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2017 DIGILAW 645 (GAU)

GOUTAM BARMAN, SON OF LATE BAJYESWAR BARMAN v. STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR

2017-05-24

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : 1. This is a petition under Section 482 read with Sections 397 and 401 of the Cr.PC praying for quashing of the judgment dated 23.03.2017 passed by the learned Additional Sessions Judge, Cachar, Silchar in Criminal Revision No. 29/2017 and the order dated 05.12.2016 passed by the learned SDJM, Silchar, Cachar. 2. The case of the petitioners is that the opposite party, as informant, lodged an FIR with the Dholai Police Station on 19.10.2013 alleging that the petitioners forcefully entered into her house and attacked her, damaged properties of her house, assaulted her and took away some gold ornaments. The Dholai Police Station registered a case, investigated into it, collected evidence, and finally, submitted Final Report being Final Report No. 11 dated 28.02.2014. 3. The learned Chief Judicial Magistrate, Cachar, Silchar on receipt of the final report with a prayer for release of the persons, who were arrayed as accused in the case, transferred the records to the learned SDJM, Cachar, Silchar, and the learned SDJM, Cachar, Silchar vide his order dated 07.11.2014, rejected the Final Report after hearing the objection filed by the opposite party No. 2 herein, and after examination of the informant and her witnesses, took cognizance of offences under Sections 448/427/354/323 IPC and he got the case registered as a complaint case. 4. As per records available before this Court, charge has been framed in this case against the accused petitioners, evidence before charge has been recorded and at present, the case is at the stage of evidence after charge. 5. Mr. RC Paul, learned counsel for the petitioners referring to the observation at paragraph 9 of the decision of this High Court in the case of Moinul Hoque & Ors. Vs. State of Assam & Anr., reported in (2014) 2 GLR 105, submitted that there is no complaint filed by the informant/opposite party in the instant case and rather the statement of her witnesses, while considering the Final Report submitted by the Police, were taken to be statements in the complaint case and the Final Report has been, in fact, converted into a complaint case and proceeded with the case. 6. The record reveals that the petitioners, herein, have allowed the proceeding to go till the stage of evidence after charge. 6. The record reveals that the petitioners, herein, have allowed the proceeding to go till the stage of evidence after charge. To reach the stage of evidence after charge, as per the relevant provisions of the Cr.PC, the learned Magistrate is to record evidence before charge and then on materials found in the evidence recorded before charge, to frame charge and only after framing of charge recording of evidence after charge should take place. 7. There is no whisper in the petition that ever till the stage of evidence the petitioners raised this issues before the learned Court below. The learned Court of the Judicial Magistrate proceeded with the case to a great extent and it is at the last but one stage away for the conclusion of the trial. The submission of the learned counsel for the petitioners that the case ought not to have been registered as a complaint case and that the informant could have filed an independent complaint case does not inspire confidence of this Court in view of the legal position that irregularities, if any, in the proceeding can be cured at any stage. That apart, this Court is of the view that since the case has already been proceeded almost to the last stage, it will be inappropriate to set aside the orders under challenge, which will stand as a stumbling block in he progress and conclusion of the trial. 8. The irregularities said to have been committed by the learned Trial Court appears to be completely technical in nature, which does not otherwise effect the merit of the case. 9. Therefore, in view of the above discussions and the reasons recorded therein, I am constrained to hold that this petition is devoid of merit and thus disposed of by way of dismissal. 10. Ordered accordingly.