Gauhati High Court
Toshi Kaba And Anr vs The State Of Assam And Anr on 4 April, 2019
Equivalent citations: AIRONLINE 2019 GAU 184, (2019) 6 GLR (NOC) 14
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/5
GAHC010025412016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 731/2016
1:TOSHI KABA and ANR
S/O BENGDANG WATI R/O CHUNGTIA,
P.S. MOKOKCHUNG
DIST. MOKOKCHUNG, NAGALAND.
2: PROBIN DIBRAGADE
S/O THARLONON DIBRAGADE
R/O PHAIDING
P.S. MAHUR DIST. DIMA HASA
VERSUS
1:THE STATE OF ASSAM AND ANR
2:SRI ARUP SHARMA
S/O LT. SARAT SHARMA SAUJIGAON
P.S. MARIANI DIST. JORHAT
ASSAM
PIN - 785634
Advocate for the petitioners: Mr. S. Borthakur.
Advocate for the State respondent: Mr. B.J. Dutta, Addl. P.P., Assam.
BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN Date of hearing and judgment: 04.04.2019.
Page No.# 2/5 JUDGEMENT AND ORDER By filing this petition under Section 482 of the CrPC, the petitioners have sought for quashing for the FIR pertaining to Morioni P.S. Case No.43/2016, registered u/s.143/448/387/506 IPC, read with Section 25(1)(a) of the Arms Act and also the charge sheet pertaining to the said case.
2. Heard Mr. S. Borthakur, learned counsel appearing for and on behalf of the petitioners as well as Mr. B.J. Dutta, learned Addl. P.P., Assam for the State respondent.
3. It is the case of the petitioners namely Toshi Kaba and Probin Dibragade that they are serving in the Indian Army and posted with No.1 Field Intelligence Detachment & Surveillance Unit in 99 APO at the time of alleged occurrence. However now the petitioner No.1 is a Major in the Indian Army, posted in Madhya Pradesh whereas the petitioner No.2 is a Haveldar, posted in Nagaland.
4. An FIR was filed on 09.03.2016 by one Arup Sarma, Secretary of the Sauji Gaon VDP under Morioni P.S., alleging that on that day at about 11:30 A.M., a group of Naga people came to his house by one Bolero vehicle bearing No.NL 07C-2097, a Maruti WagonR bearing No.AS 23B-1773 and one LML vespa scooter bearing No.AS 03-6501 and they revealed that they have come from Nagaland and purchased the agricultural land and the hill situated in front of his house for Rs.40 lacs and threatened the people that nobody should cultivate the said land. As and when the informant and other people of the locality came out, then those Naga people by showing pistols in their hands, said that do not cultivate the land or otherwise they have to give money to them for such cultivation. They also threatened to burn down the house of the villagers for non-compliance of their command. However the local people snatched away two pistols from them and informed the police and in turn the police apprehended those persons along with the pistols.
5. On the basis of the FIR, the Morioni P.S. Case No.43/2016, was registered u/s.143/448/387/506 IPC, read with Section 25(1)(a) of the Arms Act and on completion of the investigation, the police submitted charge sheet against seven accused persons including the present Page No.# 3/5 two petitioners, under the said sections of law.
6. Both the accused persons made their entry before the learned trial Court and thereafter come up with the present petition for quashing of the entire proceeding including the FIR and the charge sheet on the ground that they are army personnel having relevant documents and movement order for carrying such arms and ammunitions with them, vide Annexure-8. One of the petitioner Toshi Kaba has also contended that they have duly purchased the land from the Village Council on 15.05.2015, vide Annexure-2 and as such they simply wanted to verify the land which is situated nearby the place of occurrence. Accordingly it has been contended that registration of the FIR and filing of the charge sheet under Section 25(1)(a) of the Arms Act is bad in law, while they have valid documents for such possession of arms and ammunitions and have valid land documents in their favour. The whole incident is in the nature of Civil dispute and no criminality can be attributed to the present petitioners, even for claiming their land, as they have sale deed in their favour. Apart from that, the identity cards of both the present petitioners have also been annexed vide Annexure-1 series. Accordingly, challenging the filing of such FIR and submission of charge sheet, the present petition is filed for quashing of the entire criminal proceeding.
7. The learned counsel for the petitioners has also led the Court through the documents annexed in support of their case and has submitted that the petitioner can no way be impleaded with the offence under Section 25(1)(a) of the Arms Act, because by virtue of their official occupation, they have such arms and ammunitions which reflected from the movement order itself. On the other hand, it has also been contended that there is no question of extortion in view of the accusation in the FIR, as the petitioners never demanded money on threat. Referring to the bail order of the Court, at the time of releasing the accused persons on bail, it has been contended that the learned Sessions Judge has already took note of the fact that the present petitioners are the members of Indian Army holding their arms in discharge of their duties. Thus it contends that from both these aspects, the offences u/s.387 IPC and u/s. 25(1)(a) of the Arms Act is not attracted. Similarly it has also been contended Page No.# 4/5 that mere claim over a plot of land which they have purchased can only be termed as a civil dispute and not as a criminal one.
8. I have also heard the learned counsel for the State respondent Mr. B.J. Dutta who has submitted that in view of the accusition itself in the FIR, the criminal liability of the petitioners has been reflected and no any proper sale deed can be shown by the petitioners to substantiate that they are the legal owners of the aforesaid land. That apart, the FIR itself reflects about the threat meted by the petitioners by showing arms and ammunitions to the informant and other local people and accordingly there can be no substance that there can be no criminal liability against the present accused/petitioners, as has been contended.
9. Due consideration has been given to the submission so made. I have also gone through the documents annexed and also the scanned copy of the case diary, as called for and received from the learned Court below.
10. It is to be noted that all the witnesses examined by the I.O. has stated the same aspect that the accused persons by showing their pistols, threatened the witnesses not to cultivate in the land they have purchased or to leave the land otherwise their houses will be burnt down.
11. From the entire materials on the case diary, it reflects that a prima facie case is made out against the present petitioners to suggest the criminal liability. So far as the document that have been annexed in the record, regarding movement order and the sale deed etc., is not found in the case diary, whereas the accused persons were in a position to produce the same before the I.O., after their release on bail. The I.O. has also seized the arms from the accused persons and the same was also sent for Forensic Science Laboratory for examination and the report has also been obtained.
12. As regards the submission that the present two accused persons are not liable to rope in with the offences u/s.387 IPC and u/s. 25(1)(a) of the Arms Act, the same can be appreciated by the learned trial Court at the time of framing of charge, the offence being a warrant procedure case, as Page No.# 5/5 due opportunity will be provided to the accused petitioners at the time of framing the charges, to submit their say.
13. Taking note of all above, this Court is of opinion that it is not a fit case to invoke the inherent power of the High Court u/s.482 of the CrPC, there being prima facie allegation against the accused petitioners.
14. Accordingly the present petition stands disposed of with a direction to the present petitioners to face the trial and to place their submission before the learned Court below at the time of framing charge along with relevant documents and the learned trial Court will consider the submission for and on behalf of the accused petitioners and will consider framing of charge in accordance with law.
15. As the matter was pending before this Court since 2016 and there was an interim order of stay as regards the present petitioners, the learned trial Court will allow the petitioners to remain on previous bail on their appearance.
16. With the observation, the petition stands disposed of.
17. Interim order, passed earlier stands vacated.
JUDGE Comparing Assistant