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2018 DIGILAW 1348 (GAU)

Biplab Sutradhar v. State of Assam

2018-09-13

AJIT BORTHAKUR

body2018
JUDGMENT : Ajit Borthakur, J. Heard Mr. A. Lal, learned counsel for the petitioners and Mr. B. J. Dutta, learned Addl. Public Prosecutor, Assam, for respondent No. 1. Also heard Mr. D. Talukdar, learned counsel for respondent No. 2. 2. By this petition under Sections 397 and 401 of Cr.P.C., the petitioners have prayed for setting aside the order, dated 19.06.2015 and its consequential orders, dated 27.07.2015, 28.07.2015, 13.08.2015, 30.09.2015, 18.07.2016, 30.05.2017, 06.06.2017, 19.08.2017, 23.10.2017, 13.12.2017 and 01.02.2018 passed by the learned Sessions Judge, Chirang in Sessions Case No. 163 (Basu) of 2015 under Section 366 A of the IPC against the petitioners. 3. The petitioners' case, in a nut-shell, is that the respondent No.2 filed an FIR, on 08.03.2011, before the Officer-in-Charge, Basugaon P.S., alleging that the petitioner Nos. 2 and 3 others, on 23.02.2011 at around 4.30/5.00 am, had reportedly kidnapped his daughter, while going out in response to natural call. In this connection, he had lodged another FIR alleging her missing which was entered as Basugaon P.S.G.D. Entry No. 463, dated 23.02.2011. The said 2nd FIR was registered as Basugaon P.S. Case No. 26/11 under Sections 366A/34 of the IPC. 4. Mr. A. Lal, learned counsel for the petitioners, inter-alia, submits that the learned Sessions Judge, Chirang has committed a manifest illegality by adding the petitioners as co-accused in the said case vide the impugned order, dated 19.06.2015. Mr. Lal further submits that the impugned subsequent orders are bad in law as they are against the interim orders, dated 28.09.2015 and 24.05.2016, passed by the High Court in Crl. Review Petition No. 356/2015, whereby further proceedings in Sessions Case No. 163 (Basu)/2015 pending in the Court of learned Sessions Judge, Chirang was suspended. It is also submitted by Mr. Lal that the evidence of the witnesses so far recorded in the case, are full of material contradictions, embellishments, omissions and variations, which apparently do not justify exercise of power conferred under Section 319 of Cr.P.C. In support of his argument, Mr. Lal, learned counsel for the petitioners relies on the judgments of the Hon'ble Supreme Court rendered in Michael Machado Vs. C.B.I., (2000) 3 SCC 262 and Hardeep Singh Vs. State of Punjab and Others., (2014) 3 SCC 92 . 5. Per contra, Mr. B. J. Dutta, learned Addl. Lal, learned counsel for the petitioners relies on the judgments of the Hon'ble Supreme Court rendered in Michael Machado Vs. C.B.I., (2000) 3 SCC 262 and Hardeep Singh Vs. State of Punjab and Others., (2014) 3 SCC 92 . 5. Per contra, Mr. B. J. Dutta, learned Addl. Public Prosecutor, Assam, appearing for the State respondent No. 1 submits that the whole issue arises out of the contradictions in the evidence of PW. 7, the victim girl. However, the petitioners have not explained the reason for delay of 2 years and 9 months. The earlier Crl. Rev. Petition being No. 356/2015 was disposed of by order, dated 22.03.2015 and thereby quashed the order, dated 19.06.2015, so far it relates to accused Jharna Das and Shankar Das. 6. Mr. D. Talukdar, learned counsel for the respondent No. 2 submits that the instant revision petition is barred by Law of Limitation as it is filed after inordinate delay of about 2 years 9 months from the date of disposal of the earlier revision petition on 22.03.2015 against the accused Jharna Das and Shankar Das. According to Mr. Talukdar, thereafter, the trial proceeded against the remaining accused persons and as such, if the instant petition is allowed that would amount to review of this Court's earlier order passed in the aforesaid revision petition. Drawing attention to the impugned order, dated 19.06.2015, Mr. Talukdar submits that the learned Trial Court considered and disposed of the Petition No. 754/14 filed by the respondent No. 2 under Section 319 of Cr.P.C., submitted through the learned Public Prosecutor concerned, praying for issuance of summons to the co-accused involved in the case, namely, the present petitioners and Others. Mr. Talukdar emphatically submits that the learned Sessions Judge, Chirang has rightly exercised the power conferred under Section 319 of Cr.P.C. by directing to issue summons to the petitioners, in connection with the case. 7. I have considered the above arguments advanced by the learned counsel of both the sides and perused record. 