Research › Search › Judgment

Gauhati High Court · body

2021 DIGILAW 99 (GAU)

Aminur Rahman v. State Of Assam

2021-02-09

RUMI KUMARI PHUKAN

body2021
JUDGMENT Rumi Kumari Phukan, J. - Heard Mr. D. Talukdar, learned counsel appearing for and on behalf of the petitioner/husband. Also heard Mr. M.P. Goswami, learned Addl. P.P., Assam appearing for the State respondent and Mr. K. Bhattacharjee, learned counsel appearing for and on behalf of the respondent/wife. 2. Having regard to the submission so made and the materials available in the case record, the matter is taken up for disposal at the admission stage itself. 3. The petitioner herein has been arrayed as the accused in the G.R. Case No.13735/2015 and the charge has been framed under Section 498(A) of the IPC, vide order dated 09.01.2019, by the Court of learned Judicial Magistrate 1st Class, Kamrup (M) at Guwahati. Challenging the order of framing of charge and the entire proceeding, the petitioner is before this Court by way of this petition under Section 482 of the CrPC, contending that the FIR as well as the statement of the victim coupled with the statement of the witnesses, so far examined by the prosecution under Section 161 of the CrPC, no charge is sustainable under Section 498(A) of the IPC and as such, framing of charge is bad in law and continuation of the proceeding without any supporting evidence from any independent witness will amount to abuse of the process of law, if such proceeding is allowed to continue. 4. Mr. D. Talukdar, the learned counsel for the petitioner/husband has referred to the allegation raised in the FIR, which reveals that the informant although has referred to three instances, two incidents happened in the year 2003 and 2013 respectively but both the matters have been compromised by the parties and the present FIR pertains to the third incident that took place on 16.12.2015, wherein the accused person threatened to kill her at night, along with some miscreants with him. 5. It is contended by the learned counsel for the petitioner that going by the allegation itself, the offence under Section 498(A) of the IPC is not attracted, neither the witnesses examined under Section 161 of the CrPC, has supported her contention. 6. 5. It is contended by the learned counsel for the petitioner that going by the allegation itself, the offence under Section 498(A) of the IPC is not attracted, neither the witnesses examined under Section 161 of the CrPC, has supported her contention. 6. Referring to a decision in the case of Union of India vs. Prafulla Kumar Samal and another, (1979) 3 SCC 4 , it has been submitted that the Court has ample power to quash the proceeding even after framing of charge, while the materials on record raise no grave suspicion against the accused but only on some suspicion about his involvement. Accordingly it has been submitted that the charge which has also been framed in a defective manner, in absence of any supporting evidence, it should be quashed and set aside. Such an order of framing of charge is also placed in record. 7. Mr. K. Bhattacharjee, learned counsel appearing for the respondent/wife has however vehemently contended that this Court, in a proceeding under Section 482 of the CrPC, cannot appreciate the evidence on record and statement of the witnesses recorded under Section 161 of the CrPC and such a inherent power can be invoked in an extra ordinary situation but not in a routine manner. 8. Referring to the decisions reported in (1) (The State Rep. by Inspector of Police, Q Branch, CID, Tirunelveli Range, Tamil Nadu vs. Mariya Anton Vijay, (2015) 3 Crimes(SC) 89), (2) ( Chilakamarthi Venkateswarlyu vs. State of Andhra Pradesh,2019 0 Supreme(SC) 815) and (3) ( Rajeev Kourav vs. Baisahab and others,2020 0 Supreme (SC) 143); it is contended that under the power under Section 482 of the CrPC, the High Court cannot act as an appellate Court, by appreciating and weighing the materials on record and cannot conclude that the charge sheet could not have been filed against the accused person and therefore no charges could have been framed. It has also been held in the aforesaid decision that, such appreciation of evidence is to be made by the trial Court only. 9. It has been clearly held that the inherent power under Section 482 of the CrPC has to be carefully exercised so that no injustice is done to the parties. It has also been held in the aforesaid decision that, such appreciation of evidence is to be made by the trial Court only. 9. It has been clearly held that the inherent power under Section 482 of the CrPC has to be carefully exercised so that no injustice is done to the parties. So far as regards the injustice in concerned, it is to be held that it should be of a grave and not of a trivial character and it should be palpable and clear and not doubtful and there should exist no other provision of law by which the party aggrieved could have sought relief. Under Section 482 of the CrPC, the High Court does not function as a Court of Appeal or Revision. 10. The aforesaid observations and findings have a bearing to the facts in issue before this Court now, in view of the dispute raised. According to the petitioner, no any offence is made out against the accused/petitioner to attract the offence under Section 498(A) of the IPC, in view of the last incident that has mentioned, which speaks only about the threatening to the informant. 11. On the other hand, the learned counsel for the respondent has submitted that Section 498(A) (a) of the IPC prescribes that any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman, the framing of charge by the learned Court below under the provision "to cause grave injury or danger to life, limb or health of the woman" will be attracted in the present case and as such it will not be justified to interfere with the charge so framed by the learned trial Court. 12. I have gone through the materials on record and gave due consideration to the submission so made by the parties. 13. So far as the framing of charge is concerned, the Court is required to form an opinion as to whether any prima facie material is there to frame charge, under the law and as has been indicated, there is scope of framing the charge under Section 498(A)(a) of the IPC. 13. So far as the framing of charge is concerned, the Court is required to form an opinion as to whether any prima facie material is there to frame charge, under the law and as has been indicated, there is scope of framing the charge under Section 498(A)(a) of the IPC. Further, in view of the decisions rendered by the Hon'ble Apex Court, as mentioned above, this Court should not seat as an Appellate Court to appreciate the evidence at this stage, as the trial Court is in seisin of the matter and the Court can proceed, on the basis of the statement of the victim herself. 14. Having regard to the materials on record and the discussion made above, this Court is of the opinion that the learned trial Court is still in a position to alter the charge under Section 216 of the CrPC, if so mandates after recording the statement of the victim and to proceed accordingly. 15. The present petition stands disposed of, with a direction to the learned trial Court to take into account of the statement and the victim/informant, about the necessity of alteration of charge, in due course of hearing. 16. With the above observation, the petition stands disposed of.