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2020 DIGILAW 585 (GAU)

Anima Borah v. State of Assam

2020-06-19

MANISH CHOUDHURY

body2020
JUDGMENT : This criminal petition under Section 482, Code of Criminal Procedure, 1973 (‘the Code’ and/or ‘the CrPC’, for short) read with Article 227 of the Constitution of India, is filed seeking quashing of the charge sheet being Charge Sheet no. 443/2017 dated 05.08.2017 submitted in connection with G.R. Case no. 1275/2016, arising out of Dibrugarh Police Station Case no. 378/2016, and the order taking cognizance dated 15.09.2017 passed by the learned Judicial Magistrate, 1st Class, Dibrugarh (‘the trial court’, for short) in so far as the present petitioners are concerned. 2. A brief narration of the facts which have led the present petitioners to file the instant petition before this Court can be exposited as under : 2.1. The respondent no. 2 as the informant, had lodged a First Information Report (FIR) on 19.03.2016 before the Superintendent of Police, Majuli stating, inter alia, that he married one Ms. Nirmali Borah, a resident of Santipur, Sivasagar in December, 2014. After the marriage, they started residing in a rented house at Dibrugarh. After few days of the marriage, he came to know that Ms. Nirmali Borah was already legally married to one Sri Jibul Gogoi of Dibrugarh and thereafter, to one Sri Arun Tanti of Tinsukia. It was alleged that Ms. Nirmali Borah got married with Sri Jibul Gogoi in the year 2009 and thereafter, she got married again with Sri Arun Tanti on 12.04.2013. On being informed and provided with court documents by the ex-husbands of the lady, when the informant communicated the matter with the family members of Ms. Nirmali Borah i.e. the petitioner no. 1, the petitioner no. 2 and the petitioner no. 3 who are the mother, brother and sister of Ms. Nirmali Borah respectively, came and took all the belongings from the rented house of the informant. It was alleged that the family members of Ms. Nirmali Borah maintained secrecy about her previous marriages and thereby, abetted the illegal acts of Ms. Nirmali Borah. When the informant asked to the family members of Ms. Nirmali Borah about the reasons behind such act of cheating, etc. they threatened the informant with hired goons and also cautioned him of dire consequences. It was further alleged that when the informant came back from Dibrugarh in March, 2016, the present petitioners had threatened his family members with their lives and thereby, caused mental tortures. Nirmali Borah about the reasons behind such act of cheating, etc. they threatened the informant with hired goons and also cautioned him of dire consequences. It was further alleged that when the informant came back from Dibrugarh in March, 2016, the present petitioners had threatened his family members with their lives and thereby, caused mental tortures. Further allegation was made to the effect that the petitioners had threatened the father and the brother of the informant also. 2.2. On receipt of the said FIR, the same was forwarded to the Officer In-Charge, Jengraimukh Police Station. The Officer In-Charge, Jengraimukh Police Station treating it as the FIR, registered a case being Jengraimukh Police Station Case no. 13/2016 and investigation was initiated. Thereafter, on the ground of jurisdiction, as permitted by the Court at Majuli, the case was transferred to Dibrugarh Police Station and accordingly, Dibrugarh Police Station Case no. 378/2016 came to be registered on 17.05.2016 for offences under Sections 420/494/406/427/506/34, Indian Penal Code (IPC). 2.3. It transpires from the case record that initially the matter was investigated by the Investigating Officer (I.O.) from Jengraimukh Police Station and after the case was transferred to Dibrugarh Police Station, the case was investigated by the I.O. from the Dibrugarh Police Station. During the course of investigation, the I.O. recorded the statements of the witnesses including that of the informant and also collected materials. After completion of investigation, the I.O. had submitted a charge sheet under Section 173, CrPC being Charge Sheet no. 443/2017 on 05.08.2017. In the said charge sheet, the I.O. had reported that he found sufficient materials to proceed against the charge sheeted accused persons, 4 (four) in number, for the offences punishable under Sections 420/494/406/427/506/34, IPC. The charge sheeted accused persons are (i) Ms. Nirmali Borah (accused no. 1), (ii) Smti Anima Borah (accused no. 2 and petitioner no. 1), (iii) Sri Jyotimory Borah (accused no. 3 and the petitioner no. 2) and (iv) Smti. Nibedita Borah Bhuyan (accused no. 4 and petitioner no. 3). On receipt of the charge sheet, the learned trial court took cognizance under Section 190(1)(b), CrPC and issued summons to the accused persons including the present petitioners, by an order dated 15.09.2017, directing the accused persons to appear before it on 11.12.2017. 2) and (iv) Smti. Nibedita Borah Bhuyan (accused no. 4 and petitioner no. 3). On receipt of the charge sheet, the learned trial court took cognizance under Section 190(1)(b), CrPC and issued summons to the accused persons including the present petitioners, by an order dated 15.09.2017, directing the accused persons to appear before it on 11.12.2017. On receipt of the summons, the present three petitioners out of the 4 (four) charge sheeted accused persons, have approached this Court by way of this criminal petition seeking relief’s, as mentioned herein above. 3. Heard Mr. R. Chakraborty, learned counsel for the petitioners and Mr. H. Sarma, learned Additional Public Prosecutor for the respondent no. 1, State of Assam. Though notice has been duly served on the respondent no. 2-informant and the names of learned counsel for the respondent no. 2-informant are reflected in the cause list, none has appeared on his behalf today on call. It is found that when the case was listed earlier on 18.05.2020, none had appeared on behalf of the respondent no. 2-informant on that occasion also. In view of the above situation, this criminal petition is taken up for consideration. 