Gauhati High Court
Manik Chandra Hazarika vs Bibhison Pegu & Anr on 13 March, 2012
Author: I. A. Ansari
Bench: I. A. Ansari
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
Criminal Petition No. 282 of 2009
Petitioner:
Sri Manik Chandra Hazarika
By Advocates :
Mr. N. Dutta, Senior Advocate
Mr. T.J. Mahanta, Advocate
- versus -
Opposite party:
Sri Bibhison Pegu and another
By Advocates:
Mr. H. Deka, Advocate
Mr. D Das, Addl. P.P.
BEFORE
THE HON'BLE MR. JUSTICE I. A. ANSARI
Date of hearing : 13th March, 2012
Date of Judgment : 13th March, 2012
JUDGMENT & ORDER
(O R A L)
With the help of this application, made under Section 482 Cr.PC., the
petitioner, who is one of the accused in GR Case No.50/2005, corresponding to
CR Case No.321/2008, has put to challenge the order, dated 15.07.2009, passed
by the learned Additional Chief Judicial Magistrate, North Lakhimpur, whereby
the learned Magistrate has framed charge against the present petitioner and
some others under Section 406 read with Section 34 IPC.
2. I have heard Mr. N. Dutta, learned Senior counsel, for the accused-
petitioner, and Mr. D. Das, learned Additional Public Prosecutor, Assam. I have
also heard Mr. H. Deka, learned counsel, for the opposite party No.1.
2
3. Before coming to the merit of the present application, made under Section
482 Cr.PC., the material stages, which have led to the framing of the charge by
the impugned order, are set out, in brief, as under:
(i) The informant, Bibhison Pegu, lodged a First Information Report
(in short, 'the FIR'), at North Lakhimpur Police Station, alleging, inter alia, that
on 10.01.2005, Sashidhar Sonowal, librarian of North Lakhimpur College,
collected a sum of Rs.34,000/- to 35,000/- from the students as examination
fees and, upon making collection, the said amount was handed over by the said
Sashidhar Sonowal to the present petitioner, Manik Hazarika, and that these two
persons have misappropriated the entire amount of money belonging to the
college. Based on this FIR, North Lakhimpur Police Station Case No.35/2005,
under Sections 406/34 IPC, was registered against the present petitioner and
the said Sashidhar Sonowal as accused.
(ii) Since the investigation, according to the investigating officer, did
not reveal sufficient incriminating materials against the present petitioner and
co-accused Sashidhar Sonowal, a final report was submitted. It is noteworthy
that the investigating officer reported that he had visited the place of
occurrence, examined the informant and other available witnesses, but found no
evidence against the two accused aforementioned; rather, during investigation,
it surfaced, according to the investigating officer, that the Governing Body of
North Lakhimpur College held a meeting on 08.01.2005 and removed the
informant, Bibhison Pegu, from the post of the Principal of the said college, the
meeting having been attended by the accused persons too and that the
informant lodged the FIR against the two persons on personal grudge. It was
also reported by the Investigating Officer that on 10.01.2005, the informant,
along with some other students of the said college, assaulted Sashidhar Sonowal
and snatched away Rs.6,000/- from his pocket and also the keys of the library of
3
the said college and that the informant and his supporters not only broke the
lock of the main door, took away the examination fees amounting to Rs.35,000/,
but also the examination forms and, on the basis of an FIR received in this
regard, North Lakhimpur Police Station Case No.35/2005, under Sections
294/325/379/342/34 IPC, was registered against the present petitioner as accused. It was further reported by the Investigating Officer that it was only after the FIR was lodged by Sashidhar Sonowal leading to the registration of North Lakhimpur Police Station Case No.33/2005 aforementioned that the present informant has lodged the FIR, which has led to the registration of North Lakhimpur Police Station Case No.35/2005.
(iii) On submission of the final report, as indicated above, an application was filed by the present informant in the case aforementioned, wherein it was alleged that since the police had submitted final report, the informant has been constrained to file the complaint. The said complaint gave rise to CR No.321/2008, wherein the learned Court below examined the complainant and, having held an enquiry under Section 202 Cr.PC., directed issuance of process against the accused-petitioner and the said Sashidhar Sonowal under Sections 406/34 IPC.
(iv) The learned Court below, then, recorded the evidence before charge and by its order, dated 15.07.2009, aforementioned, framed, as already indicated above, a charge, under Section 406 read with Section 34 IPC, against both the accused aforementioned including the present petitioner. Though the petitioner has pleaded not guilty to the charge so framed, he has nevertheless put to challenge framing of the charge.
