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2008 DIGILAW 801 (GAU)

Runu Borah v. Binod Borah

2008-11-19

AFTAB H.SAIKIA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. B.K. Kar, the learned Counsel for the Petitioner. None appears for the Respondent. 2. This application has been filed under Section 378(4) read with Section 482 of the Code of Criminal Procedure, 1973 (for short Code of Criminal Procedure) for granting Special Leave to prefer an appeal against the judgment and order dated 23.8.2004 passed by the Sub-Divisional Judicial Magistrate, Jorhat (hereinafter referred to as 'the learned Magistrate') in CR Case No. 270/03 acquitting the sole Respondent from the charge under Section 417 IPC. 3. Relevant portion of Section 378 Code of Criminal Procedure reads as under: 378. Appeal in case of acquittal. – (1)... (2)... (3) No appeal to the High Court under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5)... (6)... 4. This case has been filed on 2.5.2005 and since then the same has been pending. 5. Carefully perused the impugned judgment. 6. Having discreetly scrutinized the entire materials on record including the impugned judgment and also upon hearing Mr. Kar, the learned Counsel for the Petitioner, this Court proposes to dispose off this leave application today itself considering the period of pendency of this matter. 7. The facts in brief, as narrated in the complaint petition and as recorded in the impugned judgment itself, are that the Petitioner while working as a Nurse in Bon-gaon State Health Dispensary (for short, 'the Dispensary') in the year 1997, the Respondent also joined in the Dispensary. The relation between the Petitioner and the Respondent day by day became closer. In the course of time both of them developed intimacy each other to such an extent that the Respondent assured the Petitioner to marry her and on the basis of such false assurance of marriage, the Respondent did sexual intercourse with the Petitioner. In the process they were engaged in their frequent sexual intercourses as a result of which the Petitioner became pregnant but the Respondent caused her miscarriage by compelling her to take medicines. In the process they were engaged in their frequent sexual intercourses as a result of which the Petitioner became pregnant but the Respondent caused her miscarriage by compelling her to take medicines. Thereafter also the Respondent continued sexual intercourses with the Petitioner. Then the Petitioner gave her proposal to marry her. But some day later, the Respondent was transferred from the Dispensary to Sivasagar. On 19.12.2002 the petitioner went to the house of the Respondent. However, she was driven out by him and threatened with dire consequences. Later on she came to know that the Respondent was a married man and had two daughters. 8. On 31.3.2003, the instant complaint case was preferred alleging the above facts situation that occurred in the year 1997-98 before the trial Court. The Petitioner examined two witnesses including herself when the Respondent examined none. The plea of defence was complete denial. 9. The trial Court having meticulously scrutinized the evidence on record as well as after going through the relevant law came to the conclusion that the matter was time-barred. As according to the learned I Magistrate, the case was filed after expiry of the limitation period. To arrive at such finding, the learned Magistrate jointly considered the punishment prescribed under Section 417 IPC which was imprisonment for one year or fine or both, and the provision of Section 468 Code of Criminal Procedure which provides the limitation for filing such case. 10. For filing a case of present nature in terms of Section 468 Code of Criminal Procedure, the period of limitation is one year. But the instant complaint case was filed after expiry of four years. Even no explanation was given by the Petitioner in support of such inordinate delay in filing the complaint petition. Under such circumstances, the complaint was dismissed by the learned Magistrate acquitting the Respondent. 11. True it is that the application seeking special leave needs to be allowed if the High Court is of the firm view that the findings and conclusion of the trial Court could not be justified at all or that a question of great public or general importance or a substantial question of law is involved. 12. It is also established that the granting of special leave to appeal against acquittal is a discretionary power. 12. It is also established that the granting of special leave to appeal against acquittal is a discretionary power. But such power has to be exercised judiciously and the courts are not permitted to exercise the same at whims or fancies and arbitrarily. Arbitrariness has always been held to be anathema of judicial exercise of any power. 13. In view of the above facts situation and also having regard to the impugned judgment including accepted legal position, this Court is of the considered opinion that in the case at hand there is no infirmity or irregularity committed by the trial Court in acquitting the Respondent from the charge under Section 417 IPC. Nor we find involvement of any substantial question of law that requires this Court's consideration. Accordingly this Court does fully agree with the view expressed in the finding recorded by the trial Court and the impugned judgment and order being found to be a well reasoned one, needs no interference. 14. That being so, this Court does not find any cogent or plausible reason for granting Special Leave to prefer the appeal in question as sought for. The request is hereby rejected. 15. In the results, this Special Leave stands dismissed. Appeal dismissed.