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2019 DIGILAW 188 (GAU)

Altaf Hussain v. State of Assam

2019-02-08

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. Heard Mr. P.K. Goswami, learned senior counsel for the petitioner and Mr. H. Srama, learned Additional Public Prosecutor. None appears for respondent No. 2. 2. The petitioners herein are assailing the order dated 4.6.2011 passed by the learned Addl. District and Sessions Judge (FTC) I, Kamrup (M) in Sessions Case 48(K)/2011 under section 447/453/435/427/506/34 of the IPC whereby the learned court has framed the charges against the petitioners under the said sections of law without considering the application filed by the petitioners under section 227 of the Cr. PC for discharging them in connection with the said sessions case. 3. The prosecution story in brief is that on 30.1.2005 one Indrajit Sarma lodged an FIR with Noonmati PS alleging, inter alia, that on 29.1.2005 at about 11.30 p.m. while he was returning home after attending a marriage ceremony he was obstructed near his gate by one Maruti Van bearing number AS-01/M-8492 parked in front of his gate with its head light blinking repeatedly at him. At this, he went near the vehicle to inquire why the driver was doing so and then he found one Bipul Mahanta in the driver's seat and the owner of the car Bijoy Sen was lying in the back seat. They were both drunk and playing music loudly causing a lot of nuisance. When he asked them to stop it, they abused him in bad language and threatened him with dire consequences and manhandled him. Then, Indrajit entered his residence and locked the gate. After some time the said Bipul Mahanta along with 6/7 boys of the locality and some boys from the compound where the car was parked, namely, Moon, Mridul and Altaf came to his residence armed with dao and axe and started shouting from outside and dared him to come outside with threatening to kill him and cut him into pieces. Ignoring the fact, Indrajit, however, did not go outside and went to sleep. After some time he woke up by the sound of fire in the porch and he rushed outside and found his motorcycle Bajaj Pulser bearing AS-01/T-1210 was on fire and other Indica car (AS-25A/9593) was partially damaged. In the light of the fire he saw the said Bipul Mahanta and his accomplices jumping the gate and escaped. After some time he woke up by the sound of fire in the porch and he rushed outside and found his motorcycle Bajaj Pulser bearing AS-01/T-1210 was on fire and other Indica car (AS-25A/9593) was partially damaged. In the light of the fire he saw the said Bipul Mahanta and his accomplices jumping the gate and escaped. On his hue and cry’ his family members as well as neighbours arrived but in the meantime the motor cycle was totally damaged and the car was partially damaged. With these facts an FIR was lodged by Indrajit Sarma on the very next morning also mentioning that the compound where the Maruti Car was parked was the den of anti-socials where almost at every night they gather and create nuisance by playing music and use abusive language after drinking liquor. On the basis of the said FIR, Noonmati PS case 14/2005 under section 147/148/149/341/447/435/436/427/506 of the IPC was registered. 4. During the course of investigation the above vehicle was seized and various witnesses were examined and at the conclusion of investigation, chargesheet was also submitted under the said sections of law against five accused-persons, namely, Bipul Mahanta, Bijoy Sen and the present three petitioners Altaf Hussain, Mridul Ali and Moon Hoque. The offence charged being Sessions triable, the case was committed to the Court of Sessions and the accused-persons entered appearance. 5. The present petitioners filed a petition before the trial court seeking their discharge under section 227 of the Cr.PC on the ground that they were not involved in the alleged incident and they were not even present at the place of occurrence and their names have been unnecessarily dragged by the informant for best reasons known to him. It was pleaded that the statement of the informant and other witnesses recorded under section 161 of the Cr. PC, on its face value no offence is made out against them. It is stated that the witnesses nowhere have supported the story projected in the FIR so far as the three applicant-accused are concerned. According to the applicant-accused, no prima facie case is made out against them to frame the charges on the basis of the material on record and they should be discharged by the court by invoking the judicial discretion under section 227 of the Cr. PC. 6. According to the applicant-accused, no prima facie case is made out against them to frame the charges on the basis of the material on record and they should be discharged by the court by invoking the judicial discretion under section 227 of the Cr. PC. 6. The learned trial court, however, by the impugned order after hearing the learned counsel for both the parties and on perusal of police papers under section 173 of the Cr. PC framed the charges against the accused-petitioners and the accused-Bijoy Sen (one of the accused-Bipul Mahanta died, hence, the case abated against him) and the present petitioners under section 447/435/427/506/34 of the IPC, to which they pleaded not guilty. The case being triable by the Court of Judicial Magistrate First Class, the case was remanded to the committal court for trial. 