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2018 DIGILAW 1104 (GAU)

Subrata Roy Choudhury v. State of Assam

2018-07-26

AJIT BORTHAKUR

body2018
JUDGMENT : Heard Mr. A.M. Bora, learned Senior counsel for the petitioners and Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam, appearing for the State respondent No. 1 and Mr. P.K. Deka, learned counsel appearing for the respondent No. 2. 2. By this petition under section 401 read with Section 397 of the Code of Criminal Procedure, 1973, the petitioner has challenged the legality and correctness of the impugned judgment and order, dated 08.09.2011, passed by the learned Sessions Judge, Cachar, Silchar in Crl. A. No. 10/2010, upholding the judgment and order, dated 05.07.2008, passed by the learned Judicial Magistrate, First Class, Cachar at Silchar convicting the accused petitioners under Section 498 A/34 of the Indian Penal Code and sentencing them to suffer S. I. For two years and to pay fine of Rs.10,000/- each, in default, to undergo S. I. for one month, each, in connection with G. R. Case No. 330/2006. 3. The petitioners’ case, in a nut-shell, is that on 03.01.2006, the respondent No. 2, herein, filed a complaint before the Court of learned Chief Judicial Magistrate, Cachar at Silchar against the petitioners and her mother-in-law alleging, inter-alia, that the respondent No. 2 was married to the petitioner No. 1, herein, on 12.03.2005, according to Hindu rites and rituals and after the marriage, they were living as husband and wife in a joint family. In the said complaint, it was further alleged that she was used to be subjected to cruelty, physical and mental, whenever she fell sick, for which, in the compelling situation, she returned to her parental home. Thereafter, when she recovered from illness, on 25.11.2005, she along with her brother and some relatives went to the house of the petitioners, but the petitioners abused them with slang words and threatened to kill her and also demanded money and said that they will keep her, if they gave money, as demanded. Therefore, the respondent No. 2, having no other option, returned to her parental home. Therefore, the respondent No. 2, having no other option, returned to her parental home. Thereafter, with a hope to save her marriage with the petitioner No. 1 and to prevent him from demanding money, a notice through a lawyer with registered AD post was sent, but the petitioner No. 1 did not bring her back to his house and on the contrary, after receiving the notice, the petitioners being annoyed with the respondent No. 2, herein, increased the amount of dowry and threatened her over the phone. The said complaint was later on forwarded to the Silchar Police Station for registering a case and investigation, whereupon Silchar P.S. Case No. 162/2006 under Sections 498 A/506/34 of the IPC was registered and on completion of the investigation, filed a charge-sheet against the petitioners and their Mother under the aforesaid sections of the IPC. Accordingly, the learned Chief Judicial Magistrate, Cachar, Silchar framed charges under Section 498 A/34 of the IPC against them, to which they pleaded not guilty and claimed to be tried. 4. In order to bring the charges home, the prosecution examined 3 witnesses, while the defence cross-examined them at length. After closing the evidence of the prosecution side, the statements of the accused persons were recorded under Section 313 Cr.P.C. During trial of the case, the accused persons and the respondent No. 2, herein, however, filed a joint petition before the learned trial Court below for compromising the matter, on the ground, that the respondent No. 2, herein, started to live with the accused persons and as such, did not want to pursue the case, considering the resumption of the conjugal life. However, the learned Court below rejected the prayer on the ground of the offence under Section 498 A of the IPC being a non-compoundable offence and convicted the accused petitioners and their mother under Section 498 A/34 of the IPC and released them by giving the benefit of Section 4 of ‘the Probation of Offenders Act, 1958’, on executing a bond with a direction to appear and receive the sentence when called for during a period of 2 years from the date of the said judgment and further, directed the petitioners to keep peace and good behaviour with the respondent No. 2, herein, vide its judgment and order, dated 05.07.2008. 5. 5. According to the petitioners, the respondent No. 2, after the aforesaid judgment of conviction was passed filed petition No. 163, dated 27.01.2010 before the learned trial Court alleging, inter-alia, that the accused petitioners again started to torture her and drove her out of her matrimonial house. On receipt of the said petition, the learned trial Court issued notice to the accused petitioners for their appearance and on such appearance of the parties, after hearing both the sides sentenced the petitioners as stated above as per its earlier judgment and order, dated 05.07.2008. It is pertinent to be mentioned that the accused Smti. Tillotamma Roy Choudhury was convicted of the charges and sentenced to payment of fine only. 6. Being aggrieved, the accused petitioners, herein, preferred an appeal being Crl. A. No. 10/2010, before the Court of learned Sessions Judge, Cachar, at Silchar and the learned Sessions Judge by judgment and order, dated 08.09.2011, dismissed the said appeal upholding the judgment and order of conviction passed by the learned Judicial Magistrate, Cachar, Silchar. Hence, the instant Crl. Rev. Petition has been filed with prayer to set aside the impugned judgments, aforementioned. 