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2019 DIGILAW 558 (GAU)

Jugal Thakuria v. State of Assam

2019-05-07

HITESH KUMAR SARMA

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JUDGMENT : 1. Heard Mr. K. Agarwal, learned senior counsel for the petitioner. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, appearing for the State respondent No. 1 as well as Mr. J. Barman, learned counsel appearing for the respondent Nos. 2 to 5. 2. Vide this criminal revision petition, filed under Sections 397/401 of the Cr.PC, the order, dated 23.03.2009, passed by the learned Additional Sessions Judge (Fast Track Court) o. 3, Kamrup, Guwahati in Sessions Case No. 65(K)/2006 has been challenged, the same being improper, illegal and incorrect. 3. The fact leading to the aforesaid order is that the accused police officials in Sessions Case No. 65(K)/2006 pending in the court of the learned Additional Sessions Judge (Fast Track Court) No. 3, Kamrup, Guwahati were charged, inter alia, under Sections 302 of the IPC for committing murder by shooting one person in the premises of chitranala factory situated at Boko. 4. As per the argument of the accused police officials, they were on official duty in the chitranala factory premises and to that effect General Diary entries were there, which were, of course, brought on record. 5. The submission made by the learned counsel for the private respondents is that since as the police officials were on official duty, it is necessary to obtain prosecution sanction as required under Section 197 of the Cr.PC and the learned court below has rightly passed the order impugned herein requiring prosecution sanction. 6. The learned senior counsel for the petitioner has submitted that prosecution sanction under Section 197 of the Cr.PC is not necessary in the instant case, in view of the fact that accused-petitioners might be on law and order duty in the chitranala factory premises and not on the duty of maintenance of public order. Therefore, considering the provisions of Section 197(3) of the Cr.PC. the learned court below ought not to have passed the order requiring prosecution sanction. From the record, it appears that there is a notification issued by the Government of Assam, dated 29.05.1990 being No. HMA- 280/88/41. According to the learned senior counsel for the petitioner, this notification is not applicable so far the accused police officials are concerned as the accused police officials might be there for law and order duty but definitely not for the duty of maintenance of public order. 7. According to the learned senior counsel for the petitioner, this notification is not applicable so far the accused police officials are concerned as the accused police officials might be there for law and order duty but definitely not for the duty of maintenance of public order. 7. The learned counsel for the private respondents has vehemently opposed this submission made by the learned senior counsel for the petitioner and submitted that the instant case is covered by the decisions of the Hon’ble Supreme Court, and therefore, there is no need to look back to the notification and rather according to him, the notification also supports his contention that the prosecution sanction is necessary in the instant case, so far the prosecution of the police officials as accused is concerned. 8. The learned senior counsel for the petitioner has submitted that there is an information that a dacoity would be committed in the premises of the chitranala factory, and therefore, the accused police officials were detailed there. If at all they were detailed as above, it might be for law and order duty and not for maintenance of public order. He has further submitted that the impugned order, although passed under Section 197 of the Cr.PC yet, it does not appear from the order that the purport of Sub-Section 3 thereof was taken into account while taking a decision by the learned court below vide the said order. He has further submitted that Section 197(1) of the Cr.PC is not applicable in the facts of the instant case. 9. Whatever it may be, on consideration of the rival submissions made by the learned counsel for the parties, this court is of the view that the case be remanded back to the learned jurisdictional Sessions Judge and the learned jurisdictional Sessions Judge shall hear both the parties on the issues raised before this court as indicated above, and shall pass a speaking order in respect of applicability of Section 197 of the Cr.PC and the provisions thereof in respect of the accused police officials within 1 (one) month from the date of receipt of the records. The records be sent to the leaned Sessions Judge, Kamrup (Metro), Guwahati who will find out whether the record is in the district of Kamrup (Metro) or has been transferred in the meantime to the separated district at Kamrup, Amingaon and if the record has not been transferred yet, he will look into that aspect of the matter and take necessary steps to transfer the case within 15 (fifteen) days from the date of receipt of the record. 10. In view of the above, the order, dated 23.03.2009 passed by the learned Additional Sessions Judge (Fast Track Court) o. 3, Kamrup, Guwahati in Sessions Case No. 65(K)/2006 is set aside. 11. With the above observations and directions, this petition stands disposed of. 12. Send down the LCR, if available, with a copy of this judgment.