Md. Mirjum Ali @ Mijun Ali S/o- Raju Ali v. State Of Assam
2020-06-11
MANISH CHOUDHURY
body2020
DigiLaw.ai
JUDGMENT : This criminal petition under Section 482, Code of Criminal Procedure, (1973) (‘the Code’ and/or ‘the CrPC’, for short) is directed against the criminal proceeding in Sessions Case no. 126(N)/2015, presently pending before the Court of learned Sessions Judge, Nagaon, Assam. 2. In order to appreciate the nature of challenge, it deems proper to narrate the relevant background facts which have emerged from the records of Sessions Case no. 126(N)/2015 and this criminal petition. 2.1. The respondent no. 2 (hereinafter also referred to as ‘the informant’, at places, for easy reference) had lodged a First Information Report (FIR) on 02.09.2014 before the Officer In-Charge, Nagaon Sadar Police Station against 3 (three) persons as accused. The petitioner no. 1 was named as accused no. 1 whereas the petitioner no. 2 and the petitioner no. 3 were named as accused no. 2 and accused no. 3 respectively. The accused no. 2 and accused no. 3 are the father and the mother respectively of the accused no. 1. 2.2. In the FIR so lodged, the informant had, inter-alia, alleged that the accused no. 2 and the accused no. 3 offered a proposal of marriage for their son i.e. the accused no. 1, who was aged about 17 years at that time, with his daughter, who was aged about 15 (fifteen) years at that time. The daughter of the informant (hereinafter also referred to as ‘the victim’, at places, for convenience) has been impleaded as the respondent no. 3 in this criminal petition. The informant refused the proposal given by the accused nos. 2 and 3. It was alleged that at about 09-00 a.m. on 02.09.2014, the accused no. 1 had taken away the victim while she was on her way to her school. It was further alleged that the accused no. 2 and the accused no. 3 were also involved in the said act of kidnapping. It was requested by the informant to recover his victim daughter. 2.3. On receipt of the said FIR, the same was registered as Nagaon Police Station Case no. 1447/2014 (Corresponding G.R. Case no. 3290/2014) under Sections 366A/34, Indian Penal Code and the case was entrusted to a Sub-Inspector of Police for investigation. After completion of investigation, the Investigating Officer (I.O.) filed a charge sheet under 173, CrPC being Charge Sheet no. 761/2014 dated 26.11.2014 finding a prima facie case against the accused no.
1447/2014 (Corresponding G.R. Case no. 3290/2014) under Sections 366A/34, Indian Penal Code and the case was entrusted to a Sub-Inspector of Police for investigation. After completion of investigation, the Investigating Officer (I.O.) filed a charge sheet under 173, CrPC being Charge Sheet no. 761/2014 dated 26.11.2014 finding a prima facie case against the accused no. 1 to proceed for trial for the offence under Section 366A, IPC. The accused no. 2 and the accused no. 3 were not charge sheeted. On submission of the charge sheet, the committal court by order dated 26.06.2015 committed the case to the Court of Sessions, Nagaon finding the offence under Section 366A, IPC a sessions triable one. On receipt of the case record of G.R. Case no. 3290/2014 the same was registered as Sessions Case No. 126(N)/2015. The learned Sessions Judge after securing the appearance of the accused and after hearing the learned Public Prosecutor and the defence counsel and upon perusal of the record of the case, had framed a charge under Section 366, IPC against the accused on 28.05.2015. The charge was explained and read over to the accused and the accused pleaded not guilty and claimed to be tried. Accordingly, the trial of the case proceeded. 3. It is seen from the charge sheet that the Investigating Authority had cited 7 (seven) nos. of witnesses as prosecution witness to establish the case of the prosecution. Included amongst them were the Investigating Officer and the Doctor. On 30.06.2015, 2 (two) prosecution witnesses were examined by the prosecution and there were also cross-examined by the defence on that day. Thereafter, two prosecution witnesses – P.W.1 and P.W.2 -were discharged. On 08.09.2015, P.W.3 was examined, cross-examined and discharged. On 07.06.2016, P.W.4, the doctor, was examined and cross-examined and P.W.5 was examined and cross-examined on 09.08.2016. It transpires that two of the witnesses from amongst the listed witnesses remained to be examined and it was upto the prosecution to examine them or not. 4. At that stage, the 3 (three) petitioners have approached this Court by way of this criminal petition seeking setting aside and quashing of the criminal proceeding in Sessions Case no. 126(N)/2015 stating that if the criminal proceeding is allowed to survive, it will be an abuse of the process of Court. 5.