7. Challenging the said order the present petition under section 397 read with section 482 of the Cr. PC and article 227 of the Constitution has been filed seeking quashing of the said order of framing charge. 8. I have heard submissions of learned senior counsel, Mr. P.K. Goswami and learned Additional Public Prosecutor, Mr. H. Sarma for the State. 9. From the submission made before this court it emerged that basically on two grounds the impugned order has been challenged. Firstly, there is no adequate material on record to connect the accused-petitioners with the offence and the informant has unnecessarily named them in the FIR. Secondly, the statements of witnesses recorded under section 161 of the Cr. PC have not supported the case of the informant and denied the presence of the three petitioners at the place of occurrence. On these twin grounds it is submitted that mere mentioning of the names of the petitioners in the FIR without any supporting evidence no charge can be framed against the petitioners. As such the impugned order framing charge is palpably illegal and liable to be quashed and set aside. 10. Learned senior counsel Mr. Goswami has drawn the attention of the court to the statements of witnesses recorded under section 161 of the Cr. PC to fortify the grounds. As such the impugned order framing charge is palpably illegal and liable to be quashed and set aside. 10. Learned senior counsel Mr. Goswami has drawn the attention of the court to the statements of witnesses recorded under section 161 of the Cr. PC to fortify the grounds. Statement of the neighbouring witness one Miss Catbanu Khatun is pointed out where she has stated that while there was an altercation between the informant and the accused-Bipul Mahanta and Bijoy Sen, i.e., at the time when the informant asked them as to why the head light was blinking upon him, she did not see the three accused-petitioners. After some time she saw some 3/4 boys standing in front of the gate of the informant but she could not see those persons from her house and later she went to sleep and again in the late night hearing some sound she came out along with her husband and saw the vehicle of the informant burning inside his house and they doused the fire. 11. Next witness who is the mother of the informant Mrs. Deba Bala Devi also stated to have not supported the presence of the three accused-petitioners at the place of occurrence. Although the said witness has stated about the altercation between her son and Bipul Mahanta and Bijoy Sen, she has not named the present accused-petitioners who were along with those two persons. She stated that her son/informant told her about some associates of those two were involved in the incident of burning the vehicle. 12. Similarly, the other witness Smt. Chitralekha Sarma has also stated about both the incidents regarding the quarrel and burning of the vehicle but has not specifically named the present accused-persons. So far as the other witnesses are concerned they have no knowledge about the incident but have seen the burning of the vehicle in the house of the informant. 13. According to learned senior counsel, Mr. Goswami, there being no prima facie case against the petitioners the court is not justified in framing the charge against them. So far as the other witnesses are concerned they have no knowledge about the incident but have seen the burning of the vehicle in the house of the informant. 13. According to learned senior counsel, Mr. Goswami, there being no prima facie case against the petitioners the court is not justified in framing the charge against them. Relying on the decision in Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : AIR 1979 SC 366 , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijoya, (1990) 4 SCC 76 : AIR 1990 SC 1962 , State of Karnataka v. L. Muni Swamy, (1977) 2 SCC 699 : AIR 1977 SC 1489 , State of Maharashtra v. Priya Sharan Maharaj, (1997) 4 SCC 393 and State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 , it is urged before this court that the court can sift evidence at the time of framing charge for ascertaining whether a prima facie case is made out against the accused. The observations in Debendra Nath (supra) in para 9 is being laid before this court to submit that the provision of section 227 of the Code is incorporated with a view to save the accused from prolonged harassment which is necessary concomitant of a protected criminal trial. It is calculated to eliminate harassment to accused-persons when the evidential material gathered after investigation falls short of legal requirement. If the evidence, even if fully accepted, cannot show that the accused committed the offence, the accused deserves to be discharged. At the stage of framing charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose existence of all the ingredients constituting alleged offence. 14. Referring to the above legal citations as well as the provisions of sections 227 and 228 of the Code it is submitted that this court has inherent power to quash the proceeding before the court and set aside the charge on the ground of insufficient evidence. 