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2017 DIGILAW 362 (GAU)

Jharna Das W/o Sankar Das v. State of Assam

2017-03-22

PARAN KUMAR PHUKAN

body2017
JUDGMENT AND ORDER : 1. Heard Mr. P.K. Garodia, learned counsel appearing for the petitioners and Mr. K.M. Haloi, learned counsel appearing for respondent No. 2. Also heard Mr. H. Sarma, learned Addl. Public Prosecutor, Assam. 2. Challenge here is to the order dated 19.06.2015 passed by the learned Sessions Judge, Chirang, Kajalgaon in connection with Sessions Case No. 163 (Basu) of 2015 registered under section 366 (A) of the Indian Penal Code, whereby, the learned court on an application filed by the informant of this case decided to proceed against the petitioners along with other accused in exercise of the power under section 319 of the Code of Criminal Procedure. The learned counsel appearing for the petitioners submits that though the petitioners’ names were mentioned in the complaint dated 08.03.2011 filed by the father of the girl who was allegedly kidnapped, the alleged victim girl in her statement recorded under section 164 of the Cr.P.C. has not implicated the petitioners in the case and the learned Sessions Judge while considering the prayer of the informant, should have considered the statements made by the victim girl under section 164 Cr.P.C. before the learned Magistrate which was recorded soon after recovery of the girl. Learned counsel for the informant/respondent No. 2, on the other hand, submits, by referring to the age certificate of the girl, that she was a minor aged about 14 years and at the time of giving statement before the Magistrate she was in mental shock and due to this reason the name of the petitioners were not mentioned before the Magistrate. 3. In the backdrop of the aforesaid contentions, I have gone through the statement of the girl recorded under section 164 of the Cr.P.C. wherein she stated that she had love affair with the accused Dipankar Mazumdar and she herself went with the accused to Calcutta and both of them got married. She has not whispered a single word against the accused petitioners in her statement before the court to show their involvement in the commission of the crime alleged to have been committed. For the first time in the court, while adducing evidence, she mentioned the names of the petitioners and stated that they were involved in her kidnapping. She has not whispered a single word against the accused petitioners in her statement before the court to show their involvement in the commission of the crime alleged to have been committed. For the first time in the court, while adducing evidence, she mentioned the names of the petitioners and stated that they were involved in her kidnapping. Section 319 of the Cr.P.C. gives ample power to the court to take cognizance against any person not being accused before it and try him along with the accused persons sent up for trial. 4. It is a settled proposition that this extraordinary power is to be exercised sparingly only if any compelling reason exists. The power can be exercised by the court only, if from the evidence adduced during the trial, the involvement of the persons concerned in the offence being enquired into or tried. 5. In the present case though in the complaint the father of the alleged victim implicated the accused petitioners but they were not sent up for trial by police and they were not charge-sheeted. Cognizance was also not taken by the learned Magistrate at that stage and the court proceeded against the charge sheeted accused. During the trial of the case, the alleged victim girl disclosed that the petitioners were also involved in the commission of the crime and on that basis a petition under section 319 Cr.P.C. was filed for taking cognizance against the petitioners. The learned court on the basis of the complaint and the evidence adduced by the alleged victim girl having found materials against the accused petitioners decided to proceed against them. However, it appears from the impugned order of the learned court that he has not taken into consideration the entire aspect of the case. There is nothing in the order to show that he has gone through the case diary or the statement of the girl recorded under section 164 of the Cr.P.C. 6. As noticed earlier, in her earlier statement before the court the victim girl has not whispered a single word against the petitioners to show their involvement in the commission of the crime, but, she had clearly stated that she had love affair with the accused and she eloped with him to Calcutta and they got married. As noticed earlier, in her earlier statement before the court the victim girl has not whispered a single word against the petitioners to show their involvement in the commission of the crime, but, she had clearly stated that she had love affair with the accused and she eloped with him to Calcutta and they got married. The learned court without considering her earlier statement decided to proceed against the accused petitioners, which in my view, is not the correct approach. Usually in such type of cases, the complainant has the tendency to rope in all the relatives of the accused for taking vengeance. In the present case it appears that similar situation has arisen. 7. Consequently, I am of the considered opinion that the impugned order dated 19.06.2015 passed by the learned Sessions Judge, Chirang, Kajalgaon is not sustainable in law and is liable to be set aside. Accordingly, the same is set aside and quashed so far the accused petitioners, namely, Smti Jharna Das and Sri Sankar Das are concerned. The trial will proceed against the other accused persons in accordance with law. 8. The petition stands allowed. 9. Send down the LCR.