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2021 DIGILAW 740 (GAU)

Jayanta Boruah v. State of Arunachal Pradesh

2021-11-26

ACHINTYA MALLA BUJOR BARUA

body2021
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. B. Dutta, learned counsel for the petitioner and Ms. L. Hage, learned Additional Public Prosecutor for the State. 2. A final report had been submitted by the police in respect of Anini P.S. Case No. 25/2009 under section 406/407/411 of the IPC. The final report in the ultimate paragraph provides as extracted herein-below: “........Therefore, under the above circumstances under section 406/407, IPC is well established against Shri Garo Makek for not shifting of PDS rice to Anini though his party has chosen the rice from FCI based depot Kharsang and store at Roing but due to personal initiative by Shri Tasku Tayee these rice were brought to Anini and distributed. But as per the investigation the involvement of Shri Jayanta Barauh and Shri Punnya Apum is not found. The draft amount was prepared from the account of Shri Punnya Apum in that case also Shri Jayanta Baruah is not found to be involved even and Shri Punnya Apum. Therefore, the Hon'ble Court is requested to discharge Shri Jayanta Baruah and Shri Punnya Apum in this case. The witness mentioned in column not may be send to Court by fixing the hearing of date to prove the case.” 3. A reading of the extracted portion of the final report goes to show that as per the investigation the involvement of the petitioner-Shri Jayanta Boruah was not found and, therefore, there was a prayer before the court that the petitioner-Shri Jayanta Boruah be discharged. In respect of the aforesaid final report, the order dated 27.7.2021 had been passed by the learned Judicial Magistrate First Class, Anini, Dibang Valley District, Arunachal Pradesh. 4. A reading of the order dated 27.7.2021 in paragraph 2 thereof goes to show that the learned Judicial Magistrate First Class, Anini had taken note of the prayer of the investigating officer for discharging the petitioner-Shri Jayata Boruah as his involvement could not be found in the investigation. In the 5th and 7th paragraph of the order dated 27.7.2021, the learned Magistrate had arrived at conclusions as extracted: “5. In the 5th and 7th paragraph of the order dated 27.7.2021, the learned Magistrate had arrived at conclusions as extracted: “5. As such, in the interest of justice, I deem it fit to proceed further without hearing the Additional P.P. in view of the above, I am of the considered opinion that the prayer of I/O for discharging Shri Jayanta Baruah and Puinnya Apum cannot be allowed and the same stands rejected.” “7. Since there is enough material on record to proceed against the accused-person, I hereby take cognizance of the offence punishable under section 406/407, IPC against the accused-persons, namely, Shri Garo Makek, Shri Jayanta Baruah, and Shri Puinnyo Apum.” 5. A reading of the extracted portion of the order of the learned Magistrate goes to show that in the interest of justice the learned Magistrate was of the view that the discharge of the petitioner-Shri Jayanta Boruah cannot be allowed and accordingly rejected by providing that there is enough materials on record to proceed against the accused-person and, therefore, cognizance was also taken against the petitioner-Shri Jayanta Boruah. 6. Apparently, the said power was invoked by the learned Magistrate under section 319 of the Cr.P.C. In the Constitution Bench judgment of the Hon'ble Supreme Court in Hardeep Singh vs. State of Punjab and Others, (2014) 3 SCC 92 , in paragraph 106 thereof, amongst others, the Supreme Court was of the view that in the absence of such satisfaction being arrived at by the Magistrate that the materials on record if remained un-rebutted would lead to a conviction, the court should refrain from exercising the power under section 319 of the Cr.P.C. 7. In the instant case, we have noticed that in the order impugned the learned Magistrate was merely of the view that it was deemed fit not to discharge the petitioner-Shri Jayanata Boruah and secondly, there is enough materials on record to proceed against the petitioner-Shri Jayanta Borauh. 8. Merely expressing a view that the learned Magistrate deems it fit or that the learned Magistrate if of the view that there is enough materials to proceed against the petitioner would not satisfy the requirement of being satisfied as regards existence of material on record which if remained un-rebutted, would lead a conviction. From such point of view we are unable to sustain the order dated 27.7.2021 in its present form. Accordingly, the same stands set aside. From such point of view we are unable to sustain the order dated 27.7.2021 in its present form. Accordingly, the same stands set aside. The matter stands remanded back to the learned Judicial Magistrate First Class, Anini, Dibang Valley District for fresh consideration on the issue as to whether the petitioner-Shri Jayanta Boruah is required to be discharged or proceeded against in the given matter. And in doing so, the satisfaction that may be arrived on the basis of material on record which if remains un-rebutted may lead to a conviction, be also appropriately appreciated. 9. The criminal petition allowed as indicated.