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2013 DIGILAW 830 (GAU)

Rafique Uddin (M. D. ) v. State of Assam

2013-11-28

M.R.PATHAK

body2013
M.R. Pathak, J. Heard Mr. A. Inamuddin, learned counsel for the petitioner, Md. Rafique Uddin and Mr. B.S. Sinha, learned Addl. Public Prosecutor for the State. Brief fact of the case is that on 25.01.2012, one Ms. Farhana Begum (elder sister-in-law of the petitioner) lodged a complaint before the Sub-Divisional Judicial Magistrate (in short SDJM), Sankardev Nagar, Hojai, District-Nagaon, Assam stating that in the absence of her husband who is working in Kuwait, the petitioner Md. Rafique Uddin, entered her room on 15.01.2012 at around 1-1 1/2 p.m. breaking open the door, while she was fast asleep with her three minor children and tried to rape her by forcefully removing her clothes. While she tried to resist him, the accused attempted to kill her by grasping her by the neck. Somehow, when she could raise alarm, the accused fled away. On informing of the incident to her-in-laws, they chased her off from their house with her two younger children keeping her elder son with them. Becoming helpless, she took shelter in her parental house and prayed before the concerned authority to investigate the matter through Lanka Police and take appropriate action against the accused person. The said complaint was registered as G.R. Case No. 141/2012. The SDJM, Sankardev Nagar, Hojai forwarded the said complaint to the Officer-in-Charge of Lanka Police for necessary action. Accordingly on receipt of the same, police registered Lanka P.S. Case No. 24 of 2012 under Sections376/511/323/307 of Indian penal Code on 03.02.2012. After completion of the investigation of the said Lanka P.S. Case No. 153/2012. Police submitted the Charge Sheet before the SDJM, Sankardev Nagar, Hojai vide Charge Sheet No. 153/2012 dated 22.11.2012 against the petitioner under Sections448/376/511 IPC. Along with the said Charge Sheet, one copy of the medical report, one copy of the sketch map and a copy of order passed by this Court in AB 675/2012 granting bail to the petitioner in the said Lanka P.S. Case No. 153/2012 (corresponding to GR. Case No. 141/2012) were also submitted. 2. After receipt of the said Charge Sheet, the SDJM, Sankardev Nagar, Hojai vide order dated 24.12.2012 passed in the said GR. Case No. 141/2012) were also submitted. 2. After receipt of the said Charge Sheet, the SDJM, Sankardev Nagar, Hojai vide order dated 24.12.2012 passed in the said GR. Case No. 141/2012 took cognizance of the offences against the petitioner and send down the case record along with the case diary to the Court of Judicial Magistrate First Class (in short JMFC), Sankardev Nagar, Hojai, District - Nagaon, Assam for trial and disposal of the same. Upon receipt of the case records on transfer, the JMFC, Sankardev Nagar, Hojai, vide order dated 28.12.2012 issued summon to the petitioner in the said GR. Case No. 141/2012 fixing 26.02.2013 for his appearance in the case. As the petitioner remained absent in the case by taking steps, the said JMFC on 26.02.2013, 20.03.2013, 30.05.2013, 06.07.2013 and 26.08.2013 passed orders in the said GR. Case fixing the dates for his appearance and lastly on 25.10.2013 fixed 11.12.2013 for appearance of the petitioner. 3. Since the police has filed the Charge Sheet in Lanka P.S. Case No. 153/2012, corresponding to GR. Case No. 141/2012 charged under Sections448/376/511 IPC against the petitioner, which is exclusively triable by the Court of Sessions, hence this petition by the petitioner under Section 482Cr.P.C. for setting aside the order dated 24.12.2012 passed by the SDJM, Sankardev Nagar, Hojai in GR. Case No. 141/2012 by which he took cognizance of the offences of the said charges against him and for transferring the case to the Court of JMFC for trial and disposal of the said case. In this petition, the petitioner has also prayed to set aside the subsequent orders passed by the JMFC in the said GR. Case No. 141/2012 on 28.12.2012, 26.02.2013, 20.03.2013, 30.05.2013, 06.07.2013, 26.08.2013 and 25.10.2013 with regard to issue of summon of the case to him and for his appearance in the said GR. Case. 4. Learned counsel for the petitioner submits that as the charge-sheet of the case filed by police in the said GR. Case No. 141/2012 on 28.12.2012, 26.02.2013, 20.03.2013, 30.05.2013, 06.07.2013, 26.08.2013 and 25.10.2013 with regard to issue of summon of the case to him and for his appearance in the said GR. Case. 4. Learned counsel for the petitioner submits that as the charge-sheet of the case filed by police in the said GR. Case No. 141/2012 supports offence triable exclusively by the Court of Session and therefore, the impugned order dated 24.12.2012 passed by the SDJM, Sankardev Nagar, Hojai, Nagaon taking cognizance of the offences against the petitioner and transferring the case to the Court of JMFC, Sankardev Nagar, Hojai; for trial and disposal of the said case, who is lawfully not competent to try the alleged offence; is illegal and without any authority of law and as such prayed to set aside the entire process against the petitioner. Learned counsel for the petitioner further submitted that the subsequent orders passed by the JMFC in the said GR. Case No. 141/2012 are also not tenable under the law and as such they are also to be set aside. 