Gauhati High Court
Page No.# 1/14 vs The State Of Assam And 3 Ors on 27 March, 2025
Page No.# 1/14
GAHC010121582024
2025:GAU-AS:3607
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./700/2024
DILIP KR CHOUDHHURY
S/O SAPINDRA CHOUDHURY,
R/O NAKARI, WARD NO. 2, NORTH LAKHIMPUR TOWN, P.O. NORTH
LAKHIMPUR, IN THE DISTRICT OF LAKHIMPUR, ASSAM-787001
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE PP, ASSAM
2:SAGAR CHOUDHURY
S/O SRI DILIP KR. CHOUDHURY
PERMANENT RESIDENT OF NAKARI
WARD NO. 2
NORTH LAKHIMPUR TOWN
P.O. NORTH LAKHIMPUR
IN THE DISTRICT OF LAKHIMPUR
ASSAM AND PRESENT RESIDENT OF FLAT NO. B2
GREENPARK
RESIDENCY
MANIKANCHAN PATH
BELTOLA
IN THE DISTRICT OF KAMRUP (M)
GUWAHATI-781028
ASSAM
3:BHARAT CHANDRA NARAH
MLA
NOWBOICHA
Page No.# 2/14
S/O TILESWAR NARAH
R/O HOUSE NO. 13A
BASISTHAPUR
BYE LANE NO. 3
HOUSING SURVEY HATIGAON
GUWAHATI-781028
IN THE DISTRICT OF KAMRUP (M)
ASSAM
INDIA.
4:TRIDIP KUMAR BHATTACHARYYA
M.A.
LLB
AJS
FORMER JUDICIAL MAGISTRATE FIRST CLASS CUM MUNSIFF NO. 3
KAMRUP (M)
GUWAHATI
SON OF OF UNKNOWN
O/O SUB DIVISIONAL JUDICIAL MAGISTRATE
OFFICE OF THE CHIEF JUDICIAL MAGISTRATE
GARMUR SATRA
MAJULI
ASSA
Advocate for the Petitioner : MR. J I BORBHUIYA, MR G G GOGOI,A TALUKDAR
Advocate for the Respondent : PP, ASSAM, MR. A K HANNAN (R-3),MR. M J QUADIR (R-
3),MR. S J SARMAH (R-2),MRS. B TALUKDAR (R-2),MR. P BOIRAGI (R-2) Page No.# 3/14 :::BEFORE:::
HON'BLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 18.12.2024 Date of Judgment & Order : 27.03.2025 JUDGMENT & ORDER (CAV) Heard Mr. J. I Borbhuiya, learned counsel for the petitioner. Also heard Ms. S. H. Bora, learned Additional Public Prosecutor for the State of Assam; Mr. P. Boiragi, learned counsel representing the respondent No. 2; and Mr. A. K. Hannan, learned counsel representing the respondent No. 3.
2. This is an application under Section 482 of Cr.P.C read with Section 397/401 of CPC for setting aside and quashing of the impugned proceeding Complaint Case No. 4799/2019 under Section 193 IPC originated from the Complaint Case No. 2014/2016 and the Petition Case No. 4402/2017 in Complaint Case No. 2014/2016 and also praying for setting aside the impugned judgment and order dated 30.11.2019 and other subsequential order.
3. In brief the case of the petitioner is that, the respondent No. 2 had initiated a complaint case before the learned Chief Judicial Magistrate, Kamrup (M) Guwahati under Section 138 of the N.I Act against the respondent No. 3. Accordingly, the learned Chief Judicial Magistrate registered the complaint as Complaint Case No. 2014/2016 and transferred the same for disposal before the learned Judicial Magistrate First Class-cum-Munsiff No. 3, Kamrup (M) at Page No.# 4/14 Guwahati.
4. During the trial, the accused/petitioner deposed as PW-2. After his cross- examination, respondent No. 3 filed a petition before the learned Judicial Magistrate First Class-cum-Munsiff No. 3, alleging, inter alia, that PW-2 (the accused/petitioner) gave false evidence during cross-examination. After hearing both parties, the learned Judicial Magistrate First Class-cum-Munsiff No. 3 deferred the order and subsequently passed a judgment and order dated 30.11.2019 in C.R. Case No. 2014/2016. Accordingly, the judgment copy was forwarded to the learned Chief Judicial Magistrate, Kamrup (M) for necessary action, with a note that the judgment copy may be treated as a complaint.
