Gauhati High Court
Sri Sarbananda Sonowal vs Central Bureau Of Investigation And Anr on 26 June, 2012
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:
MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
Criminal Petition No. 18 of 2010
Sri Sarbananda Sonowal
S/o Late Jibeswar Sonowal
Resident of Village Molok Gaon,
Panitola, P.S. Chabua,
District Dibrugarh, Assam.
.................. Petitioner
-Versus-
1. Central Bureau of Investigation.
2. Adseshwar Konwar, the then
Inspector of police, Ugarli Police
Station under Dibrugarh Police
Staton.
............... Respondents.
Criminal Petition No. 22 of 2010 Sri Dibyahash Goswami, Son of Late Nabahash Goswami, Resident of J.P. Nagar, Dibrugarh-3 under Dibrugarh Police Station in the district Of Dibrugarh, Assam.
.................. Petitioner
-Versus-
Crl. Petn. No. 18 & 22/10 Page 1 of 1Central Bureau of Investigation.
(C.B.I.).
............... Respondent.
Advocates for the petitioners : Mr. AK Bhattacharyya, Sr. Advocate.
Mr. BM Choudhury, Mr. BK Mahajan.
Advocates for the respondents : Mr. BC Das, Sr. Advocate Mr. DN Bhattacharyya Mr.AC Buragohain, SC, CBI.
PRESENT
HON'BLE MR. JUSTICE B D AGARWAL
Date of hearing : 8.5.2012.
Date of Judgment : 26.6. 2012
JUDGEMENT AND ORDER ( CAV)
The deceased Saurav Bora was a young student leader and a social activist as well. He was killed by unknown assailants in the campus of Dibrugarh University in the evening hours on 27.5.1986. On the basis of oral information a fellow student Barbaruah Police Out Post recorded GD Entry No.427. Thereafter a regular case under Section 302 of the Indian Penal Code was registered at Dibrugarh Police Station. Within a few days, the case was handed over to the Assam CID. Finally, CBI was entrusted with the investigation on 21.3.1998. After investigation, CBI submitted Final Report Crl. Petn. No. 18 & 22/10 Page 2 of 2 on 26.6.1990 in the court of learned Special Judicial Magistrate Assam, Guwahati. However, the learned Magistrate did not accept the closure report filed under Section 173 of the Criminal Procedure Code ( for short 'Cr.P.C.') and instead took cognizance of the report against seven accused persons vide order dated 28.11.2006. Since the offences were exclusively triable by the court of Session, the case was committed to the court of learned Sessions Judge, which was again transferred to the court of learned Addl. Sessions Judge, Dibrugarh. The said court finally framed charges under section 302 and 120(B) of the Indian Penal Code vide impugned order dated 21.12.2009 against five accused persons namely, Sri Sarbananda Sonowal, Sri Dibya Hash Goswami, Sri Kusheswar Saikia, Sri Ramesh Dutta and Sri Mridul Dutta. In addition to that, charge under Section 506 of the Indian Penal Code was also framed against the accused Sri Ramesh Dutta and Sri Mridul Dutta. The other accused were discharged.
2. Being aggrieved with the framing of charges under Section 302 and 120(B) two, out of five accused persons, have approached this court by way of filing these criminal petitions under Sections 482 and 397 Cr.P.C.
3. The accused Sarbananda Sonowal was the President of All Assam Student Union (AASU) at the relevant time. The other petitioner Sri Dibya Hash Goswami was the Registrar of the University.
Crl. Petn. No. 18 & 22/10 Page 3 of 34. As noted earlier, the offence of murder was committed by unknown assailants. Hence, the case is based on circumstantial evidence.
5. The accused Sarbananda Sonowal was represented by Sri BK Mahajan, learned counsel, whereas, the accused Dibya Hash Goswami was represented by Sri AK Bhattacharyya, learned Sr. counsel. The criminal petitions were objected by the mother of the victim, represented by Sri BC Das, learned Sr. counsel. The CBI was represented by its Standing Counsel Sri AC Buragohain. Heard oral arguments of the respective counsels, who also read over the statements of witnesses, recorded by the Investigating Officer extensively.
6. Representing the petitioner Sarbananda Sonowal, learned counsel submitted that his case is at par with the discharged accused Sri Biren Baruah. The learned counsel also submitted that in view of the agitation of the students and disciplinary action taken against few of the students by the University, the petitioner Sri Sarbananda Sonowal was only advising the students to suspend their agitation and with this limited role of the petitioner in the entire incident he cannot be roped in hatching the conspiracy or committing murder of the deceased. The learned counsel also submitted that expulsion of the students was challenged before the High Court and after stay order from the High Court, the situation had calmed down in the month of January itself and as such this petitioner had no role in the murder of Saurav Bora. According to the learned counsel, other allegations are hearsay and based on surmises and conjectures.
