Gauhati High Court
Page No.# 1/8 vs The State Of Assam And Anr on 7 September, 2022
Page No.# 1/8
GAHC010213422021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./751/2021
SAIFUL ISLAM AND ANR
SON OF MD. ABU BAKKAR SIDDIQUE
R/O VILL- BHANKA BHANGA, MOUZA- TITAPANI, UNDER KALGACHIA
POLICE STATION, IN THE DISTRICT OF BARPETA, ASSAM
2: SRI MANIK KHANDAKAR
S/O MOINUDDIN KHANDAKAR
R/O VILL- BHANKA BHANGA
MOUZA- TITAPANI
UNDER KALGACHIA POLICE STATION
IN THE DISTRICT OF BARPETA
ASSA
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SRI ASHRAFUL ISLAM
S/O LATE KADOM ALI
R/O VILL- BHANKA BHANGA
MOUZA- TITAPANI
UNDER KALGACHIA POLICE STATION
IN THE DISTRICT OF BARPETA
ASSA
Advocate for the Petitioner : MR P KATAKI
Advocate for the Respondent : PP, ASSAM
Page No.# 2/8
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
07.09.2022 Heard Mr P Kataki, learned counsel for the petitioners and also heard Mr D Das, learned Additional Public Prosecutor for the State/respondent No. 1 and Mr N Ahmed learned counsel for the respondent No. 2.
2. By this application under Section 482 CrPC, the petitioner, Md Saiful Islam and Sri Manik Khandakar have put to challenge the legality, propriety and correctness of the impugned Judgment and Order dated 09.09.2021, passed by the learned Additional CJM, Barpeta, in PRC Case No. 585/2021, under Sections 366(A)/34 IPC. It is to be noted here that vide impugned Judgment and Order dated 09.09.2021, the learned Court below has taken cognizance against both the petitioners under Sections 366(A)/34 IPC, arising out of Kolgachia PS Case No. 556/2020.
3. Mr Kataki, learned counsel for the petitioners submits that while taking cognizance against the petitioners vide impugned Order dated 09.09.2021, the learned Court below has failed to apply its mind. According to Mr Kataki, no offence under Section 366(A)/34 IPC is made out against the petitioners, and at best it may be a case under section 365/34 IPC. As such, Mr Kataki has contended to set aside the impugned Order dated 09.09.2021 and to remand the matter to the learned Court below, to consider the matter afresh. Mr. Kataki has also referred one case Maharashtra -vs.- Sharadchandra Vinayak Dongre, reported in 1995 SCC (1) 42,in support of his submission.
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4. On the other hand, Mr D Das, learned Additional Public Prosecutor has opposed the petition and submits that though the offence under Section 366(A) IPC is not made out, yet the offence under Sections 366(A)/511 IPC is made out against both the petitioners and, therefore, Mr. Das has contended to dismiss the petition.
5. After hearing the learned Advocates for both sides I have carefully gone through the petition and also the documents placed on record and the impugned Judgment and Order dated 09.09.2021, passed by the learned Additional CJM, Barpeta, in PRC Case No. 585/2021, corresponding to GR Case No. 4951/2020. I have carefully gone through the scanned copy of the LCR, specifically, the statements of the victim girl recorded under Section 161 Cr.P.C. and Section 164 Cr.P.C. and also the FIR and other witnesses examined by the Investigating Officer.
6. To determine the issue in question, with a greater precision, the impugned order, is quoted hereunder:-
"09.09.2021:- CR is received on transfer for disposal from the learned CJM, Barpeta.
Perused the CR along with the connected documents sent under Section 173 CrPC. After such perusal, this Court is of the considered opinion that there are sufficient grounds to proceed against the accused Saiful Islam, Manik Khandakar, under Sections 366(A)/34 of IPC. Therefore, cognizance of the said offences is taken against the said accused.
Page No.# 4/8 Issue summons against the accused.
Fix:- 30.12.2021 for appearance."