3. While considering the correctness and sustainability of the impugned order, dated 15.07.2009, it needs to be noted that an offence under Section 406 IPC is punishable by imprisonment for three years with fine or with both. An 4 offence, which is punishable with death, imprisonment for life or imprisonment for a term exceeding two years, is, in the light of Section 2(x) Cr.PC, a warrant case. The procedure for trial in a warrant case arising out of a police report is distinctly different from the procedure for trial of an warrant case instituted on police report. The most significant aspect in the procedure for trial of a warrant case, instituted otherwise than on police report, is that a Magistrate can, in terms of Section 239 Cr.PC., discharge an accused only when he finds charge to be groundless. This apart, charge, in a warrant case, instituted on police report, is framed on the basis of the police report and the documents sent therewith under Section 173 (2)(i) Cr.PC and, upon making such examination, if any, of the accused as the Magistrate thinks necessary and, of course, upon giving prosecution as well as the accused an opportunity of being heard.
4. As against the above procedure for framing of charge in a warrant case, a combined reading of Section 244 and 245 Cr.PC shows that when in any warrant case, instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced by the prosecution in support of their case. Section 245 Cr.PC shows that if, upon taking all evidence referred to in Section 244 Cr.PC., the Magistrate considers, for reasons to be recorded, that the case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall frame appropriate charge or else, the Magistrate shall discharge the accused.
5. Thus, the standard of evidence, which has to be available for framing of charge in a warrant case, instituted otherwise than on police report, is far higher than the materials, which are required to be in existence for the purpose of framing of charge in a warrant case instituted on a police report inasmuch a 5 Magistrate is bound to frame a charge in a warrant case, instituted than on a police report, unless he finds the charge to be groundless; whereas the standard for framing of charge in a warrant case, instituted otherwise than on police report, is that the Magistrate shall determine whether the evidence on record, if remains unrebutted, would warrant conviction of the accused or else, the Magistrate shall discharge the accused.
6. In other words, in order to enable a Magistrate to frame charge in a warrant case, instituted otherwise than on police report, the evidence must be such, which shall, if allowed to remain unrebutted, warrant conviction of the accused.
7. In the present case, the learned Magistrate, as the impugned order reflects, has framed the charge on formation of an opinion that there are prima facie materials against both the accused persons. This approach by the learned Magistrate is wholly misconceived in law inasmuch as no charge, in the present case, could have been framed unless the learned Magistrate could have reached the conclusion that the evidence, which had been brought on record before the stage of framing of a charge, was such that it would warrant conviction of the accused, under Sections 406/34 IPC, if the evidence remains unrebutted.
8. Bearing in mind, therefore, the standard of materials, which are required for the purpose of framing of a charge in a warrant case, instituted otherwise than on police report, let me turn to the evidence, which was recorded before the charge was framed in the present case.
9. Let me, first, take note of the evidence of PW1, who is the complainant. According to his evidence, he lodged an information with the police in the year 2005 stating to the effect, inter alia, that on 08.01.2005, an illegal meeting was 6 held in North Lakhimpur College alleging that the informant was a self-styled Principal and the meeting resolved that Manik Hazarika, i.e., the present petitioner, should be the acting Principal, because Yunul Ali Hazarika, who was the former Principal, died on 26.10.2004. PW1 has also deposed that on 08.01.2005 and prior thereto, Sashidhar Sonowal was entrusted with the responsibility of collecting examination fees from the students and he accordingly collected a sum of Rs.36,000/-, but did not submit the said collected amount of money to the informant as it had been resolved, in the meeting aforementioned, that Manik Hazarika would be the acting Principal. PW1 claims that he demanded money on 10.01.2005, but Sashidhar Sonowal told him that he would give the money to the new Principal and assured to give the money to the complainant on the following day, but did not return the money.
10. Two things become apparent from the evidence of PW1, namely, that there was a meeting held on 08.01.2005 of the college, in question, and in the meeting, it was resolved that present petitioner would be the Principal. Holding of this meeting may or may not be illegal. As far as the petitioner was concerned, the meeting was legal; whereas the informant claims that the meeting was illegal. Be that as it may, the money was, admittedly, collected by the co-accused, Sashidhar Sonowal, and it is Sashidhar Sonowal, who told that he would give the money to the new Principal, i.e., the present petitioner, because the meeting aforementioned had resolved to make the present petitioner as acting Principal.
11. There is nothing in the evidence of PW1 to show that the money, in question, was handed over to the present petitioner by Sashidhar Sonowal at any point of time. There is also no evidence given by PW1 that the present petitioner had misappropriated the amount, which had been collected by Sashidhar Sonowal after having received the amount, or that the present 7 petitioner had misappropriated the said sum of money after having acquired dominion over the money.