5. Upon receipt of the copy of the said judgment and order dated 30.11.2019, the learned Chief Judicial Magistrate registered a case vide C.R. Case No. 4799/2019 under Section 193 of the IPC. The learned Chief Judicial Magistrate also took cognizance against the present petitioner and issued a summons to him for appearance on 19.12.2019.
6. It is further stated that during the cross-examination in Complaint/NI Case No. 2014/2016, the respondent No. 3 asked certain questions to the present accused/petitioner, to which he responded. The questionary are as follows:
a. Que: - "whether the accused petitioner had related to any political party or not"
Ans: - I was a worker of AGP party.
Page No.# 5/14 b. Que: - "whether the accused petitioner had submitted any nomination from the party in Legislative Assembly Election 2016 or not"
Ans: - The accused petitioner had submitted nomination in Legislative Assembly Election 2016.
c. Que: - "whether the accused petitioner had contested from the party in Legislative Assembly Election, 2016 or not"
Ans: - But the accused petitioner had not contested due to cancellation of the party ticket.
7. It is further submitted by the learned counsel for the petitioner that during the cross-examination by the counsel for respondent No. 3, no questions were asked regarding the petitioner's independent candidature in the 2016 Legislative Assembly Election. It is pertinent to mentioned that the petitioner was initially selected by Asom Gana Parishad as a candidate for Dhakuakhana Constituency in the 2016 election, but without informing the petitioner it was cancelled. Consequently, the petitioner filed a defamation case, which is registered as Title Suit Case No. 369/2016, against the said political party Asom Gana Parishad and others, which remains pending before the learned Civil Judge No. 1, Kamrup (M), Guwahati.
8. The respondent No. 3 also filed a criminal appeal before the learned District & Sessions Judge Kamrup (M) against the order passed by the learned Judicial Magistrate First Class, which is registered as Criminal Appeal No. Page No.# 6/14 225/2019. But thereafter, both the respondent No. 3 and the respondent No. 2 had entered into a Memorandum of Understanding on 05.02.2021 and paid the amount of Rs. 25,00,000/- (Rupees Twenty-Five Lakhs) only for compromising the N.I Case and in which, the appeal was disposed of on compromised.
9. Thereafter, the accused/petitioner submitted an application before the learned Chief Judicial Magistrate on 06.04.2023, praying for his discharge under Section 239 of the Cr.P.C. The petition was accordingly heard on 25.04.2024; however, the learned Chief Judicial Magistrate, Kamrup (M), declined to pass an order on the petition filed by the present accused/petitioner. Accordingly, the order stated that the same prayer would be considered after taking evidence of prosecution witnesses (PWs) in connection with Petition Case No. 4402/2017.
10. He further submitted that during the cross-examination of PW-2, it was clearly stated that the petitioner was a member of Asom Gana Parishad (AGP) and had submitted his nomination for the 2016 election. However, he was unable to contest the election as his candidature was cancelled by the party concerned. The learned trial Court thus, without providing any reasonable opportunities to the present petitioner had passed the order and the defence i.e., the complaint did not lead any evidence to substantiate the plea. Except the Petition No. 4402/2017 and there is nothing in the case record. The respondent No. 3 was not put any question during cross of PW-2 regarding independent candidature in the Legislative Assembly Election 2016. The petitioner was asked to specifically reply and without any explanation he just replied to the question as yes or no.
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11. Being aggrieved and dissatisfied with the order passed by the learned Judicial Magistrate First Class in NI Case No. 2014/2016, as well as the impugned judgment and order dated 30.11.2019 passed in Complaint Case No. 2014/2016, which was forwarded to the learned Chief Judicial Magistrate, and order of issuance of notice against the present petitioner, the present petitioner has preferred the criminal petition for setting aside and quashing of the order passed by the learned Chief Judicial Magistrate vis-à-vis the order passed by the learned Chief Judicial Magistrate by taking cognizance.
12. Mr. Borbhuiya, learned counsel for the petitioner further submitted that the learned Judicial Magistrate First Class could not scrutinize the evidence of the petitioner that he never made any false statement during his cross- examination. As nomination of the political party was cancelled and he did not contest the election for the political party, AGP. But the petitioner has become the victim of the case in the name of enquiry of the case despite, no offence committed by the petitioner and the learned Judicial Magistrate First Class forwarded the copy of the judgment and order to the learned Chief Judicial Magistrate for necessary action alleging that the present petitioner adduced false evidence during his cross-examination which is illegal, arbitrary and hence, the same is liable to be set aside and quashed.
13. He further submitted that learned trial Court did not examined the authenticity of the cross-examination in violation of the provision laid down in law and proceeded with the case only on the complaint that too without supplying affidavit and thus, the case for the offence under Section 193 is bad in law and liable to be set aside and quashed.