4. At that stage, the 3 (three) petitioners have approached this Court by way of this criminal petition seeking setting aside and quashing of the criminal proceeding in Sessions Case no. 126(N)/2015 stating that if the criminal proceeding is allowed to survive, it will be an abuse of the process of Court. 5. It is contended in this petition that the Investigating Officer (I.O.) of the case, during the course of investigation, had recorded the statement of the victim on 03.09.2014. Further contention of the petitioners is to the effect that in her statement recorded under Section 161, CrPC, the victim had clearly stated that she had love affair with the petitioner no. 1 i.e. the accused no. 1 for about 6 (six) months. It is also contended that the victim had stated that the accused no. 1 did not kidnap her and on 01.09.2014, she had gone away with the accused no. 1 and stayed in a known person’s house for a night. On 03.09.2014, the victim along with the family members of the accused no. 1 came to the police station and got her statement recorded. Contention is further made that during medical examination of the victim, it had come to light that the victim girl was aged about 18-19 years. It is also contended that the victim in her statement recorded under Section 164, CrPC on 05.09.2014, had categorically stated that she had love affair with the accused no. 1 and she herself called the accused no. 1 on 01.09.2014. The victim cited the ground for her leaving the parental house as scolding by her parents on 31.08.2014. It is contended that the victim had stated that she was an adopted girl and her mother never talked to her anything with love. Being disturbed, she stated to have called the accused no. 1 and had gone with him. 6. Contending as above, the 3 (three) petitioners have sought quashing and setting aside of the criminal proceeding of Sessions Case no. 126(N)/2015. 7. From the records of Sessions Case no. 126(N)/2015, it appears that the petitioner no. 2 and the petitioner no. 3 who were named as accused no. 2 and accused no. 3 in the FIR, have not charge sheeted by the Investigating Officer (I.O.) in Charge Sheet no. 761/2014 dated 26.11.2014. As such, they have not been facing the trial.
7. From the records of Sessions Case no. 126(N)/2015, it appears that the petitioner no. 2 and the petitioner no. 3 who were named as accused no. 2 and accused no. 3 in the FIR, have not charge sheeted by the Investigating Officer (I.O.) in Charge Sheet no. 761/2014 dated 26.11.2014. As such, they have not been facing the trial. In such view of the matter, it stands no reason for the petitioner no. 2 and the petitioner no. 3 to be aggrieved by the criminal proceeding of Sessions Case no. 126(N)/2015. 8. As can be seen from the sequence of events, delineated above, the accused no. 1 on receipt of summons from the Court of learned Sessions Judge (‘the trial court’, for short) had duly appeared. After his appearance before the learned trial court, charge under Section 366, IPC was framed and thereafter, read over and explained to the accused and he pleaded not guilty to the charge and claimed to be tried. Thereafter, the accused duly participated in the trial. The prosecution had examined 5 (five) prosecution witnesses and all the 5 (five) prosecution witnesses were duly cross-examined on behalf of the accused. It appears that the defence had taken all the pleas during the cross-examination of the prosecution witnesses. As has been iterated above, in the charge sheet, the Investigating Officer had cited 7 (seven) nos. of witnesses including the police officers, who were supposed to prove the case of the prosecution. Out of those 7 (seven) witnesses, the examination and cross-examination of 5 (five) of those witnesses have already been over. The stage of trial have reached an advanced stage. From the list of witnesses cited in the charge sheet, only one or two witnesses have remained to be examined as on date, that too, if the prosecution decides to examined them. It is at that stage, the petitioners reiterating the same defence pleas which the sole accused has taken in trial, have approached this Court by way of this criminal petition seeking quashing of the criminal proceeding of Sessions Case no. 126(N)/2015. 9. The inherent jurisdiction under Section 482, CrPC can be exercised under three situations (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice.
126(N)/2015. 9. The inherent jurisdiction under Section 482, CrPC can be exercised under three situations (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. The inherent powers though very wide, have to be exercised only in appropriate cases for the purpose of doing real and substantial justice and the powers must be exercised with caution. The wide powers available under Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The Court while exercising powers under Section 482, CrPC does not function as a court of appeal or revision. While exercising jurisdiction under Section 482 of the Code, the Court is not supposed to undertake an exercise to find out the correctness of the allegations in a FIR and it does not embark upon an enquiry as to the reliability, genuineness, etc. or otherwise of the accusations made in the FIR. There is no averment to that effect in this criminal petition that the accused has been prejudiced in any manner during the course of the trial. What have been taken as defence pleas during the course of the trial have been sought to be agitated in this criminal petition at an advanced stage of the trial where he submitted to the jurisdiction of the learned trial court by appearing before it and thereafter, participated in the trial without raising any objection since the very beginning. Therefore, this Court finds no merit in this criminal petition and resultantly, the same is dismissed. The interim order dated 29.09.2016 stands recalled. 10. It is, however, observed that any observation made herein shall not be construed to be an observation to the prejudice of the accused in the ongoing trial. It is expected that the learned trial court will proceed with the trial in an expeditious manner. With the observations made and directions given above, this petition stands closed. There shall, however, be no order as to cost.