Gauhati High Court
Md. Faruk Sarkar vs The State Of Assam on 14 July, 2017
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Crl. Pet. No. 598 of 2013
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
14.07.2017
Heard Mr. Tanmay Jyoti Mahanta, learned senior counsel assisted by Ms.
Panchali Bhattacharya, learned counsel for the petitioner. Also heard Mr.
Bhaskar Jyoti Dutta, learned Additional Public Prosecutor appearing for the
State, the sole Respondent.
2. The petitioners herein are charge-sheeted accused persons in Sessions
Case No. 56 of 2010 arising out of Gauripur Police Station Case No. 314 of 2008
and they are aggrieved by the order dated 23.05.2011 passed by learned
Sessions Judge, Dhubri against them who are charge-sheeted accused in
Sessions Case No.56 of 2010 arising out of Gauripur P.S. Case No.314 of 2008.
In the same case, their son Md. Rahi Masum Raja has also been charge
sheeted. Police after investigating the matter vide No. 24/2009 dated
31.03.2009 in said Gauripur P.S. Case No. 314/2008 initially submitted the
charge-sheet against the present petitioners and their said son Md. Rahi
Masoom Reza for the offences under Sections 498A/306 IPC due to the death of
Mrs. Mahsina Rahman, daughter-in-law of the petitioners and wife of their son
Md. Rahi Masoom Reza, the other accused of the case.
3. The learned Assistant Sessions Judge, Dhubri on 10.02.2011 during the
trial of said Sessions Case No. 56/2010 observed that the Hon'ble Supreme
Court in the said case directed to add Section 302 IPC in addition to Section
498-A/306 IPC and accordingly, forwarded the said matter to the Court of
learned Sessions Judge, Dhubri for necessary orders and the learned Sessions
Judge, Dhubri after perusal of the records, hearing the parties and considering
the matter, by order dated 23.05.2011 passed in said Sessions Case No.
56/2010 framed charges under Section 498-A/304-B/302/34 IPC against all the
accused persons of the said Sessions Case including the present petitioners,
Crl. Ptn. No. 598 of 2013 Page 4 of 4
which were read over and explained to them, to which the accused persons
pleaded not guilty and claimed to be tried.
5. The petitioners being aggrieved with the order dated 23.05.2011 of
learned Sessions Judge, Dhubri with regard to inclusion of Section 302 IPC in
the said Sessions Case No. 56/2010 have preferred this Criminal Petition.
6. It is seen that before issuance of the impugned order dated 23.05.2011,
the learned Sessions Judge, Dhubri heard the parties including the present
petitioners. The learned Sessions Judge, Dhubri from the perusal of the post-
mortem report of the deceased observed that the said victim sustained a liner
bruise of about 1 cm of length over her left eye brow with slight swelling and
bluish discolouration of the left upper eye lid; a bruise of size about 2 cm x 2
cm in the left lower jaw, just lateral to the chin about 2 cm above the ligature
mark; PM lividity present in patches in the back of abdomen and chest, neck
extending into the part of face and forehead and the hanging to be ante-
mortem in nature. Considering all these, the learned Sessions Judge, Dhubri
added Section 302/34 IPC in the said Sessions Case No.56/2010.
7. It is seen from the record of the case that the other accused of the case,
namely, Md. Rahi Masoom Reza, son of the petitioners approached this Court in
Criminal Revision Petition No. 346 of 2011 against the same order dated
23.05.2011, impugned in this petition, passed by learned Sessions Judge,
Dhubri in Sessions Case No. 56/2010 as well as the order dated 10.03.2011
passed by the learned Assistant Sessions Judge, Dhubri in the said Session Case
with regard to adding of Section 302 IPC in the said Sessions Case. Another
Bench of this Court by its order dated 10.04.2013 passed in said Criminal
Revision Petition No. 346 of 2011 (Rahi Masoom Reza -Vs- State of Assam)
observed that -
"In my opinion, irrespective of the decision of the Apex Court, the
contention of the learned counsel for the petitioner is too hyper technical in
nature. As long as there are materials on record to justify the framing of the
charges under section 498-A/304-B and to add the section 302 IPC,
Crl. Ptn. No. 598 of 2013 Page 4 of 4
irrespective of the observation made by the learned Assistant Sessions
Judge, the learned Sessions Judge is at liberty to independently frame the
charge against the petitioner under section 302 IPC in addition to sections
498-A/304-B IPC read with section 34 IPC.
The learned counsel for the private respondent has taken me to the
FIR as well as the charge sheet submitted by the Police and submits that the
facts and circumstances of the case available on record warrant the addition
of the charge under section 302 IPC against the petitioner in addition to
section 498-A/304-B and as such there is no improper exercise of jurisdiction
of the learned Trial Court in passing the impugned order.
............................................
............................................
............................................
The facts stated by the learned Sessions Judge in the paragraphs extracted above are not disputed by the learned counsel for the petitioner. Considering the injuries sustained by the deceased as reproduced by the learned Sessions Judge from the post mortem report, I am of the considered view that the learned Sessions Judge has correctly exercised his jurisdiction in adding the section 302 IPC to section 498(A)/304-B read with section 34 IPC while framing charge against the petitioner. In this view of the matter, there is absolutely no reason to interfere with both the impugned orders.
For what has been stated in the foregoing, this criminal revision, which is totally devoid of merits, is dismissed."
8. The Court by the said order dated 10.04.2013 after considering the impugned order dated 23.05.2011 in the said Sessions Case No.56/2010 came to a finding that the learned Sessions Judge has correctly exercised his jurisdiction in adding the Section 302 IPC to Section 498-A/304-B read with Section 34 IPC while framing charge against the said petitioner and that there is absolutely no reason to interfere with both the orders dated 23.05.2011 passed by learned Sessions Judge, Dhubri as well as the order dated 10.02.2011 passed by learned Assistant Sessions Judge, Dhubri in said Sessions Case No. 56 of 2010.
Crl. Ptn. No. 598 of 2013 Page 4 of 49. This Court is also of the similar view that the learned Sessions Judge have rightly added Section 302 IPC in the said Sessions Case No. 56/2010 arising out of Gauripur P.S. Case No. 314/2008 against the accused persons of the case including the present petitioners, as there are sufficient materials for said Section 302 IPC in the case, as has been rightly found by the learned Sessions Judge, Dhubri from the post-mortem report of the deceased victim.
10. Considering the above, the Court is of the view that this is not a fit case to exercise its discretion under Section 482 Cr.P.C. to interfere with order dated 23.05.2011 passed in Sessions Case No. 56 of 2010 by the learned Sessions Judge, Dhubri and, accordingly, this Criminal Petition being devoid of merit stands dismissed.
11. The interim order passed earlier on 26.09.2013 stands vacated.
12. Registry shall return the LCR along with a copy of this order to the Court of learned Sessions Judge, Dhubri forthwith.
JUDGE ISINGH Crl. Ptn. No. 598 of 2013 Page 4 of 4