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14. It is further submitted that the petitioner was a member of AGP and had submitted his nomination in the Legislative Assembly Election of 2016. However, his candidature was cancelled by the party, and he did not contest the election from AGP but, instead he contested as an independent candidate. During cross- examination, the petitioner was not asked whether he contested the election for another or independent party. He provided only directed answer and, without being asked for further explanation, did not have the opportunity to clarify before the Court that he contested the election as an independent candidate.
15. The judgment and order dated 30.11.2019, passed by the learned Judicial Magistrate First Class in connection with Complaint Case No. 2014/2016, is erroneous and bad in law as no proper enquiry was made by the learned trial Court while passing the judgment as well as when registering the case against the present petitioner.
16. He further submitted that the learned Chief Judicial Magistrate, while taking cognizance of this case against the petitioner vide order dated 19.12.2019 in connection with the order/judgment dated 30.11.2019, failed to consider the entire cross-examination of PW-2, particularly page-16 of paragraph-48. The learned Chief Judicial Magistrate-cum-Munsiff took cognizance in an arbitrary manner, which is liable to be set aside and quashed.
17. Further, he submitted that the allegation made in petition No. 4402/2017 in connection with Complaint Case (NI) No. 2014/2016, are entirely baseless and misleading. However, the learned trial Court, without going through the Page No.# 9/14 contents of the cross-examination had erroneously passed the judgment and order, which is liable to be set aside and quashed. The impugned proceedings initiated against the present petitioner has suffered from gross irregularity and illegality and allowing these proceedings to continue against the present accused/petitioner would result in a grave miscarriage of justice, causing unnecessarily harassment to the accused/petitioner for no offence committed by the petitioner.
18. Accordingly, it is submitted by the learned counsel for the petitioner that the allegation made against the present petitioner in the judgment and order dated 30.11.2019 passed in Complaint Case No. 4799/2019 which is originated from the impugned petition No. 4402/2017 in connection with the Complaint Case No. 2014/2016 is liable to be set aside and quashed and the proceeding initiated against the present petitioner in connection with Complaint Case No. 4799/2019 is also liable to be set aside and quashed.
19. Mr. Borbhuiya, learned counsel submitted that the petitioner never deposed any false evidence before the Court while adducing his evidence as PW-2. He simply made the statement that he did not contest the case because the AGP party did not give him ticket. However, as there was no scope for explanation, he could not explain the fact that he contested the election of Legislative Assembly Election of 2016 as an independent candidate. Further, the statement he made in his cross-examination is not relevant to the case, wherein, he adduced his evidence and it is also seen that the respondent No. 3 was accordingly convicted in the said case by the learned trial Court. He further submitted that after cancellation of his ticket from AGP party, he also instituted Page No.# 10/14 a Title Suit being TS. No. 369/2016, which is pending before the learned Civil Judge No. 1, Kamrup (M), wherein, a decree for declaration was sought for with his cancellation of his ticket by the party which is illegal, along with other reliefs. He further submitted that prayer for discharge was made before the learned Chief Judicial Magistrate in C.R Case No. 4799/2019, but no order was passed for the petitioner by the learned trial Court and the petition for discharge remains pending before the learned trial Court.
20. Accordingly, the learned counsel for the petitioner submits that this is not a fit case, wherein, the order of taking cognizance passed by the learned Chief Judicial Magistrate in C.R Case No. 4799/2019, along with entire proceeding can be set aside and quashed and the judgment passed by the learned Judicial Magistrate First Class in C.R. Case No. 2014/2016 is also liable to be set aside and quashed in respect of the observation made against the present petitioner.
21. Mr. Borbhuiya, learned counsel further relied on the decision of the Hon'ble Supreme Court passed in criminal appeal arising out of SLP (Crl.) No. 9783/2023 (James Kunjwal vs. State of Uttarakhand & Anr.,) and emphasized on paragraph 16 of the judgment, wherein, it has been held that before initiation of any proceedings, there has to be prima facie opinion of Court that there exists reasonable and sufficient ground in regards to false statement made by the petitioner. Paragraph 16 of the said judgment read as under:
" ...16. What we may conclude from a perusal of the above-noticed judicial pronouncement is that: -
(i) The Court should be of the prima facie opinion that there exists sufficient and reasonable ground to initiate proceedings against the person who has Page No.# 11/14 allegedly made a false statement(s);
(ii) Such proceedings should be initiated when doing the same is "expedient in the interests of justice to punish the delinquent" and not merely because of inaccuracy in statements that may be innocent/immaterial;
(iii) There should be "deliberate falsehood on a matter of substance;
(iv) The Court should be satisfied that there is a reasonable foundation for the charge, with distinct evidence and not mere suspicion;
(v) Proceedings should be initiated in exceptional circumstances, for instance, when a party has perjured themselves to beneficial orders from the Court."
