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2019 DIGILAW 587 (GAU)

Moynal Hoque v. State of Assam

2019-05-13

HITESH KUMAR SARMA

body2019
JUDGMENT : 1. This is a Criminal Revision Petition, filed under Sections 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 23.06.2010 passed by the learned Sessions Judge, Dhubri in Criminal Appeal No. 14(2)/2009 setting aside the judgment and order of conviction and sentence passed by the learned Sub-Divisional Judicial Magistrate, Bilasipara in GR(CPR) Case No. 1/2007 under Section 498(A) of the IPC and further directing re-trial of the petitioner on framing of fresh charge. 2. Heard Mr. A. Wahab, learned counsel for the petitioner as well as Mr. RJ Baruah, learned Additional Public Prosecutor, appearing for the State respondent. 3. I have perused the petition as well as the annexures furnished therewith. I have also perused the Lower Court Records. 4. From the judgment of the learned trial court, it appears that co-accused, Khabiruddin was acquitted and the present petitioner, Moynal Hoque was convicted and sentenced. The learned appellate court in its judgment noticed that charge against co-accused, Khabiruddin who has already been acquitted by the learned court below was framed, read over and explained to him, whereas no formal charge was framed against the present petitioner although he has also been convicted and sentenced. The learned appellate court has observed in its judgment that the accused is entitled to know the particulars of charges against him and, in the event, the particulars of charges are not explained to him, the same is prejudiced to his interest. 5. In the instant case, on perusal of the learned appellate courts order as well as the record of the court below, it is found that charge was evidently framed against co-accused, Khabiruddin under Section 498(A) of the IPC whereas no charge was framed against the present petitioner, Moynal Hoque. 6. That being so, the present petitioner who is convicted did not know the charge against him since the same was never explained to him. Accordingly, he is seriously prejudiced and the learned appellate court below has rightly observed the same and remanded the case back with the directions contained therein. 7. That being so, to prevent the prejudice to the present petitioner, it is necessary to consider the charge against him and if found that there are materials, the same be explained to him and further proceed with the trial of the case afresh, as directed by the learned appellate court. 7. That being so, to prevent the prejudice to the present petitioner, it is necessary to consider the charge against him and if found that there are materials, the same be explained to him and further proceed with the trial of the case afresh, as directed by the learned appellate court. However, since there was no appeal preferred against the judgment acquitting the co-accused Khabiruddin, there cannot be re-trial against him. The direction in the judgment of the learned appellate court shall confine to the petitioner of this petition only. 8. Therefore, the conviction and consequent sentence imposed upon the petitioner by the learned court below was without a formal charge against him. That being so, this is a curable irregularity. Thus, as directed by the learned appellate court, if a formal charge is famed against him, and there is already evidence on such charge, in that event, the evidence be tendered to him with an opportunity to him to cross-examine the witnesses, if he so desires. In the event, there is no material to frame charge, the court will pass appropriate order accordingly. 9. Accordingly, this revision petition is disposed of with the above observations and directions. 10. Send down the LCR along with a copy of this judgment.