Gauhati High Court
Md. Moimul Islam vs State Of Assam And Anr. on 29 April, 2003
Equivalent citations: (2003)3GLR268
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT Amitava Roy, J.
1. Heard Mr. Hai, learned counsel for the petitioner. None appears for the State, The revision petition is of the year 1995 and,I am not inclined to father adjourn the hearing thereof.
2. The petitioner has assailed the maintainability of the proceeding being C. R. Case No. 417/94 under Section 380 of the IPC pending in the court of Judicial Magistrate, 2nd Class, Morigaon.
3. The factual background relating to the proceeding under challenge may be set out. On 28.3,1994 the present petitioner lodged an FIR before the O/C, Mayong, Morigaon alleging that the opposite party No. 2 with the help of one Mustt. Rahila Khatun and Md Giayasuddin had trespassed into the house and assaulted his wife injuring her severely. On the basis of the FIR, the Police registered Mayong PS Case No. 15/94 under Sections 147/447/326 IPC against the accused being opposite party Nos. 2 and 4 others. It is submitted at the bar that the proceeding relating to the said FIR is still pending for final disposal.
4. As the matter rested at that, the opposite party No. 2 Md. Abdul Kuddus @ Kuddus Ali filed a complaint petition in the court of Magistrate, Morigaon alleging that whiles he and his wife were away from their house to avoid their arrest by the police in connection with Criminal case registered on the basis of the FIR filed by the petitioners the articles mentioned in the complaint petition had been stolen away by the petitioner and his wife.
5. The learned court below after examining the opposite party No. 2/ complainant in support of the statements made in the complaint petition and after recording the evidence of Abul Ali CW-1, and Md Azizul Islam CW-2 on 1.6.1994 and 15.6.1994 respectively took cognizance of the offence and issued process against the petitioner and his wife under Section 380 IPC. It is the maintainability of this proceeding which the petitioner has challenged in the instant Criminal Revision petition.
6. Mr. Hai, learned counsel for the petitioner while supporting the case of the petitioner has argued that the complaint petition is a counter blast to the FIR filed by the petitioner and the same does not disclose any cognizable offence on the face of it and therefore further proceeding will be an abuse of the process of the court. On a combined reading of the evidence of opposite party No. 2/complainant and his witnesses it would appear that the allegation made in the complaint remains unsupported and therefore, it is a fit case where the impugned proceeding should be quashed in exercise of power under Section 482 Cr.PC, he urged.
7. The complaint petition contains specific allegation of theft against the petitioner and his wife. Though complaint petition does not set out the articles allegedly stolen by the petitioner and his wife, the complainant in his statement has specified these, CW-1 and CW-2, Abul Ali and Azizul Islam, have also stated in their evidence that the petitioner and his wife had entered into the compound of the house of opposite party No. 2 and had moved out with the articles referred to by the complainant. They have further stated that when they sought to resist such acts they were threatened by the petitioner and his wife.
8. The law relating to quashing of Criminal proceeding by the High Court in exercise of power under Section 482 Cr.PC is well settled. The High Court while examining the grounds put forward challenging the maintainability of a criminal proceeding under Section 482 Cr.PC is not called upon to shift the evidence on record as would be necessary at the time of trial, if on a reading of the complaint petition, the statement of the complaintant and other witnesses examined" before issuing the process, an offence is made out, even prima facie, the High Court would not axe the proceeding in exercise of its inherent power under Section 482 Cr.PC.
9. From the materials on record indicated hereinabove, I am not in a position to hold that the instant case is one where the materials on record do not per se disclose, the offence alleged in the complaint petition.
10. In these premises, I am of the view that the petitioner has not been able to make out any case, warranting quashing of the impugned Criminal proceeding at this stage. The petition is therefore dismissed. The complaint petition having been filed in the year 1994, an endeavour would be made by the learned trial court to dispose of the case within a period of 6 months from the date of receipt of the records. Office to send down the records immediately.