Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 126 (GAU)

Moinul Islam Choudhury v. State of Assam

2009-02-19

H.N.SARMA

body2009
JUDGMENT H.N. Sarma, J. 1. The inherent power of the Court is prayed to be exercised by the accused-Petitioner praying for setting aside the impugned judgment and order passed by the learned Sessions Judge, Karimganj in Crl. Rev. No. 35(3)/2008 which was analogously heard along with Crl. Rev. No. 37(3)/2008 filed by the informant/Respondent No. 2, whereby and whereunder the order of discharge of the accused from the offence of Section 384 IPC passed by the learned C.J.M. Karimganj in G.R. Case No. 899/2007 vide order dated 2.7.2008, was set aside. 2. I have heard Mr. A.M. Majumdar, learned Senior Advocate assisted by M. Nath for the accused/Petitioner and Mr. S.K. Medhi, learned Counsel appearing for the Respondent/informant. Mr. K. Munir, learned RP. appears on behalf of the Respondent No. 1, State of Assam. 3. An information under Section 154, Code of Criminal Procedure having been lodged with O.C. Karimganj Police Station, by the informant/Respondent against the Petitioner alleging commission of certain offences, police registered Karimganj Police Station Case No. 426/2007 under Sections354/506/384, IPC. Upon registration of the FIR, the law of investigation was' set into motion. 4. During the course of hearing the I/O recorded the statements of witnesses under Section 161, Code of Criminal Procedure and after completion of the investigation and having found a prima facie case, submitted charge/sheet against the accused-Petitioner under the aforesaid sections of law. After lodging of the FIR, the accused/Petitioner unsuccessfully approached this Court for releasing him on pre-arrest bail by filing B.A. No. 4076/2QP7 under Section 438, Code of Criminal Procedure. The accused-Petitioner also challenged the order dated 2.7.2008 passed by the learned C.J.M. Karimganj by which warrant of arrest was issued against him in Crl. Revn. No. 77/2008 which was also dismissed. Upon receipt of the charge-sheet and on appearance of the accused, copies of the necessary papers and documents as referred under Section 173, Code of Criminal Procedure submitted by the I/O along with the charge-sheet were furnished to the accused-Petitioner and both prosecution and defence was heard in the matter of framing charge and the learned C.J.M., Karimganj vide order dated 2.7.2008 framed charge against the Petitioner under Section 384/506 IPC but discharged from the offence of Section 384, IPC as according to the learned C.J.M. there was no prima facie material to attract the offence under Section 384, IPC. The aforesaid order dated 2.7.2008 was challenged by both the informant as well as the accused-Petitioner by filing two criminal revisions viz. Criminal Rev. Nos. 35(3) and 37(3) of 2008 before the learned Sessions Judge, Karimganj. The learned Addl. District and Sessions Judge (FTC) Karimganj to whom the cases were transferred for disposal heard both the criminal revision petitions analogously and vide judgment and order dated 17.9.2008 disposed of these two revision petitions holding that there is no material on record to frame charge under Section 354 IPC and accordingly the charge framed under Section 354, IPC by the learned Magistrate was set aside. However, the learned Magistrate found that there is material to attract the provision of Section 384, IPC and accordingly directed the trial Court to frame charge under Section 384, IPC remanding the matter back to the learned C.J.M. challenging a part of the aforesaid judgment i.e. directing to frame charge under Section 384, IPC against the accused-Petitioner, the present petition under Section 482, Code of Criminal Procedure is filed by the accused. The informant has not challenged the order of quashing of the charge under Section 354, IPC. 5. During the course of arguments, Mr. Majumdar, learned senior counsel challenging part of the impugned judgment and order wherein the learned revisional Court though held that while discharging the accused the learned C.J.M. from the liability under Section 384, IPC, no ground has been recorded and there is no sufficient materials to attract Section 354, IPC against the Petitioner, submits that the aforesaid findings and observations of the learned revisional Court regarding non recording of reasons for discharging the accused from charge under Section 384, IPC is not borne out of record. In the order dated 2.7.2007 passed by the learned C.J.M. whereby the accused-Petitioner was discharged from Section 384, IPC, the learned Magistrate has noted that on perusal of the papers and documents submitted under Section 173, Code of Criminal Procedure and upon consideration of the rival submissions made by the learned P.P. and the learned defence counsel it is seen that there is no prima facie material to attract the offence under Section 384, IPC and this being the finding, the reasons have been adequately recorded in the order dated 2.7.2008 in the said manner and as such the impugned order dated 17.9.2008 suffers from apparent illegality, requiring interference under the inherent power of the Court. 6. Mr. Medhi refuting the aforesaid contentions submits that there is no discussion about the materials available before the Court to justify the impugned order and that there having ample materials to attract the offence of Section 384, IPC against the accused, the learned revisional Court has rightly revised the order passed by the learned C.J.M. which requires no interference. It is also contended that this petition is also barred under Section 397(2), Code of Criminal Procedure. The learned Public Prosecutor has also endorsed the same view. 7. I have given my anxious consideration to the rival submissions made by the learned Counsels for the appearing parties. 8. In view of the above facts situation, the point that requires consideration is as to whether the impugned order directing to frame charge under Section 384, IPC against the accused-Petitioner setting aside the order of discharge passed by the learned CJM vide order dated 2.7.2008 is justifiable under the law and whether it requires interference in exercise of the inherent power of the Court. 9. The offence alleged against the Petitioner being triable by the trial Court as warrant procedures, falls under the provisions of Chapter 19 of the Cr PC would be attracted in the instant case so far it relates to the framing of charge. 