7. In the case of State of Sharadchandra Vinayak Dongre,(supra) Hon'ble Supreme Court has held that:-
"6. Section 173(2) of the Code of Criminal Procedure provides that as soon as investigation is completed, the officer-in- charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating: (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of case; (d) whether any offence appears to have been communicated and, if so, by whom; (e) whether the accused has been arrested; whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170.
7. The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed along with the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1)(b) Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.P.C. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file "supplementary charge-sheet", it could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him along with the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge- sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate."
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8. In the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation: AIR 2015 SC 1923, Hon'ble Supreme Court has observed as under:-
"46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
47. However, the words "sufficient grounds for proceeding"
appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.
48. However, there has to be a proper satisfaction in this behalf which should be duly recorded by the Special Judge on the basis of material on record. No such exercise is done. In this scenario, having regard to the aforesaid aspects coupled with the legal position explained above, it is difficult to sustain the impugned order dated 19.03.2013 in its present form insofar as it relates to implicating the appellants and summoning them as accused persons. The appeals arising out of SLP (Crl.) No. 2961 of 2013 and SLP (Crl.) No. 3161 of 2013 filed by Mr. Sunil Bharti Mittal and Ravi Ruia respectively are, accordingly, allowed and order summoning these appellants is set aside. The appeals arising out of SLP (Crl.) Nos. 3326-3327 of 2013 filed by Telecom Watchdog are dismissed. "
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9. In Birla Corporation Ltd. v. Adventz Investments and Holdings (Criminal Appeal Nos. 875, 877, 876 of 2019 (Arising Out of SLP(Crl) Nos. 9053, 4609, 4608 of 2016) @ D. Nos. 6405, 6122 of 2019), Hon'ble Supreme Court has noted that:-
"26. The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 CrPC or whether the complaint should be dismissed by resorting to Section 203 CrPC on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 CrPC, the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused."
Hence, the Court held:
"33. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to the accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]..."
10. In the case of Harishchandra Prasad Mani and others vs. State of Jharkhand and Another(criminal Appeal No. 124 of 2007, arising out of SLP(Crl.) No. 3934 of 2006, it was held in para 12 that it is well settled by a series of decisions of this Court that cognizance cannot be taken unless there is at least Page No.# 7/8 some material indicating the guilt of the accused, vide R.P. Kapur v. State of Punjab AIR 1960 SC 866: (1960) 3 SCR 388: 1960 Cri LJ 1239, State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426, Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305: 1993 SCC (Cri) 36, Raghubir Saran (Dr.) v. State of Bihar AIR 1964 SC 1:(1964) 2 SCR 336:(1964) 1 CRi LJ 1, State of Karnataka v. M Devendrappa (2002) 3 SCC 89: 2002 SCC (Cri) 539 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122: 2005 SCC (Cri) 283.
11. Here in this case, the learned court below has taken cognizance under section 366(A)/34 IPC against both the petitioners by the impugned order. While the impugned order is examined in the light of material available in the LCR, the same depicts that learned Magistrate does not appear to have applied his judicial mind towards the material collected by the Investigating Officer against the petitioners in this case. The law is well settled that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused. But, the material collected by the I.O., during investigation, appears to be falling far short of to indicate commission of the offence under section 366(A) IPC. At least the statement of the victim recorded under section 161 as well as 164 Cr.P.C. does not indicate the same. Though the learned court below has stated in the order that there are 'sufficient grounds for proceeding', yet the basis of forming such an opinion is not recorded. And it sine que none, as is evident from the case laws discussion made here in above. And this amply suggest that due application of mind has not been made. No reason is given in the impugned order while coming to the conclusion that there is prima facie case against petitioners, though the order need not contain detailed reasons. Therefore, this Court is of the considered opinion that the impugned Order dated 09.09.2021, Page No.# 8/8 does not stand the test of legality, propriety ad correctness and accordingly, the same stands set aside.
12. The matter is remanded to the learned court below to consider the entire materials enclosed with the charge sheet and, thereafter, pass a fresh order of taking cognizance against both the petitioners. The petitioners are directed to appear before the learned Court below, within a period of 10 days from today.
13. In terms of above, this criminal petition under Section 482 CrPC stands disposed of.
JUDGE Comparing Assistant