Crl. Petn. No. 18 & 22/10 Page 4 of 47. Referring to various decisions from the Hon'ble Supreme Court, Mr. Mahajan, learned counsel for the petitioner submitted that though a "grave suspicion" may justify the court to proceed against an accused a general suspicion on the basis of hearsay evidence cannot justify framing of criminal charges. The learned counsel also contended that there should be strong evidence that there was meeting of minds to hatch a conspiracy before framing charges under Section 120(B) of the Indian Penal Code.
8. In tandem with the aforesaid submissions, Mr. Bhattacharyya, learned Sr. counsel for the petitioner Sri Dibya Hash Goswami also assailed the criminal proceeding contending that the charges have been framed on the basis of hearsay statements and conjectures and surmises drawn by the witnesses and not on the basis of any legal evidence. Referring to the judgments of the Hon'ble Supreme Court rendered in the case of Union of India -Vs- Prafulla Kr.Samal; reported in (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affairs, W.B. -Vs- Anil Kumar Bhunja; reported in (1979) 4 SCC 274, the learned counsel submitted that before asking an accused to face a criminal trial it is the duty of the court to evaluate the materials and documents on record to ascertain the existence of ingredients of the offences. Learned counsel also submitted that if two views can equally be deduced from the materials and evidence it is more proper for the court to take the view going in favour of the accused and criminal proceeding should be dropped by way of discharging the accused. The learned counsel also contended that all the allegations Crl. Petn. No. 18 & 22/10 Page 5 of 5 against the petitioner are casual and based on individual suspicion and surmises, which cannot be the basis to frame charges of heinous offence of murder with conspiracy and that too against the senior most Administrative Officer of an University. The learned Sr. counsel also submitted that expulsion of the students from the University to control the agitation; not speaking in a farewell function of students; not garlanding the dead body of the deceased and challenging the deceased for his unfair agitation are not enough to draw a conclusion that the accused Goswami had hatched a conspiracy or was involved in the offence of murder.
9. The law with regard to the discharge of an accused by the Sessions court has been laid down under Sections 227 and 228 of the Cr.P.C. For ready reference these provisions of law are extracted below :
"227. Discharge- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
"228. Framing of charge-(1) if, after such consideration and hearing as aforesaid the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Crl. Petn. No. 18 & 22/10 Page 6 of 6 Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused."
2. Where the Judge frames any charges under clause
(b) of sub-s(1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
10. The issue as to when charges of criminal offences can be framed and when can an accused be discharged are no long res-integra . These legal issues have come up before the Hon'ble Supreme Court on several occasions; even before the amendment of the Code of Criminal Procedure in the year 1973 and post amendment of the Code. After threadbare discussion of the law, their Lordships of the Apex Court, in the case of Prafulla Kumar Samal (Supra) have laid down the following parameters to be followed by the court at the stage of framing of charges.
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of Crl. Petn. No. 18 & 22/10 Page 7 of 7 universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
11. The aforesaid fundamental principles are being consistently followed till date; including in the decisions cited by the learned counsel for the petitioners. In the case of Sajjan Kumar -vs- Central Bureau of Investigation; reported in (2010) 9 SCC 368 the apex court has further amplified the contours of the courts as to when criminal charges can be framed and as to when an accused can be discharged. The legal principles governing this field have been summed-up as under:
"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i)The Judge while considering the question of framing the charges under Section 227 Cr. P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.Crl. Petn. No. 18 & 22/10 Page 8 of 8
(ii)Whether the materials placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii)The Court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv)If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (emphasis is mine).
(v)At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence of offence by the accused was possible.
(vi) At the stage of Section 227 and 228, the court is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii)If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."Crl. Petn. No. 18 & 22/10 Page 9 of 9
12. In the case of Satish Mehra -Vs- Delhi Administration; reported in (1996) 9 SCC 766, the Apex Court no doubt added that when the judge is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. However, in the case of State of Maharastra and Others -vs- Som Nath Thapa and Others; reported in (1996) 4 SCC 659, the theory of rebuttal of evidence has been discarded. Even in the case of Sajjan Kumar (supra) the apex court has in no uncertain terms held that probative value of materials on record cannot be gone into and the court would be justified to frame charges if it is of the opinion that the accused might have committed the offence alleged.
