and Anr. (Supra), the Apex Court held that, while exercising powers under Section 482 Code of Criminal Procedure, the Court does not function as Court of Appeal or Revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the test specifically laid down in the section itself. It is to be exercised ex-debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exist for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the court has power to prevent abuse. The Apex Court further held that it would be an abuse of the process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. The Apex Court relied upon the following decisions in the said case while making observations as above. 1) AIR 1960 SC 494: R.P. Kapur v. State of Punjab 2) AIR 1990 SC 494 : Dhanalakshmi v. R. Prasanna Kumar 3) AIR 1992 SC 604 : State of Haryana v. Bhajan Lal 4) (1995) 6 SCC 194 : Rupan Deol Bajaj v. Kanwar Pal Singh Gill. 10. Admittedly, the criminal proceeding has been initiated by private person under the law and on receipt of the said information, the police has performed the statutory duties enjoined upon them, on completion of investigation as required under Section 173 of the Code has submitted the charge sheet and the proceeding is pending before the Court of Sessions where charges have been framed which have jurisdiction to deal with the proceeding. 11. 11. In view of the observation made by the Apex Court, as well as after hearing the parties and upon perusal of the materials on record, this Court is not inclined to quash the charge framed against the Petitioners in exercise of power under Section 482 of the Code. This Court do not express any opinion on the merits of the case and the learned Sessions Court is directed to proceed with the trial in accordance with law, immediately, on receipt of the case records, considering the facts, that the case relates to the year 1996. 12. In the result the revision petition is dismissed. The Registry is directed to transmit the case records forthwith. Petition dismissed.