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2013 DIGILAW 283 (GAU)

Md. Hasmat Ali v. State of Assam

2013-05-07

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. Heard Mr. S.A. Ahmed, learned counsel, appearing for the petitioner, and Mr. P.S. Deka, learned Addl. Senior Government Advocate, appearing on behalf of the State respondents. We have perused the writ petition, the affidavit-in- opposition and the materials on record. 2. From the pleadings of the parties, materials on record and the submissions, made on behalf of the parties concerned, what transpires is, in brief, thus: 3. On 09.10.2012, at about 3:00 p.m., the present petitioner lodged a First Information Report (in short, 'FIR')/at Fatasil Ambari Police Station, alleging inter alia, that on that day (i.e., 09.10.2012), at 7:00 a.m., he had received an information, on telephone, from Dhirenpara, Itarbhata, that a dead body had been found by the people of the locality near Bharalupar and that the said dead body was suspected to be the dead body of the informant's brother, whereupon the informant (i.e., the petitioner herein) went to Bharalupar and, on finding that the said dead body was of his brother, Ajmat Ali, identified the said dead body accordingly. In the FIR, the petitioner also expressed his suspicion that his brother had been killed and left at the place aforementioned. Based on the FIR, Fatasil Ambari Police Station Case No. 453/2012, under Section 302, IPC, was registered against unknown person. 4. Before lodging of the FIR aforementioned, Fatasil Ambari police received, on telephone, an information from 'Dial 100', police control room, that a dead body of an un-identified male person had been found lying near Bharalupar. On receiving the information, police went to the said place and found one dead body lying there. Though an attempt was made by the police to ascertain the identity of the dead person, the dead body could not be, initially, identified by anyone. Later on, however, the dead body was identified as that of the said Ajmat Ali. U/D Case No. 37/2012, dated 09.10.2012, was registered, at Fatasil Ambari Police Station accordingly and, then, inquest was held over the said dead body and the dead body was sent to the Guwahati Medical College and Hospital, Guwahati, for post-mortem examination. 5. Investigation into the case, which had been lodged by the petitioner, was made and during investigation, the Department of Forensic Medicine and Toxicology, Guwahati Medical College, Guwahati, gave their opinion that the said deceased died due to pulmonary tuberculosis. 6. 5. Investigation into the case, which had been lodged by the petitioner, was made and during investigation, the Department of Forensic Medicine and Toxicology, Guwahati Medical College, Guwahati, gave their opinion that the said deceased died due to pulmonary tuberculosis. 6. Thus, according to the Investigating Officer, the death, in the present case, was natural and not homicidal and, on completion of their investigation, police submitted a final report in the Court of the learned Chief Judicial Magistrate, Kamrup, Guwahati. 7. In view of the fact that the police has already submitted a final report on the ground that they have found no incriminating material against any person, we are of the view that this Court shall not usurp the magisterial power. We must, therefore, leave it to the Chief Judicial Magistrate to determine upon giving requisite notice to the informant, if the final report shall or shall not be accepted in terms of the provisions of Code of Criminal Procedure. 8. As far as the present writ petition, made under Article 226 of the Constitution of India, is concerned, no direction, in the facts and attending circumstances of the present case, can be issued to the police. 9. Situated thus, we close the writ petition and direct that the relevant record, along with the case diary, be sent back, forthwith, to the learned Chief Judicial Magistrate, Kamrup, Guwahati, for further appropriate action in accordance with law. 10. We, however, leave the petitioner with liberty to approach this Court, for appropriate order, in future, if so advised and if the situation so warrants. 11. Furnish also a copy of this order to the learned Government counsel for further appropriate action. No order as to costs.