13. The mystery of murder of Arushi Talwar and her domestic help is still unresolved. In the said case also the investigation was done by the premier investigating agency, CBI. After marathon investigation and also even after using modern techniques, the CBI could not come to a definite conclusion as to who had committed twin murders and finally a closure report was submitted on 29.12.2010. However, the closure report was not accepted by the court and instead the Magistrate took cognizance of the offence and summoned the parents of Arushi Talwar as accused. The summons issued by the learned Magistrate were challenged before the High Court and Apex Court. While dismissing the criminal appeal and review petition filed by the accused Nupur Talwar the Hon'ble Supreme Court has held that Crl. Petn. No. 18 & 22/10 Page 10 of 10 while issuing a process a Magistrate is to be satisfied as to whether there is "sufficient grounds for proceeding" and not whether there is "sufficient ground for conviction". In my considered opinion, the same legal principle is applicable at the stage of framing of charges.
14. In view of the aforesaid authorities it can be summed- up that a criminal trial passes through various stages. Broadly, a criminal trial can be divided in four stages. Firstly, taking cognizance of a complaint/FIR; Secondly, framing of charges; Thirdly, receiving prosecution evidence and Fourthly, obtaining defence evidence, if any, which culminates into pronouncement of judgment. In my considered opinion, taking cognizance of a complaint/FIR is nothing but opening of the first page of a book. In the second stage, which is known as "consideration of charge", the court gives a cursory look at the evidence collected by the Investigating Officer. At this stage also the court is not expected to foresee as to what evidence an accused is likely to give during the trial and what evidence may be forthcoming during examination and cross examination of the prosecution and defence witnesses.
15. As has been repeatedly pointed out by the Hon'ble Supreme Court at the stage of framing of charges, the court is only required to come to a conclusion that there is a prima- facie case and that the accused is surrounded by a strong suspicion. I am also of the view that if at this initial stage of trial the evidence is meticulously scanned and a conclusion is drawn that there is remote possibility of conviction and Crl. Petn. No. 18 & 22/10 Page 11 of 11 accused is discharged without giving opportunity to the prosecution to convert its prima-facie evidence in the form of legal evidence it would amount to foreclosing the conclusion halfway.
16. The legal principle of "Justice" is not one way traffic. If framing of charge(s) against an accused without any legal evidence amounts to miscarriage of justice, discharge of an accused, despite there being a prima-facie case, also would equally amounts to miscarriage of justice. If an accused has a legal right to claim his or her discharge in absence of strong materials against him/her the victim and the complainant also has a right to ask the court to give him opportunity to establish the charges. In this way, both the accused and the victim have equal rights and the courts have to strike a balance and tread carefully at the initial stage of criminal trial. Keeping in mind these principles of law, I would now proceed to discuss the evidence gathered against the petitioners by the investigating agency.
17. As could be gathered from the record all together 35 witnesses were examined by the Investigating Officer. The witnesses include students, teachers, and the employees of the Dibrugarh University as well as persons who were some how connected with the University. Some of the witnesses were intimate friends of the deceased. Father of the deceased Sri Bholaram Bora was also examined by the I.O. as PW 29.
Crl. Petn. No. 18 & 22/10 Page 12 of 1218. SRI DIBYHASH GOSWAMI From the statement recorded by the Investigating Officer it appears that majority of the witnesses have narrated in detail as to how the aforesaid accused was entertaining animosity against the deceased. According to the witnesses, the accused indulged in corruption and malpractices. During the year 1978 a Committee, headed by retired Justice Jagajit Singh of Punjab and Haryana High Court, was constituted. In the report of the committee 8(eight) out of 25 (twenty five) charges were established. By that time the deceased had became a member and convener of an organization called United Reservation Movement Council of Assam ( URMCA). At or the same time the deceased also became the member of newly formed United Students Federation. In the year 1982, USF merged with the Indian Students Association and the deceased Saurav Bora became the Secretary of the Assam Unit of the Association and he was also elected as the President of Indian Students Association in the year 1985.
19. From the statements and the Final Report of the CBI, it also appears that the deceased spearheaded an agitation against the corrupt practices of the Registrar of the Dibrugarh University namely, Dr. Dibyahash Goswami. As a part of their movement against the Registrar eight students had published pamphlets, criticizing the anti reservation policy of the AASU and the AGP (a regional political party). To contain the movement 8 (eight) students, who were signatory to the pamphlets, were expelled from the University.