7. Mr. A.M. Bora, learned Senior counsel for the petitioners submits that the evidence available on record do not justify the conviction of the petitioners with the alleged offence, inasmuch as, the prosecution failed to make any allegation of harassment to the extent so as to coerce the victim to meet any unlawful demand of dowry, or any wilful conduct on the part of the accused persons of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or damage to life, limb or health, but no such allegation has been proved through adducing evidence to constitute the offence under Section 498 A of the IPC. Mr. Bora further submits that the learned Court below failed to appreciate the evidence on record from proper perspective and also failed to notice that the prosecution kept the Investigating Officer, out of the witness box, who was a material witness in the case and on the other hand, while applying the provisions of the Probation of Offenders Act, 1958 did not comply with the mandatory provisions contained therein. Mr. Mr. Bora, therefore, submits that the case should be remanded back to the learned Court below with a direction to decide the whole case on merit and to afford opportunity to the petitioners to examine witnesses in defence. 8. Mr. B.J. Dutta, learned Addl. Public Prosecutor, Assam, appearing for the State respondent No. 1 fairly submits that after releasing the accused petitioners under Section 4 of the Probation of Offenders Act, 1958, the learned trial Court failed to comply with the prescribed procedure laid in Section 9 of the said Act in true spirit and as such, the case should be remanded back to the learned trial Court for a fresh decision on the whole case affording opportunity to the accused petitioners to examine their witnesses in defence. 9. Mr. P.K. Deka, learned counsel appearing for the respondent No. 2 has also fairly acceded to the submissions made by the learned counsel for the petitioners and the State respondent No. 1. 10. Perused the record of G. R. Case No. 330/2006. I have given due consideration to the arguments advanced by the learned counsel for both the sides. 11. Perusal of the impugned original judgment and order of conviction, dated 05.07.2008, it appears that the learned trial Magistrate convicted the accused petitioners and another under Section 498-A/34 of the IPC, but released them under Section 4 of the Probation of Offenders Act, 1958, on their entering into a bond without any surety to appear and receive the sentence when called upon during the period of 2 (two) years from the date of the judgment and in the meantime, to keep the peace and good behaviour with the informant/victim. However, as it appears from the order, dated 27.01.2010, passed in G.R. Case No. 330/2006, the victim, by petition No. 163 complained of repetition of cruelty on her by the accused persons, that is, during the period of the bond in force, aforementioned and on receipt of notice, the accused persons appeared before the learned Court. Thereafter, on hearing of both the sides, by a detailed order, dated 20.04.2010, sentenced both the accused petitioners as stated above, while the co-accused Smti. Tilotomma Roy Choudhury to payment of fine only. The petitioners preferred appeal against the said order of conviction and sentence passed against them vide Crl. Thereafter, on hearing of both the sides, by a detailed order, dated 20.04.2010, sentenced both the accused petitioners as stated above, while the co-accused Smti. Tilotomma Roy Choudhury to payment of fine only. The petitioners preferred appeal against the said order of conviction and sentence passed against them vide Crl. A. No. 10 of 2010, which was dismissed by the impugned judgment and order, dated 08.09.2011, passed by the learned Addl. Sessions Judge, F.T. C., Cachar at Silchar. 12. It is seen that the learned Magistrate, by the impugned judgment and order, dated 25.07.2008, for reasons recorded therein released the petitioners, on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 without passing any order of sentence and later, on 20.04.2010, sentenced them as stated above, on breach of terms of the bond. 13. However, perusal of the statements of the accused petitioners, recorded under Section 313 Cr.P.C., dated 24.06.2008, it appears that the learned trial Magistrate, did not fill up the prescribed form properly and failed to put any question as to whether they wanted to adduce any evidence in defence, although in the relevant order, noted that they declined to adduce any defence evidence. On a careful perusal of the aforesaid statements under Section 313 Cr.P.C. and the corresponding order, this Court finds it a material omission prejudicial to the interest of the accused persons. 14. For the reasons, set forth above, the revision petition stands allowed. 15. The impugned judgment and orders are set aside and remanded back to the learned trial Court to give an opportunity to the accused petitioners to adduce evidence in defence and then to deliver a fresh judgment in accordance with law. 16. Send back the LCR along with a copy of this judgment and order. Accordingly, the appeal stands disposed of.