Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 180 (GAU)

ABUL HUSSAIN v. STATE OF ASSAM

2018-01-31

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This is a criminal petition, filed under Section 482 of the Cr.PC, seeking quashment of the proceeding in CR Case No. 57c/2016, pending in the Court of learned Sub-Divisional Judicial Magistrate (M), Gossaigaon. 2. I have perused the petition as well as the annexures furnished therewith. 3. I have also heard Mr. M.A. Sheikh, learned counsel for the petitioner as well as Mr. M. Hussain, learned counsel for the respondent No. 2. State respondent No. 1 is represented by learned Additional Public Prosecutor Mr. P.S. Lahkar. 4. The complaint case, referred to above, was filed by the respondent No.2 against the present petitioner and others alleging that she was subjected to physical and mental torture by them after marriage. The accused-petitioner, being her husband, is alleged to have subjected her to torture, both mentally and physically. 5. Learned counsel for the petitioner has submitted that the complainant/respondent No. 2 was missing for a certain period for which she filed an FIR with the police. But, subsequently, she was recovered by the police and was produced before the court and then her statement was recorded under Section 164 of the Cr.PC. Thereafter, the present respondent No. 2/complainant filed the aforesaid complaint case alleging atrocities on her person by the accused-petitioner. 6. Learned counsel for the petitioner has raised the following arguments to support his plea seeking quashment of the proceeding. (i) That the learned trial court which had taken cognizance of the offences against the accused-petitioner in the aforesaid complaint, could not have taken the cognizance in view of the provisions of Section 177 of the Cr.PC as the alleged occurrence did not take place within the jurisdiction of that court. (ii) Learned counsel for the petitioner has further submitted that the learned trial court while taking cognizance, committed mistake in not complying with the provisions of Section 200 of the Cr.PC and according to him, 7 (seven) witnesses have been named by the complainant in her complaint, but, the learned trial court examined the complainant only under Section 200 of the Cr.PC, and then took cognizance. (iii) Further argument made by the learned counsel for the petitioner is that, the complaint was filed about one month later than the date of lodging of the FIR about missing of the complainant/respondent No. 2. 7. (iii) Further argument made by the learned counsel for the petitioner is that, the complaint was filed about one month later than the date of lodging of the FIR about missing of the complainant/respondent No. 2. 7. I have meticulously examined the contentions raised by the learned counsel for the petitioner. 8. Learned counsel for the petitioner has referred to a decision of the Honble Supreme Court in the case of Sanjaysinh Ram Rao Chavan Vs. Dattatray Gulbar Phakle and Ors reported it (2015) 3 SCC 123 , and the same does not appear to be applicable in the facts and circumstance of the present. 9. Learned counsel for the respondent No. 2, Mr. M. Hussain, contended that the contentions raised by the learned counsel for the petitioner do not merit consideration in view of the fact that cognizance has been taken by the learned trial court on the basis of materials on record. 10. I have considered the rival contentions of both the parties. 11. So far the contention of the learned counsel for the petitioner as regards the jurisdiction is concerned, the learned trial court is to comply with the provisions of Section 177 of the Cr.PC and other provisions related to jurisdiction as provided in Chapter-XIII of the Cr.PC. 12. As regards the second contention of the learned counsel for the petitioner that the witnesses named by the complainant/respondent No. 2 were not examined by the learned trial court, this court is of the considered view that such submission is not backed by the provisions of Section 200 of the Cr.PC. Section 200 of the Cr.PC provides for examination of the complainant and his witnesses present on the day. There is no instance placed before the court that on the day of the examination of the complainant/respondent No. 2 under Section 200 of the Cr.PC other witness was produced and present in the court. The examination of all the witnesses of the complainant is covered by Section 202 of the Cr.PC and not by Section 200 of the Cr.PC. 13. So far the third contention of the learned counsel for petitioner is concerned, there is more than one month delay in filing the complaint that too, after lodging of the FIR by the accused-petitioner about missing of the complainant/respondent. This question of delay is necessarily be dealt with by the learned trial court on merit. 14. 13. So far the third contention of the learned counsel for petitioner is concerned, there is more than one month delay in filing the complaint that too, after lodging of the FIR by the accused-petitioner about missing of the complainant/respondent. This question of delay is necessarily be dealt with by the learned trial court on merit. 14. The question of jurisdiction and the question of delay, as submitted by the learned counsel for the petitioner, needs a roving enquiry into the facts which this court cannot do in exercise of its power under Section 482 of the Cr.PC. 15. Cognizance has been taken by the learned trial court after examination of the complainant and on being satisfied that there is ground to proceed against the accused- petitioner. The order taking cognizance has been put to challenge in this petition with a prayer to quash the proceeding. 16. During the course argument, learned counsel for the petitioner raised some issues of facts, such as, that the complainant/respondent eloped with accused No. 5 in the complaint petition etc. 17. These are the questions of facts which cannot be decided in the instant petition, and therefore, this petition is disposed of with the following directions. (i) The question of jurisdiction raised by the learned counsel for the petitioner be raised before the learned trial court after appearance by the accused-petitioner which the learned trial court will consider on its own merit. 18. This court is not inclined to exercise its power under Section 482 of the Cr.PC to quash the CR Case No. 57c/2016, pending in the court of learned Sub-Divisional Magistrate (M), Gossaigaon. 19. The criminal petition stands disposed of accordingly.