12. Coming to the evidence of PW2, who happens to be a lecturer of the said college and who has himself admitted that though he passed L.LB in the year 2002, he had obtained licence for practising as an advocate from the Bar Council in the year 2001, i.e., before he had actually passed law and when this fact came to light, his licence was cancelled. This witness's evidence, therefore, needs a very cautious examination and what this witness has deposed is that on 08.01.2005, accused Sashidhar Sonowal, Assistant Librarian of North Lakhimpur College, on the direction of the complainant, collected annual fees of a sum of Rs.37,000/- and, on that very day, a meeting took place in the campus of the said college, where Sashidhar Sonowal and the present petitioner were present, the present petitioner was appointed as Principal and Sashidhar Sonowal handed over the said collected amount to the accused Manik Hazarika and not to the complainant, Bibhison Pegu. It is in the evidence of PW2 that on 10.01.2005, Sashidhar Sonowal told the complainant that as he had given the money to accused Manik Hazarika, (i.e., the present petitioner), he (Sashidhar Sonowal) would not be able to give the money to the complainant and though he (Sashidhar Sonowal) had assured the informant that he would bring the money and hand over the same to the informant, but till 5.30 pm on 11.01.2005, the accused Sashidhar Sonowal did not return nor did he pay the money to the complainant.
13. From the evidence of PW2, what surfaces is that the money, in question, was handed over to the present petitioner. This would, at best, show that the petitioner was entrusted with the money or the petitioner had acquired dominion over the money. Whether the petitioner misappropriated the money 8 is the question, which ought to have been raised by the learned trial Court at the time of framing of charge. In this regard, PW2 does not claim that anyone had requested or asked the present petitioner to hand over the money, but the accused-petitioner refused to do so, nor is there any allegation made by PW2, in his evidence, that the present petitioner has misappropriated the money, in question.
14. Thus, the evidence of PW2 also does not satisfy the requirement of Section 406 IPC inasmuch as Section 406 IPC requires not mere entrustment of property to a person, but also requires misappropriation of property or with any dominion over property, dishonest misappropriation or conversion of the property to his own use or dishonest use or disposal of that property.
15. Turning to the evidence of PW3, I notice that according to this witness, he was present in the said meeting held, on 08.01.2005, in the college campus, wherein the present petitioner was appointed as acting Principal and that the meeting decided that the fees collected should be given to the acting Principal. It is also in the evidence of PW3 that Sashidhar Sonowal collected the examination fees; but the fees, so collected, was not given to complainant; rather the money was given to the new Principal, i.e., the present petitioner.
16. The evidence of PW3 is equally deficient for the purpose of framing of charge under Section 406 IPC against the present petitioner inasmuch as even PW3 has, nowhere, claimed that the money was demanded back from the present petitioner, but the present petitioner refused to hand over the money. There is also no evidence whatsoever indicating that the appointment of the present petitioner, as acting Principal, was illegal.
9
17. What emerges from the above discussion is that though there is some materials on record to show that the money, collected by Sashidhar Sonowal, had been handed over to the present petitioner, the fact remains that there is absolutely nothing on record to show that the present petitioner had, at any stage, been asked to hand over the money. In such circumstances, it could not have been held that if the evidence remains unrebutted, it would warrant conviction of the present petitioner under Section 406 IPC with or without the aid of Section 34 IPC. Resultantly, therefore, no charge, under Section 406 IPC read with Section 34 IPC, could have been framed against the present petitioner.
18. Pausing here for moment, I may point out that because of the fact that the co-accused, Sasidhar Sonowal, has not challenged the order of framing of charge, the observations made herein shall remain confined only to the case of the present petitioner.
19. Because of the fact that the evidence on record were, in the light of the provisions of Section 245 Cr.PC., wholly deficient to frame a charge against the present petitioner under Sections 406/34 IPC, the impugned order cannot be allowed to stand good on record to the extent that the same concerns the present petitioner. This apart, even if one were to assume that the charge could have been framed, in terms of Section 239 Cr.PC., the fact remains that when there was not even an iota of material on record to show that at any point of time, the money, in question, had been demanded from the present petitioner, but the present petitioner had refused to part with the money, the learned trial Court ought to have held that the charge against the present petitioner was wholly groundless. In neither case, therefore, charge could have been framed against the present petitioner under Section 406 read with Section 34 IPC. 10
20. In the result and for the reasons discussed above, this application, made under Section 482 Cr.PC., succeds. The impugned order, dated 15.07.2009, is hereby set aside and quashed so far as the present petitioner is concerned.
21. Send back the LCR.
JUDGE njdutt