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2020 DIGILAW 27 (GAU)

Md. Anowar Hussain v. State Of Assam

2020-01-07

AJIT BORTHAKUR

body2020
JUDGMENT 1. Heard Mr. A.I. Uddin, learned counsel for the petitioner. Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam for the State/respondent No. 1 and Mr. Haldar, learned counsel for the respondent No. 2/informant. 2. This petition under Section 482 Cr.P.C. is filed by the petitioner praying for quashing of the proceeding in G.R. Case No. 63/2015 (arising out of Lanka P.S. Case No. 10/2015) under Sections 143/447/427/323/506 of the IPC pending in the Court of learned Judicial Magistrate, 1 st Class, Hojai at Sankardev Nagar. 3. The petitioners contention, in a nutshell, is that the respondent No. 2 lodged an FIR before the Officer In-charge of Lanka P.S., on 08.01.2015, alleging, interalia, that the petitioner and 4(four) others wrongfully trespassed into his house premises by damaging the boundary bamboo fencing and assaulted him. Accordingly, the above noted case was registered and after completion of investigation, the police submitted charge-sheet against 3(three) accused persons including the petitioner showing him absconder, under Sections 341/352/294/506/34 of the IPC. 4. On receipt of the charge-sheet and on being made over for trial, the learned Judicial Magistrate, 1 st Class, Hojai took cognizance of the offences and issued summons to the petitioner and eventually, issued warrant of arrest against him. The petitioner has contended that he has been falsely implicated in the case as on the date of the alleged occurrence, he was away in Mumbai in connection with his Visa clearance to travel to Saudi Arabia and on receipt of the information about the case, appeared before the Investigating Officer, who, in turn, obtained his signature on some papers. It is also further contended that there is a land dispute between him and the informant, and in this regard a proceeding being MR Case No. 270/2014 under Section 145 Cr.P.C. was drawn up, which was subsequently dropped on 13.03.2015. 5. Moving the petition, Mr. A.I. Uddin, learned counsel for the petitioner, submits that the case, at its face value, is a false and concocted one and purely civil in nature. According to Mr. Uddin, the continuation of trial of the case is unnecessary as it will be amount to abuse of the process of Court and an injustice to him inasmuch as no offence is disclosed. Mr. According to Mr. Uddin, the continuation of trial of the case is unnecessary as it will be amount to abuse of the process of Court and an injustice to him inasmuch as no offence is disclosed. Mr. Uddin further emphatically submits that mere mention of the petitioners name, without specific disclosure, of allegation against the petitioner does not justifying launching of criminal proceeding against him. 6. Per contra, Mr. B.B. Gogoi, learned Addl. Public Prosecutor, appearing for the State/respondent No. 1 submits that as after the allegations made in the FIR were duly investigated and prima facie case is established with the filing of the charge-sheet against the petitioner, it cannot be inferred that there is no ground to launch criminal prosecution against him. Mr. Gogoi further submits that although the FIR does not disclose specific allegation against the petitioner, on completion of investigation abundance of incriminating materials have come to light against the petitioner and as such, the case cannot be quashed in respect of the petitioner in exercise of the inherent jurisdiction under Section 482 Cr.P.C. 7. Mr. B. Haldar, learned counsel for the respondent No. 2/informant, submits that filing of chargesheet itself indicates existence of prima facie incriminating evidence against the petitioner showing commission of offence and the Title Suit No. 61/2015 was filed by the informant, on 29.07.2015, after filing of the FIR on 08.01.2015. Mr. Haldar, therefore, submits that as the case has proceeded to the evidence stage, after offences were explained to the co-accused persons, on 09.01.2015, the case may not be quashed in respect of the petitioner. 8. I have considered the above arguments advanced by the learned counsel of both sides and perused the record of G.R. Case No. 63/15. 9. It may pertinently be mentioned that Section 482 Cr.P.C. envisages three circumstances, under which the inherent jurisdiction of the High Court may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of the Courts, and (iii) to otherwise secure the ends of justice. It may further be mentioned that while exercising the powers under the Section, the Court does not function as a Court of appeal or revision. In Zandu Pharmaceutical Works Ltd. & Ors. Vs. Mohd. It may further be mentioned that while exercising the powers under the Section, the Court does not function as a Court of appeal or revision. In Zandu Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & another, reported in (2005) 1 SCC 122 , the Honble Supreme Court held that the inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section. In para 10 of the said judgment, it was observed that when an information is lodged at the police station, and an offence is registered, then the malafides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court, which decides the fate of the accused person. The allegations of malafides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. This High Court in Tazul Islam Hazarika(Md) Vs. State of Assam and Anr., reported in 2004(4) GLT 99 held that once the High Court is satisfied after considering all the materials placed before it that continuance of further proceeding before a criminal Court would be injustice, the power under Section 482 Cr.P.C. can definitely be exercised. Honble the Supreme Court in Rajeswar Tiwari & Ors Vs. Nanda Kishore Roy, reported in (2010) 8 SCC 442 deprecated the widely practiced growing tendency of giving a purely civil dispute the colour of criminal case. 10. On scrutiny of the allegations made in the FIR, it is noticed, the name of the petitioner appeared as one of the perpetrators of the offences committed collectively with others and the investigation following lodging of the FIR revealed prima facie criminal acts, where materials collected during investigation prompted the police in filing the charge-sheet against the petitioner and others. The civil suit was filed after the aforesaid FIR was lodged although parallely a criminal proceeding under Section 145 Cr.P.C. was also pending, which was, of course, later on, dropped on 13.03.2015. The civil suit was filed after the aforesaid FIR was lodged although parallely a criminal proceeding under Section 145 Cr.P.C. was also pending, which was, of course, later on, dropped on 13.03.2015. The present criminal case being G.R. Case No. 63/2015 is pending in the Court of learned Judicial Magistrate, 1 st Class, Hojai for, interalia, the alleged acts of causing damage to the boundary wall and then, after trespass, causing assault on the informant by the petitioner and others over a dispute pertaining to land between them. Such criminal alleged acts of taking law in hand undoubtedly cannot wholly be a civil dispute, which certainly needs a trial to finally decide the allegations. Therefore, at the present stage of trial of the case, the defence case cannot come into consideration side by side with the prosecution case and consequently, does not justify quashing of the entire proceeding holding a view that those allegations are false and that of wholly a civil dispute. 11. Therefore, the petition stands dismissed. 12. The interim stay order of the proceeding, dated 15.12.2016, in respect of the petitioner is hereby vacated. Return the LCR.