22. Ms. S. H. Bora, learned Additional Public Prosecutor submitted in this regard that no irregularity or illegality committed by the learned trial Court in sending the copy of the judgment and order or in taking cognizance on the basis of the judgment and the statement made by the present accused/ petitioner that he made false statement/evidence before the Court while at the time of his cross-examination. She further submitted that the case is still at the stage of consideration of charge and the petition for discharge filed by the present petitioner is still pending before the learned trial Court for disposal. Accordingly, she submitted that the present petition is liable to be dismissed and no order of quashing can be passed at this stage.
23. She further submitted that vide judgment and order passed by the learned trial Court in C.R. Case No. 2014/2016 has already rendered infructuous, as the matter was compromised at the appellate stage and the money is accordingly returned to the present petitioner. Further, the case which was registered on the basis of the judgment and order passed by the learned trial Court, wherein, it was observed that PW-2 made some false evidence during the cross- examination, is pending before the learned Chief Judicial Magistrate and the prayer for discharge is still pending and hence, the present petition is also pre-
Page No.# 12/14 mature at this stage for passing any order of quashing.
24. The learned counsels appearing for the respondent No. 2 and No. 3 also submitted that no irregularity and illegality has been committed by the learned Chief Judicial Magistrate while taking cognizance and it is very much evident that the petitioner as PW-2 had suppressed the fact that he contested the election.
25. Hearing the submission made by the learned counsels for both sides, it is seen that the learned trial Court, while passing the judgment and order made an observation that false evidence was adduced by the present petitioner while he was cross-examined as PW-2. It is also seen that after cross-examination of PW-2, a petition which is numbered as Petition Case No. 4402/2017, was filed before the learned trial Court, alleging that PW-2 adduced false evidence regarding his candidature for election. Although, no separate order was passed on the said petition and there was a reflection in the judgment and order passed by the learned trial Court particularly in paragraph 48 of the judgement, which was accordingly forwarded to the learned Chief Judicial Magistrate and on the basis of which, the cognizance was taken against the present petitioner. It is a fact that there was no question put to the present petitioner regarding his candidature for his election, but without giving any explanation he simply gave the reply that he did not contest the election as his ticket was cancelled by AGP party. Furthermore, it is also seen from the record that, the present petitioner also filed the petition which is numbered as Petition Case No. 74/2023 under Section 239 of Cr.P.C, praying for his discharge before the learned Chief Judicial Magistrate in C.R. Case No. 4799/2019 which was registered against the present Page No.# 13/14 petitioner and cognizance was also taken against him. But from the order dated 25.04.2024, the judgment which is annexed along with petition as annexure 'K', it is seen that the petition for discharge is still pending before the learned trial Court, as it was observed that the petition may be considered after recording the evidence of PWs before consideration of charge. So, it is the observation of the Court that the recording of the evidence of the PWs before charge will help in passing order on the petition filed by the petitioner praying for his discharge but before passing any order in the said petition, the present petitioner has failed the instant petition praying for quashing of the entire criminal proceeding including the judgment and order passed by the learned trial Court.
26. But considering the entire circumstances of this case, it is seen that the petitioner will get every opportunity to raise these issues before the learned Chief Judicial Magistrate at the time of hearing of his petition filed under Section 239 of Cr.P.C for his discharge and hence, I find that the present petition for quashing is pre-matured one wherein, no charge has been framed against the present petitioner for want of evidence from PWs before framing any charge against the present petitioner. With that observation also, the learned Chief Judicial Magistrate kept the petition in abeyance without passing any order for discharge.
27. Thus, it is seen that the present petition for quashing is at pre-mature stage as the prayer for discharge is still pending before the learned Chief Judicial Magistrate. Accordingly, I do not find it appropriate to pass an order of quashing by invoking the power under Section 482 of Cr.P.C at this stage and the petitioner is hereby directed to proceed with the hearing on Petition No. Page No.# 14/14 74/2023 filed under Section 239 of Cr.P.C which is still pending before the learned Chief Judicial Magistrate, Kamrup (M) Guwahati.
28. With the above observation, the present criminal petition stands dismissed and disposed of.
JUDGE Comparing Assistant