8. It needs to be mentioned that an order under Section 319 of Cr.P.C. for proceeding against a person, other than the accused persons, who appears to have committed an offence for which he could be tried together with the accused, entirely depends upon the factor that it appears from the evidence that such person has committed any offence. 8. It needs to be mentioned that an order under Section 319 of Cr.P.C. for proceeding against a person, other than the accused persons, who appears to have committed an offence for which he could be tried together with the accused, entirely depends upon the factor that it appears from the evidence that such person has committed any offence. This section is a self-contained section independent of Sections 190 and 191 of Cr.P.C. and deals with a matter arising during the course of a proceeding already initiated. The newly added accused can be tried only for the offence of which cognizance is already taken against other accused. 9. In Para-11 of the judgment rendered in Michael Machado , the Hon'ble Supreme Court observed as hereinbelow extracted: "The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused". 10. In Hardeep Singh, a Constitution Bench of the Hon'ble Supreme Court succinctly explained the scope and extend of powers under Section 319 of Cr.P.C. exhaustively. The Hon'ble Court held (i) that the power under Section 319 (i) of Cr.P.C. can be exercised at any time after the Charge-Sheet is filed and before pronouncement of judgment, except during the stage of Sections 200/201 of Cr.P.C., which is only a pre-trial stage, intended to put the process into motion. Until and unless the case reaches the stage of inquiry or trial by the Court, the power under Section 319 of Cr.P.C. cannot be exercised, (ii) the word 'evidence' in Section 319 of Cr.P.C. means only such evidence as is made before the Court, in relation to statements, and as produced before the Court, in relation to documents. Until and unless the case reaches the stage of inquiry or trial by the Court, the power under Section 319 of Cr.P.C. cannot be exercised, (ii) the word 'evidence' in Section 319 of Cr.P.C. means only such evidence as is made before the Court, in relation to statements, and as produced before the Court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 of Cr.P.C., is to be exercised and not on the basis of examination-in-chief, the Court or the Magistrate can proceed against a person as long as the Court is satisfied that the evidence appearing against such person is such that it prima facie necessitates such person to face trial, (iv) Power under Section 319 of Cr.P.C. can be exercised against a person not subjected to investigation or a person placed in the Charge-Sheet and against whom cognizance had not been taken, or a person, who has been discharged. Though under Section 319(4)(b) of Cr.P.C., the accused, subsequently impleaded, is to be treated as if he had been an accused, when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 of Cr.P.C. would be the same as for framing a charge. 11. Perusal of the record reveals that the present petitioners were not named as accused in the Charge-Sheet. However, in the evidence of PW. 7, the victim girl, it has come that the present petitioners allegedly caught her and boarded into a TATA Sumo vehicle, forcibly, near rail tracks and took her to a family of Bongaigaon and to different places at Kokrajhar, Alipur, Tufanganj etc. The perusal of the record also shows that the co-accused persons, namely, Jharna Das and Shankar Das preferred Crl. Rev. Pet. No. 356/ 2015 against the present impugned order, dated 19.06.2015, and this Court after examining the evidence on record by judgment and order, dated 22.03.2017, set aside and quashed the same so far the said petitioners were concerned with direction to the learned Trial Court to proceed against the other accused persons in accordance with law meaning thereby the present accused petitioners and Others. Therefore, the instant petition, which was filed on 28.03.2018 i.e. after more than a year from the date of the aforesaid judgment and order is additionally barred by limitation. The learned Trial Court in its fair discretion having found prima facie material in course of the trial of the case to the effect that the present petitioners were also involved in the commission of the offence and accordingly, in exercise of the powers conferred under Section 319 of Cr.P.C. has taken cognizance of the offence against them. Therefore, this Court sees no reason to interfere in the judicial discretion applied by the learned Court below, in accordance with law vide the impugned order. 12. Consequently, the petition stands dismissed.