Crl. Petn. No. 18 & 22/10 Page 13 of 1320. The witnesses have also stated before the Investigating Officer that the deceased had delivered a lecture in a fresher's social function highlighting the malpractices of the accused and also distributed the copies of the enquiry report of Justice Jagajit Singh. In view of sustained agitation and exposing the corrupt practices of the Registrar, he got annoyed and refused to share a cup of tea with the new comers. The ill feelings towards the deceased were also exhibited in a farewell party of the outgoing students and he walked out from the function in an angry mood. A good number of witnesses have also stated that the accused Dr. Dibyahash Goswami had threatened and challenged the deceased Saurav Bora by saying that in future either the accused or the deceased would remain alive in the University. This incriminating statement has not only been spoken by the students but has also been corroborated by the teachers and independent witnesses from the University campus.
21. Sri Bhattacharyya, learned Sr. counsel for the aforesaid petitioner argued that the challenge to the deceased by uttering words that either he or the deceased would remain alive in the University does not admit of any intimidation or threat for his murder. According to the learned counsel the warning can also be construed to mean that the deceased was warned that he may not be allowed to remain in the University campus. In my considered opinion, without giving the prosecution an opportunity to elicit from the witnesses as to what was the intention of the threat it would Crl. Petn. No. 18 & 22/10 Page 14 of 14 not be proper for this court to declare that the accused had no intention to give a life threat to the deceased.
22. The other incriminating circumstance appearing against the petitioner is that some of the witnesses have stated that the prime accused Sri Mridul Dutta and Sri Ramesh Dutta had once came to the dining hall of the hostel and warned the deceased Saurav Bora to stop propaganda against the Registrar else he would be done away with. This warning by the co-accused persons was also in favour of the Registrar. It is difficult to believe that the petitioner/accused had no role or involvement in issuing threat to the deceased through co-accused persons. Whether such threats were issued in conspiracy with the petitioner or with common intention to eliminate the deceased would be decided in the trial.
23. The witnesses have also spoken about the unusual conduct of the accused after the murder of Saurav Bora. A large number of witnesses have also stated that when the dead body of Saurav Bora was brought to the University campus for offering condolence, the Registrar (accused) did not garland the dead body nor condemned the murder. With respect to this incriminating circumstance, the learned Sr. counsel submitted that for various reasons the accused in his capacity as Registrar may not have garlanded the dead body but this conduct cannot connect the petitioner in hatching a conspiracy or associating himself with the assailants of the deceased for the offence of murder. I agree with the submission of the learned counsel. However, it is to be kept Crl. Petn. No. 18 & 22/10 Page 15 of 15 in mind that the aforesaid incident is not the only incriminating circumstance against the petitioner. This circumstance has to be seen and read with other circumstances.
24. Sri Bhattacharyya, learned Sr. counsel also argued that the petitioner has been implicated in the offence on suspicion and all the witnesses have given hearsay statement.
25. It is true that almost all the witnesses have stated that they believe and suspect that Saurav Bora was murdered in conspiracy with the petitioner Sri Goswami with other persons. At the same time, the witnesses have given reasons for their suspicion. Besides this, it is not correct that all the statements are hearsay inasmuch as the father of the deceased himself namely, Sri Bholaram Bora has stated that he was told by his son that his life was in danger because of the challenge given by the Registrar. Not only father of the deceased was told about the threat by his son but a number of student witnesses have given direct statements about the threat by the accused to the deceased. Hence, it cannot be said that the charges have been framed solely on the basis of hearsay statements.
26. In view of the settled legal position, I am forbidden to discuss the evidence at length. I am also of the view that if a categorical finding is given on any of the incriminating circumstance both the prosecution as well as the accused may suffer prejudice in the trial and any obiter observation may also influence the trial judge. As a whole, I hold that it Crl. Petn. No. 18 & 22/10 Page 16 of 16 is not a case where it can be definitely said that there is no prima-facie case for trial of the accused Sri Dibyahash Goswami or that there are no materials wherefrom it can be opined that there is no grave suspicion against the accused so as to discharge him at the initial stage of the trial.
27. For the foregoing reasons, the Criminal Petition No. 22 of 2010, submitted by Dr. Dibyahash Goswami is hereby dismissed.
28. SRI SARBANANDA SONOWAL Adverting to the statements of witnesses recorded by the Investigating Officer and other materials on record, I am of the view that the prosecution has laid a weak foundation of trial so far as the present accused is concerned. Out of 35 witnesses only half a dozen witnesses speak something about this petitioner.
