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2018 DIGILAW 774 (GAU)

MD. HUSAIN KHAN v. STATE OF ASSAM

2018-05-10

AJIT BORTHAKUR

body2018
JUDGMENT/ORDER : 1. Heard Mr. A. Sahad, learned counsel for the petitioner and Ms. S. Jahan, learned Addl. P.P., Assam for the State/respondent No. 1 as well as Mr. A.K. Gupta, learned counsel for the respondents No. 2 & 3. 2. This revision petition is directed against the judgment and order dated 08.09.2009 passed by the learned Additional Sessions Judge, Tinsukia, in Crl.A. No. 34 (3) /2008. By the said judgment, the appellate court dismissed the appeal, upholding the judgment and order of the learned Trial Court in GR Case No. 957/2004, whereby the respondents No. 2&3 were acquitted. 3. The criminal law was set into motion through an FIR lodged by one Md. Hussain Khan alleging therein that an amount approximately Rs. 15000/- was stolen from the donation box of Lal Banglo Maszid in Tinsukia. It was alleged that the present respondents No. 2 & 3 were controlling the affairs of the Maszid (mosque) for last 27 years pausing themselves to be self style office bearer of the Maszid Committee and they did not submit account of the Maszid fund. According to the informant, though the petitioners were removed from the committee, they retained two numbers of key of the donation box with them. One day during the month of Ramjan, the informant when pasting a notice near the donation box, he found that the donation box were almost empty. It was stated that during Ramjan month, usually the devotees in huge numbers used to pay in the donation box, but on that day, when he put a coin inside the box, he found that the box was not full and as such the informant suspected that money from the donation box might have been stolen away and lodged the FIR. On the basis of the said FIR, police registered a case and after usual investigation, submitted charge sheet against the present respondents No. 2 & 3 under Section 406 R/W 34 IPC. Eventually both the respondents stood trial for the offence under Section 406 IPC. 4. Learned Trial Court framed charges under Section 406/34 IPC against both the accused persons, to which, they pleaded not guilty. As many as 10 witnesses were examined by the prosecution and on appreciation of the evidence, learned Trial Court acquitted both the accused persons, charge against them having not been established. 4. Learned Trial Court framed charges under Section 406/34 IPC against both the accused persons, to which, they pleaded not guilty. As many as 10 witnesses were examined by the prosecution and on appreciation of the evidence, learned Trial Court acquitted both the accused persons, charge against them having not been established. Against the said order of acquittal, an appeal was filed before the Court of Session by the State, which also stood dismissed. Both the courts below by elaborate judgment came to the finding that the ingredients of offence under Section 406 IPC was not proved and therefore acquitted the respondents No. 2 & 3. 5. Aggrieved by the judgment of the appellate court, the informant filed the instant revision petition. 6. The contention of the learned counsel for the petitioner is that the learned Trial Court wrongly framed charge under Section 406 IPC, whereas charge ought to have been framed under Section 380 IPC and therefore submits that the matter should be remanded back for a fresh trial after framing charge under Section 380 IPC as because, for not framing charge properly, the petitioner was prejudiced. Thus, only question to be considered in this revision is whether by not framing charge under Section 380 IPC, the learned Trial Court committed illegality, or such error in framing charge caused prejudice to the respondent informant. 7. It is settled position of law that mere non-framing of charge or irregularity in framing charge does not vitiate the trial unless such non-framing of charge or any irregularity in framing charge caused prejudice or failure of justice. Section 464 CrPC provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge, including any misjoinder of charges, unless failure of justice has in fact been occasioned thereby. 8. In a revision against order of acquittal, the scope of interference by High Court is extremely narrow, inasmuch as, while exercising revisional power against an order of acquittal, High Court cannot re-appreciate the evidence to replace the view taken by the court below by its own view. The Apex Court in Venkatesan vs. Rani & Anr. 8. In a revision against order of acquittal, the scope of interference by High Court is extremely narrow, inasmuch as, while exercising revisional power against an order of acquittal, High Court cannot re-appreciate the evidence to replace the view taken by the court below by its own view. The Apex Court in Venkatesan vs. Rani & Anr. reported in (2013) 14 SCC 207 observed that jurisdiction of the High Court while examining an order of acquittal is extremely narrow and ought to be exercised only in cases, where the trial court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. Re-appreciation of evidence is an exercise that the High Court must refrain from, while examining an order of acquittal in the exercise of its revisional jurisdiction under the code. 9. While framing charge in a police case, learned Trial Court is supposed to take into consideration the materials brought before it by the Investigating Agency. In the instant case, the very basis of the allegation of theft, as stated in the FIR was based on suspicion. The clear allegation in the FIR was that the donation box was not found full at the relevant time and therefore the informant suspected that the money from the box might have been stolen. Out of the 10 witnesses examined by the prosecution, no one stated that the boxes were broken or the boxes were opened to examine as to whether there was any theft committed or not. Therefore, the material brought on record, demonstrated that the element of theft was totally absent either in the FIR or in the other materials brought on record. Be that as it may, if the informant or the prosecution was aggrieved by the order of the learned Magistrate, framing charge under Section 406 IPC or for not framing charge under Section 380 IPC, the order could have been challenged at the appropriate stage. But there is no material to show, that any such endeavor was made by the informant or the prosecution. 10. The settled law is that irregularity in framing charge or non-framing of charge is not fatal unless such defect causes miscarriage of justice or prejudice to the party. But there is no material to show, that any such endeavor was made by the informant or the prosecution. 10. The settled law is that irregularity in framing charge or non-framing of charge is not fatal unless such defect causes miscarriage of justice or prejudice to the party. It is to be born in mind that prejudice is a question of fact and that has to be proved by adducing evidence. There cannot any presumption of prejudice. No evidence has been brought on record to show that because of non-framing of charge under Section 380 IPC, any prejudice was caused to the informant/petitioner. In absence of such material showing that any prejudice was caused to the present petitioner for not framing charge under Section 380 IPC, there is no scope for this revisional court to interfere with the concurrent finding of both the courts acquitting the respondents No. 2 & 3, inasmuch as, the impugned judgment of acquittal has not suffered from any illegality or irregularity. In the above facts and circumstances, I find this revision petition to be devoid of merit and accordingly, stands dismissed. 11. Send down the LCR.