4. Mr. Chakraborty, learned counsel for the petitioners has submitted that no case can be said to be made out against the present petitioners in so far as the offences under Sections 420/494/406/427/506/34, IPC are concerned. He has further submitted that the offence under Section 494, IPC could not be attracted against the petitioners. It is also submitted that no ingredients constituting the other offences are also available. None of the witnesses, he submits, had alleged any concealment of fact on the part of the petitioners. He, therefore, submits that this is a case for quashing of the charge sheet and the order of the learned trial court whereby it had taken cognizance of the offences and issued summons to the present petitioners. 5. Mr. Sarma, learned Additional Public Prosecutor has submitted that the offences for which the learned trial court had taken cognizance, are to be tried as a warrant procedure case. The procedure of trial of warrant procedure cases instituted on a police report by Magistrate has been laid down in Chapter-XIX of the Code. 5. Mr. Sarma, learned Additional Public Prosecutor has submitted that the offences for which the learned trial court had taken cognizance, are to be tried as a warrant procedure case. The procedure of trial of warrant procedure cases instituted on a police report by Magistrate has been laid down in Chapter-XIX of the Code. Thus, it is open for the present petitioners, after their appearance before the trial court, to seek discharge on the premise that there is no sufficient ground to proceed against them. It is further submitted by Mr. Sarma that instead of availing the remedy under Section 239, CrPC, the petitioners have approached before this Court invoking inherent jurisdiction of this Court under Section 482, CrPC which is not to be encouraged. 6. I have heard the submissions made by the learned counsel for the parties and perused the materials available in the record of G.R. Case no. 1275/2016. 7. As has been mentioned above, after registration of Jengraimukh Police Station case no. 13/2016 which later on, on transfer, re-registered as Dibrugarh Police Station Case no. 378/2016, the matter was investigated into and after completion of investigation, the I.O. had submitted a charge sheet being Charge Sheet no. 443/2017 dated 05.08.2017. On receipt of the said charge sheet, the Officer In-Charge, Dibrugarh Police Station forwarded the same to the Court by his endorsement dated 12.08.2017. In the said charge sheet filed under Section 173(2)(i), CrPC, it was observed that on the basis of the materials collected during the course of investigation, a prima facie case for offences under Sections 420/494/406/420/506/34, IPC are found established against the four accused persons including the present three petitioners. 8. When a report forwarded by the Officer In-Charge of a Police Station to the Court under sub-section 2(i) of Section 173 of the Code is placed before the Magistrate for consideration with conclusion of the investigating officer that offences, mentioned therein, appear to have been committed by a particular accused person or accused persons, the Magistrate has three options, (i) he may accept the report and take cognizance of the offence and issue process, or (ii) he may disagree with the report and drop the proceeding, or (iii) he may direct further investigation under sub-section (3) of Section 156, CrPC and require the police to make a further report. In the case in hand, the learned trial court had opted for the first option and after taking cognizance on the report under Section 190(1)(b), CrPC, process was issued to all the charge sheeted accused persons by his order dated 15.09.2017. As it transpires from the summons, the trial court had taken cognizance for the offences under Sections 420/494/406/427/506/34, IPC. 9. Section 420, IPC defines cheating and dishonestly inducing delivery of property. If a person marries again during the lifetime of husband or wife, Section 494, IPC is attracted. Section 405, IPC defines criminal breach of trust and Section 406, IPC prescribes the punishment for the offence of criminal breach of trust. Section 427, IPC prescribes punishment for the offence of mischief causing damage to the amount of rupees fifty. Punishment for criminal intimidation is provided under Section 506, IPC whereas Section 34, IPC is attracted when a criminal act is done by several persons in furtherance of the common intention of all. Section 420, IPC, Section 494, IPC and Section 406, IPC provides for punishment of more than 2 years. Thus, a case involving the aforesaid alleged offences is to be tried as a warrant case instituted on a police report. Chapter-XIX of the Code has prescribed the procedure to be followed in respect of a trial of a warrant case by Magistrate. 10. As Section 238, CrPC and Section 239, CrPC are relevant in the case in hand, the same are discussed herein under. 10.1. Under Section 238, CrPC, when in a warrant case instituted on a police report the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that the accused has been supplied with the necessary documents like the police report, FIR, statements recorded under Section 161, CrPC of all the witnesses proposed to be examined by the prosecution. Any confession or statement recorded under Section 164, CrPC and any other document which have been mentioned by the prosecution to the Court, subject to some conditions, in reference to Section 173, CrPC, are also to be supplied to the accused persons in compliance of the provisions of Section 207, CrPC. Then, the case enters the next stage. 10.2. Any confession or statement recorded under Section 164, CrPC and any other document which have been mentioned by the prosecution to the Court, subject to some conditions, in reference to Section 173, CrPC, are also to be supplied to the accused persons in compliance of the provisions of Section 207, CrPC. Then, the case enters the next stage. 