5. Hon'ble Apex Court in Sanjay Gandhi v. Union of India, reported in : (1978) 2 SCC 39 has held that - under the new Code (Cr.P.C. 1973) bearing upon the committal of cases where the offence is triable exclusively by the Court of Session, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session, the Magistrate has simply to commit for trial before the Court of Session. 6. The inherent jurisdiction of this Court under Section 482 Cr.P.C. can be exercised to make such order as may be necessary to give effect to any order under the said Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This Court under the Section482 Cr.P.C. is under an imperative obligation to interfere in order to prevent harassment of a citizen of India by an illegal prosecution and under the said provision, this Court has a power to interfere whenever there is any exceptional and extraordinary reason for doing so, keeping in mind that power under Section 482 Cr.P.C. have to be exercised sparingly. This Court will generally interfere in the interest of justice and to stop abuse process of laws. 7. Sections 376 & 511 of IPC are exclusively triable by Court of Session. As the report of police officer on completion of investigation of Lanka P.S. Case No. 153/2012, corresponding to GR. Case No. 141/2012 charged under Sections 448/376/511 IPC under Section 173 Cr.P.C. showed the offence that has been made out against the petitioner is triable exclusively by the Court of Session, the Sub-Divisional Judicial Magistrate, Sankardev Nagar, Hojai was required to commit the case to the Court of Session under Section 209 Cr.P.C. by complying the provisions of Section 207 or 208 of Cr.P.C. as the case maybe. 8. In the present case, though the charges are triable exclusively by the Court of Session, the Sub-Divisional Judicial Magistrate, Sankardev Nagar, Hojai instead of committing the case to the Court of Sessions at Nagaon, took cognizance of the case by himself and further transferred the case to the Judicial Magistrate First Class, Sankardev Nagar, Hojai directing him for trial and disposal of the said case. 9. From the aforesaid, this Court is of the opinion that it is a fit case to interfere with the order dated 24.12.2012 passed by the SDJM, Sankardev Nagar, Hojai in GR. Case No. 141/2012 (corresponding to Lanka P.S. Case No. 153/2012) and the subsequent orders passed by the JMFC, Sankardev Nagar, Hojai in the said GR. Case No. 141/2012 as because if the said proceeding of GR. Case No. 141/2012 from 24.12.2012, the date on which the SDJM, Sankardev, Nagar, Hojai took cognizance of the offences against the petitioner charged under Sections 448/376/511 IPC and transferred the case to the Court of JMFC, Sankardev Nagar; if allowed to proceed and or continue, it will amount to allowance of an enactment of a farce and thereby abuse the process of law. Accordingly, the impugned order dated 24.12.2012 passed by the SDJM, Sankardev Nagar, Hojai in GR. Case No. 141/2012 and the consequential orders dated 28.12.2012, 26.02.2013, 20.03.2013, 30.05.2013, 06.07.2013, 26.08.2013 and 25.10.2013 passed by the JMFC Sankardev Nagar, Hojai in the said GR. Case No. 141/2012 are set aside and quashed. Accordingly, the impugned order dated 24.12.2012 passed by the SDJM, Sankardev Nagar, Hojai in GR. Case No. 141/2012 and the consequential orders dated 28.12.2012, 26.02.2013, 20.03.2013, 30.05.2013, 06.07.2013, 26.08.2013 and 25.10.2013 passed by the JMFC Sankardev Nagar, Hojai in the said GR. Case No. 141/2012 are set aside and quashed. However, it is made clear that by setting aside the aforesaid impugned orders of the SDJM and JMFC of Sankardev Nagar, Hojai in GR Case No. 141/2012 shall not amount to setting aside the Charge Sheet No. 153/2012 dated 22.11.2012 filed by police in Lanka P.S. Case No. 153/2012 (corresponding to GR. Case No. 141/2012) before the SDJM, Sankardev Nagar, Hojai against the petitioner under Sections 448/376/511 IPC and the Sub-Divisional Judicial Magistrate, Sankardev Nagar, Hojai is hereby directed to commit the case to the Court of Sessions at Nagaon under Section 209 Cr.P.C. forthwith in accordance with law. In terms of above this Criminal Petition stands disposed of. _