29. Witness Nos.6 and 11 namely, Deva Kumar Chutia and Amarjyoti Gogoi respectively have stated that during the agitation in the University against expulsion of 8 (eight) students by the Registrar the petitioner Sarbananda Sonowal and one co accused, Kukheswar Saikia, had brought two outsiders ( co-accused, Mridul Dutta and Ramesh Dutta) who had threatened the deceased Saurav Bora that if he did not stop the agitation he will have to face dire consequences. However, these witnesses are totally silent to say that the petitioner himself had issued any threat to the deceased. While discussing the case of Sri Dibyahash Goswami, I have Crl. Petn. No. 18 & 22/10 Page 17 of 17 noted that the co-accused Mridul Dutta and Ramesh Dutta had threatened the deceased of dire consequences if they continue to vilify the Registrar and there is no evidence that the petitioner had accompanied the said co-accused persons in the University hostel.
30. Witness No.8, namely Anup Gogoi, has stated that in the night of 27.5.1986 the petitioner and co-accused Kukheswar Saikia and Biren Baruah had stayed in the Registrar's house. This solitary statement has not been corroborated by any other witness. It may also be mentioned here that this witness has also stated that the petitioner had accompanied co-accused Mridul Dutta and Ramesh Dutta as well as the co-accused Biren Baruah and Kukheswar Saikia to the University and threatened the agitating students. This witness is a contractor by profession and he has not stated that at the relevant time he was in the University hostel or that the threat was given in his presence. In this way the statement of witness of Anup Gogoi appears to be hearsay one.
31. Witness No.10, namely, Prem Kumar Mahato, has stated that he heard that the Registrar had paid Rupees 30,000/- to the co-accused Mridul Dutta, ostensively for eliminating the deceased, although not specifically said so. According to the witness the payment was made through the petitioner and co-accused Biren Baruah. Though it is a hearsay statement it has been contradicted by the father of the deceased who has stated that Biren Baruah had paid Rs. 30,000/- to Mridul Dutta to kill Saurav and the said money Crl. Petn. No. 18 & 22/10 Page 18 of 18 was given to Biren Baruah by the Registrar. This was the only strong evidence against the petitioner. However, the statements appear to be hearsay in nature and at the same time the co-accused Biren Baruah has already been discharged by the learned Addl. Sessions Judge in its order dated 28.12.2009. Since the co-accused has already been discharged on the basis of the same set of evidence, the petitioner, Sri Sarbananda Sonowal also deserves to be treated at par at this stage.
32. Witness No. 12, Debabrata Sarma, has stated before the Investigating Officer that the petitioner had accompanied co- accused Kukheswar Saikia and warned the deceased to stop the agitation, else they will face dire consequence. I would like to make it clear that this threat was allegedly given at the main gate of the University where the students were agitating against expulsion of 8(eight) students and not in the University hostel where the prime accused Mridul Dutta and Ramesh Dutta had issued threat to the deceased on behalf of the Registrar.
33. Sri Mahajan, learned counsel for the petitioner submitted that being the President of Students Union it was the duty of the accused to bring normalcy in the University campus and such a threat or warning had no nexus with the murder of Saurav Bora. The learned counsel also submitted that after the expulsion order was stayed by the High Court in the month of January the situation had calmed down. It may be mentioned herein that murder was committed in the Crl. Petn. No. 18 & 22/10 Page 19 of 19 month of May and there was sufficient gap after the warning to the students to suspend their agitation.
34. In view of the aforesaid discussion of statements of the relevant witnesses I am of the view that the Investigating Agency (CBI) has rightly concluded that there were no materials to proceed against Sarbananda Sonowal. Although the entire case rests upon circumstantial evidences, but, the established legal position is that the incriminating circumstances should be conclusive and also complete the chain to nail down an accused. In the case of the petitioner, the evidences are very weak in nature and it is difficult to take a view that even a prime-facie case exists against him. In other words, the materials on record are not sufficient to form an opinion that the petitioner may also be involved in the conspiracy or had a common intention in the murder of Saurav Bora.
35. In the result, the Criminal Petition No. 18 of 2010 stands allowed. The order dated 21.12.2009, passed by the learned Addl. Sessions Judge Dibrugarh in Sessions case No. 132of 2009 is interfered with so far as the accused Sri Sarbananda Sonowal is concerned. The said accused stands discharged at this stage. Needless to mention here that in course of trial of the co-accused persons if the learned trial judge comes across legal evidence against the petitioner Sri Sarbananda Sonowal he shall be at liberty to re-summon the accused to face the trial, in exercise of the powers under Section 319 of the Code of Criminal Procedure.
Crl. Petn. No. 18 & 22/10 Page 20 of 2036. The Registry is directed to send back the trial court's record immediately with a copy of this judgment.
JUDGE Upadhaya Crl. Petn. No. 18 & 22/10 Page 21 of 21