14. Referring to the above legal citations as well as the provisions of sections 227 and 228 of the Code it is submitted that this court has inherent power to quash the proceeding before the court and set aside the charge on the ground of insufficient evidence. Reliance is placed on the observation made in Muni Swami (supra) that for the purpose of determining whether this is sufficient ground for proceeding against the accused, the court possesses a comparatively wider discretion in exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. 15. Citing the statements of witnesses in the present case it is contended that the statement of witnesses indicated above, if unrebutted, will not obviously lead to conviction and, therefore, the accused-petitioners are entitled to be discharged due to insufficiency of evidence. 16. I have considered the submissions of learned senior counsel Mr. Goswami as well as the citations relied on. Also considered the submissions of learned Addl. P.P., Mr. Sarma for the State. 17. It is vehemently argued by learned State counsel that in the present case in view of specific allegations and statements of the informant supported by surrounding facts and circumstances, a prima facie case is made out against all the accused-persons and only because the other witnesses could not say names of all accused-persons, the same cannot be a ground to deny the complicity of the present accused-petitioners with the alleged offence. There is no illegality in framing of charge by the trial court and in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the hon'ble Apex Court has cautioned the court to invoke the provision of section 482 of the Cr. PC sparingly and rarest of rare cases. The guidelines given in the said case are referred by the learned Addl. PP to submit that for the purpose of framing charge the learned trial court has ample material on record and the court has power to sift the relevant material for the purpose of framing charge by applying its judicial mind, which is much present in the present case. PP to submit that for the purpose of framing charge the learned trial court has ample material on record and the court has power to sift the relevant material for the purpose of framing charge by applying its judicial mind, which is much present in the present case. Refuting the contention that the other witnesses have denied the presence of the accused-petitioners at the place of occurrence it is pointed out that those witnesses have not specifically denied the presence of the three accused-petitioners but have simply stated that there were other 5/6 present at the time of occurrence along with Bipul Mahanta and Bijoy Sen, that in itself cannot belie the statement of the informant who claimed to have seen the present petitioners at the time of occurrence. The allegation of the informant at the time of framing charge cannot be discarded to be a false version in this case. 18. I have carefully gone through the statements of the witnesses including the informant. So far as the incident is concerned it would go to show that it has two parts. Initially while the informant about to enter his house two other accused-persons, namely, Bipul Mahanta and Bijoy Sen had an altercation with the informant for blinking head light of the vehicle upon the informant and after some hot altercation between them the informant went inside his house and locked the gate and went to sleep at about 11.30 p.m. The informant after a few hours woke up hearing sound of fire from outside and he immediately rushed out of his room and saw all the accused-persons escaping climbing the gate and his vehicle was burning. So the informant is the first person who saw the accused-persons in the light of the fire and it is only on his hue and cry the other witnesses arrived outside the house and in the meantime the accused-persons escaped climbing the gate. In this backdrop, naturally, the other witnesses could not see the present accused-persons. It is notable that it is only on the second episode of the occurrence the present petitioners were allegedly involved. The names of the accused-persons may not be known to all the witnesses but they have mentioned about 5/6 other boys along with the accused-Bipul Mahanta and Bijoy Sen. It is notable that it is only on the second episode of the occurrence the present petitioners were allegedly involved. The names of the accused-persons may not be known to all the witnesses but they have mentioned about 5/6 other boys along with the accused-Bipul Mahanta and Bijoy Sen. In this context, it will be quite illegal and improper to brush aside the testimony of the informant to be a false one as the same can be tested only in cross-examination. From the totality of the evidence on record and other facts and circumstances, recovery of the burnt vehicle from the house of the informant, there being no apparent hostility between the parties to file the case on personal grudges, etc., such evidence cannot be discarded and sufficient for the purpose of framing the charge. 