10.2. It is provided in Section 239, CrPC which is the stage for considering the charge, the Magistrate has to consider the police report and the documents sent with it under Section 173, CrPC and if necessary, has to examine the accused and also to hear the prosecution. The accused has also to be provided an opportunity of being heard at this stage. If on such examination and hearing, the Magistrate considers the charge to be groundless he would discharge the accused and record his reasons for so discharging the accused. The prosecution at that stage is not required to lead evidence. On the other hand, if he comes to a prima facie conclusion that there is ground for proceed with the trial he has to proceed to frame the charges. 10.3. It is settled law that if the materials which the prosecution proposes to adduce as evidence to prove the guilt of the accused even if after the same are fully accepted at their face value before it is challenged in cross-examination or rebutted by defence evidence, if any, do not disclose anything to the Magistrate to reach an opinion that the accused had committed the offence, then it is to be held that there is no sufficient ground for proceed with the trial. It is also true that if two views are possible and the Magistrate is satisfied that the evidence proposed to be led before him while giving rise to some suspicion but no grave suspicion against the accused persons, the Magistrate has discretion to discharge the accused persons. 10.4. In the case in hand, after taking cognizance of the offences, the learned Magistrate had issued summons to the accused persons including the present petitioners, to appear before the trial court. Thus, the stage of discharge as contemplated under Section 239, CrPC has not yet been reached in so far as the present petitioners are concerned. 11. The inherent power under Section 482 of the Code has envisages three situations, for exercise of such power, viz. Thus, the stage of discharge as contemplated under Section 239, CrPC has not yet been reached in so far as the present petitioners are concerned. 11. The inherent power under Section 482 of the Code has envisages three situations, for exercise of such power, viz. (i) to make such order as may be necessary to give effect to any order under the Code, or (ii) to prevent abuse of the process of any Court, or (iii) otherwise to secure the ends of justice. The scope and ambit of inherent jurisdiction under Section 482 of the Code is wide in amplitude and the same has to be exercised only in exceptional situation and with utmost care and caution. The situation which the inherent power conferred under Section 482 of the Code can be exercised, has been well settled by a long line of decisions of the Supreme Court as well as of this Court. 12. While considering a petition for quashing of a charge sheet, allegations made in the FIR and the materials collected during the course of investigation, are required to be considered. It is well settled that at this stage, truthfulness or otherwise of allegations are not required to be gone into as it is always a matter of trial. It is also settled that this Court should not ordinarily interfere after submission of a charge sheet and even before the Magistrate examines as to whether the accused persons deserve to be discharged under Section 239, CrPC or not. As has been discussed above, when a report is submitted to a Magistrate, the Magistrate is required to be prima facie satisfied with the facts disclosed whether the facts therein constitute any offence. 13. Contentions have been advanced on behalf of the petitioners herein that the materials collected during the course of investigation by the investigating authority do not disclose any of the offences for which the cognizance has been taken by the learned trial court by order dated 15.09.2017. As the accused petitioners have not preferred any application till date before the learned trial court seeking discharge, it is open for the accused-petitioners to file an application under Section 239, CrPC seeking discharge on the ground that the materials collected during the course of investigation do not prima facie reveal any offence against them. As the accused petitioners have not preferred any application till date before the learned trial court seeking discharge, it is open for the accused-petitioners to file an application under Section 239, CrPC seeking discharge on the ground that the materials collected during the course of investigation do not prima facie reveal any offence against them. It is open for the trial court after exercising of judicial discretion to take a view as to whether the materials available in the record of the case constitute any offence for framing of charge against the accused-petitioners or not. 14. In the case of K. Neelavni vs State represented by Inspector of Police and others, reported in (2010) 11 SCC 607 , the accused persons approached for quashing of the charge sheet filed against them even before the case had reached the stage of Section 239, CrPC. The Supreme Court has held that the High Court in its inherent jurisdiction under Section 482 of the Code ought not to have interfered after the submission of the charge sheet and even before the Magistrate examines as to whether the accused persons deserve to be discharged in terms of Section 239 of the Code. It is further observed that an opportunity is available to the accused persons at the stage of Section 239 of the Code to seek their discharge and in such matter, the High Court should have allowed the provisions of the Code to have their full play. 15. In the light of the discussions made above, this Court is not inclined to entertain this criminal petition under Section 482, CrPC by which inherent power has been sought to be invoked. It is open of the petitioners to approach the trial court to file appropriate application seeking their discharge under Section 239, CrPC on the grounds they have raised hereinabove. On filing of any such application, the learned trial court will consider such application for discharge in accordance with law. In the event the petitioners are aggrieved by any order passed in respect of their application seeking discharge, it is always open for the accused to take proper recourse available under the Code. 16. Thus, with the above observations this application is disposed of reserving the liberty to the petitioners to approach the learned trial court seeking discharge under Section 239, CrPC. There shall be no order as to cost.