9. The offence alleged against the Petitioner being triable by the trial Court as warrant procedures, falls under the provisions of Chapter 19 of the Cr PC would be attracted in the instant case so far it relates to the framing of charge. Upon completion of investigation when charge-sheet is submitted against an accused by the investigating agency, materials such as the first information report recorded under Section 154, Code of Criminal Procedure and the extract of the statements of the witnesses recorded under Section 161(3), Code of Criminal Procedure whom the prosecution proposes to examine in its support the documents and materials seized during investigation are required to be submitted before the Court. This has to be done in compliance of the provisions of Sections 207 and 238, Code of Criminal Procedure. Thereafter both the prosecution and defence is to be heard in the matter of framing charges or discharging of the accused. 10. Section 239 of the Code of Criminal Procedure mandates that if the Magistrate considers the charge against the accused to be groundless he shall discharge the accused and record the reasons for doing so. As on analysis of Section 239, Code of Criminal Procedure disclose that when an accused is discharged from an offence it is mandatorily required to record reasons by the Magistrate for passing an order of such discharge. The scheme of the Cr PC in the matter of framing charge against the accused is that the Magistrate is to consider the documents and papers including the statements of the witnesses submitted in compliance of the provisions of Section 173, Code of Criminal Procedure by the I/O at the time of submitting the charge-sheet. The purpose of providing the copies of those documents is to provide an opportunity to the accused to make necessary submissions before the learned Magistrate that the documents and papers so submitted did not disclose commission of any such offences as might be alleged against the accused even if those are accepted to be correct at that stage. Thus discharging of the accused from offence by the Magistrate in exercise of power under Section 239 is not only a judicial one but also adjudicatory to some extent. Thus discharging of the accused from offence by the Magistrate in exercise of power under Section 239 is not only a judicial one but also adjudicatory to some extent. The Magistrate is to adjudicate upon the materials available before him, as referred to above, and to see, as to whether, there exists a prima facie case against the accused under the sections under which the accused is booked which is again subjected to proof during the course of trial by producing the witnesses and subjecting them to cross examinations by the defence. The effect of such discharge of the accused amounts to acquittal from the offences and recording reasons for discharging the accused from an offence is a mandatory requirement, to be complied with by the Magistrate. 11. In the instant case the learned Magistrate while discharging the accused from the offences under Section 384, IPC has stated that there was no prima facie material to attract the offence of Section384, IPC without discussing anything more. While examining that part of the order the learned revisional Court found from record that the statement of Samyal Acharjee, who was allegedly subjected to extortion, recorded under Section 161, Code of Criminal Procedure stated inter alia that the accused demanded Rs. 20,000/- from him to forward his pension paper and he paid Rs. 5,000/- and expressed his inability to pay more and that the accused said to him that unless Rs. 10,000/- is paid he would not forward his pension papers within 10 years. 12. To attract the provisions of Section 384, IPC against the accused the point that would required to be proved during the course of trial are that (a) the accused put the complainant in fear of some injury; (b) that such injury was either to the complainant or to some other person; (c) that the accused put the victim in such fear intentionally; (d) that the accused in the process induced the person so put in fear to deliver to some person some property immovable or movable or any valuable security or something which is convertible to valuable security when signed or sealed; and (e) that the accused did so intending to make either any wrongful gain to himself or to make any wrongful loss to another. 13. 13. Such intimidation by which the extortionist dishonestly victimized by the owner is to be distinguished under Section 384, IPC and such intimidation may be of different kind. 14. The term "injury" referred to under Section 384, IPC is defined under Section 44 of the IPC as follows. 15. The word injury denotes any harm whatever the injury illegally caused to any person, in body, mind, reputation or property. 16. The word "dishonestly" is defined under Section 24 of the IPC is defined as follows: 17. Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do thing. 18. "Wrongful gain" is again defined under Section 23 of the IPC as follows "Wrongful gain" is the gain by unlawful means of property to which the person gaining is not legally entitled. 19. The Petitioner herein serves as Upper Division Assistant in the office of the Deputy Inspector of Schools, Karimganj and he is a public servant. A "public servant" is subjected to certain conduct as defined under the relevant conduct rules. That apart, for doing certain official works a public servant is not authorized to demand any money from anybody. The statement of Mr. Shyamal Acharjee as recorded in the impugned judgment and considered by the Addl. Sessions Judge, prima facie, upon overall consideration, as indicated above, discloses constituting of facts in support of the commission of offence under Section 384, IPC, but the learned C.J.M. while discharging the accused from the said section has not discussed anything except stating that there are no prima facie material to attract the provision of Section 384 , IPC. The order passed by the learned Magistrate is absolutely devoid of any reason and the aforesaid statement is only a finding. There is wide gulf of difference beyond "reasons" and "findings" and findings must be required to be supported by reasons. This aspect was correctly appreciated by the learned Addl. Sessions Judge while passing the impugned judgment and order. 20. In view of the considerations and discussions made, above, I am of the considered opinion that the learned revisional Court has approached the matter in proper and correct perspective and has rightly interfered with the impugned order. The order does not suffers from any illegality, irregularity and/or impropriety requiring interference, that too in exercise of the inherent power of the Court. The order does not suffers from any illegality, irregularity and/or impropriety requiring interference, that too in exercise of the inherent power of the Court. The petition lacks merit and is dismissed accordingly. 21. The interim order dated 24.11.2008 stands vacated. Petition dismissed