19. Elaborating the provisions of sections 227 and 228 of the Cr. PC, in Priya Sharan (supra) it is held that at the stage of application of sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At the stage of framing charge the court has to consider the material on record with a view to find out if there is ground for presuming that the accused has committed the offence or there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. In Debertdra Nath (supra) it is held that expression in section 227 “hearing the submissions of the accused” means the hearing the submission of accused on the matters on record, documents, as filed by the prosecution. Similarly, in Prafulla Kumar (supra) it is also held that in exercising the jurisdiction under section 227 the court cannot act merely as a post office or mouthpiece of the prosecution but has to consider the broad probabilities of the case the total effect of the evidence and the documents produced before the court, any basic infirmities in the case and so on. This, however, does not mean that a Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. This, however, does not mean that a Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. While considering the question of framing charges the court has undoubted power to sift and weigh the evidence for limited purpose of finding out whether or not a prima facie case against the accused has been made out. 20. The scope and ambit of the provisions of section 227 of the Code is lucidly discussed in Niranjan (supra) as follows: ‘5. Section 227, introduced for the first time in the New Code, confers a special power on the Judge to discharge an accused at the threshold if “upon consideration”, of the record and documents he considers “that there is not sufficient ground” for proceeding against the accused. In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused. If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under section 228, if not he will discharge the accused. It must be remembered that this section was introduced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure. 6. The next question is what is the scope and ambit of the ‘consideration’ the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh, (1978) 1 SCR 257 this court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal, (1979) 2 SCR 229 , this court after considering the scope of section 227 observed that the words “no sufficient ground for proceeding against the accused”, clearly show that the Judge is not merely a post-office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face-value establish the ingredients constituting the said offence. After considering the case law on the subject, this court deduced as under: (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the un-doubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima fade case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code of Judge which (sic.) under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.’ 21. Turning back to the case at hand, it will be found that the statement of the informant and other witnesses on record, a prima facie case is made out against the accused-persons to proceed with the trial. The defence cannot be permitted to shut the prosecution case at the threshold on the ground of falsity of the allegation which, of course, is a matter to be tested in course of trial. The learned trial court cannot make a roving inquiry at the stage of framing charge as to the authenticity of the allegation. The law as to when criminal proceeding can be quashed by the High Court in exercise of powers under section 482 of the Cr. PC or under article 226 of the Constitution has been laid down by the hon'ble Apex Court in Bhajan Lal (supra) in paras 102, 103, which is constantly followed in a series of decisions, viz., Pepsi Food Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 , Minu Kumari v. State of Bihar, (2006) 4 SCC 359 , etc. 22. PC or under article 226 of the Constitution has been laid down by the hon'ble Apex Court in Bhajan Lal (supra) in paras 102, 103, which is constantly followed in a series of decisions, viz., Pepsi Food Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 , Minu Kumari v. State of Bihar, (2006) 4 SCC 359 , etc. 22. For better appreciation, the guidelines set forth in the Bhajan Lal (supra) case is quoted below: “(a) [W]here the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code; (c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. [305D-H; 306A-E] 8.2. [305D-H; 306A-E] 8.2. In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence justified on and this case does not call for the exercise of extraordinary or inherent powers of the High Court to quash the FIR itself. [307B] State of West Bengal v. S.N. Basak, (1963) 2 SCR 52 ; distinguished.” 23. None of the above principles is applicable in the case at hand. Although the width of the powers of the High Court under section 482 of the Cr. PC and article 227 of the Constitution is unlimited, whereunder in the interest of justice the High Court can make such orders as may be required to secure ends of justice and to prevent the abuse of process of any court but the application of the provision is justified only if such a miscarriage of justice is reflected in a given case to prevent the abuse of process of any court. The saving of the High Court's inherent power is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. 24. From what has been discussed above the challenge made by the petitioners to the impugned order of charge and the criminal proceeding is not as such to hold that such proceeding is wholly without legal evidence or a lame prosecution so as to quash the further proceeding. There appears no abuse of process of the court in framing the charge against the petitioners. This court is unable to accept the contention raised before this court. Accordingly the petition is dismissed. Return the record of GR case 249/2005, which was earlier called for.