Gauhati High Court
Zakaria Ahmed vs Afzal Ahmed Choudhury And Anr on 28 November, 2019
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
Page No.# 1/3
GAHC010291652019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 1419/2019
1:ZAKARIA AHMED
S/O MOULANA EMAD UDDIN, R/O VILL-KANAKPUR, P.O. AND P.S.-
NILAMBAZAR, DIST-KARIMGANJ, ASSAM, PRESENT ADD-DISTRICT
GEORGE TOWN, TEXILA AMERICAN UNIVERSITY, GUYANA, SOUTH
AMERICA
VERSUS
1:AFZAL AHMED CHOUDHURY AND ANR.
S/O ASUK AHMED CHOUDHURY, R/O VILL-CHERULBAG, P.O.-
LAKSHMIBAZAR, P.S. AND DIST-KARIMGANJ, ASSAM, PIN-788709
2:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSA
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
Date : 28-11-2019 Mr. R. Ali, learned counsel represents the petitioner. Mr. B.B. Gogoi, leaned Additional Public Prosecutor represents the State respondent No. 2.
This is a petition, made under Section 482 of the Cr.P.C., seeking setting aside and quashing the order, dated 06-03-2018, passed by the learned Additional Chief Judicial Magistrate, Karimganj, in GR Case No. 1633/2016, under Sections 419/468/471/34 of the IPC, read with Page No.# 2/3 Sections 3/4 of the Dowry Prohibition Act, rejecting the prayer for withdrawal of the case as well as the entire proceeding of the case.
I have perused the petition as well as annexures furnished thereto including the impugned order.
I have also heard the learned counsel for parties as indicated above. It appears, on perusal of the petition, that quashment of the proceeding has been sought for in respect of the accused-petitioner, Zakaria Ahmed. But he has not put his signature in the petition. The affidavit attached to the petition was signed by one Jabir Ahmed who claims himself to be the brother of the petitioner and duly authorized by the petitioner to file the instant case.
The fact of the case is that the petitioner married the sister of the informant/respondent No. 1 and, thereafter, subjected her to torture demanding dowry. The further allegation in the FIR is that the petitioner married the sister of the informant/respondent No. 1 by practicing fraud on them, as he stated himself to be a doctor although he was not. Whatever it may be, the charge-sheet in the instant case was filed against several accused persons including the petitioner. The petitioner has been shown as an absconder in the charge-sheet. The learned Court below, by splitting up the case of the petitioner from the other accused persons, tried the case and acquitted the other accused persons vide judgment and order, dated 02-07-2018, in GR Case No. 1633/2016.
The petitioner is said to be staying in South America as of now. The learned counsel for the petitioner has submitted that he is pursuing higher study there. Admittedly and evidently, a petition for withdrawal of the case was filed by the informant before the learned Court below stating that the matter has been settled between the parties, therefore, he wanted to withdraw the case.
The offences for which the charge-sheet has been laid are Sections 419/468/471/34 of the IPC, read with Sections 3/4 of the Dowry Prohibition Act, which are cognizable as well as non- compoundable.
That apart, as reflected in the impugned order, the learned Court below would have considered the plea of the parties at appropriate stage. But they have approached this Court with the instant application.
Section 321 of the Cr.P.C. provides for withdrawal from prosecution. The relevant part of the Page No.# 3/3 provision is reproduced below:
"321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence-
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case hag hot been appointed by the Central Government, he shall not, unless he hag been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution."
In the instant case, there is no whisper that the withdrawal application was filed before the Court below with its consent.
Therefore, there is no wrong committed by the Court below in passing the impugned order as per provisions of Section 321 of the Cr.P.C. Therefore, the order of the learned Court below is not an abuse of the process of the Court and, therefore, no interference is called for in exercise of power under Section 482 of the Cr.P.C. This Court is of the view that interference with the order passed by the learned Court below shall; rather, be an abuse of the process of the Court.
With the above observation and direction this petition stands disposed of.
JUDGE Comparing Assistant