Crl.Pet. 688/2015

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Crl. Petn. No. 688/2015 Md. Sanowar Khan S/o Late Badiruddin Khan, R/o village Jagi, P.O. and P.S.-Teok, District Jorhat, Assam. ..… Petitioner -Versus- 1.The State of Assam 2. Mustt. Firoza Begum, W/o Jargish Khan, R/o Village Sonari Town, BPC Road, Ward No. 5, P.O. and P.S. Sonari, District Sibsagar, Assam. ..… Respondents Crl. Petn. No. 699/2015 Jyosna Begum @ Jusna Begum, W/o Md. Sanowar Khan, R/o village Jagi, P.O. and P.S. Teok, District Jorhat, Assam. ..… Petitioner -Versus- 1. The State of Assam 2. Mustt. Firoza Begum, W/o Jargish Khan, R/o Village Sonari Town, BPC Road, Ward No. 5, P.O. and P.S. Sonari, District Sibsagar, Assam. ..… Respondents 2 B E F O R E HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the petitioners : Mr. A.K. Hussain, Advocate For the respondent : Mr. B.J. Dutta Addl. Public Prosecutor, Assam. Date of hearing & Judgment : 27.04.2016 JUDGMENT AND ORDER (ORAL) Both petitioners have preferred the above two petitions as against the same order dated 31.07.2015 passed by learned SDJM, Charaideo, Sonari, Sibsagar, and the matter being related are taken up for disposal by this common order. 2. Heard Mr. A.K. Hussain, learned appearing for and behalf of the petitioners and Mr. S.K. Talukdar, learned Addl. P.P. appearing for and on behalf of the State respondent in both the cases. None appears for the respondent No. 2. 3. The case of the petitioners is that the respondent No. 2 lodged a complaint case before the SDJM at Charaideo, Sonari, against her husband (1) Md. Jargish Khan (2) mother-in-law/ Jyosna Begum @ Jusna Begum (one of the petitioners herein), (3) Md. Maina and (4) Ms. Salma Begum @ Bini for the offence under Section 498 (A) IPC read with Section 4 of the D.P. Act and the same complaint was forwarded to the O.C., Sonari P.S. for registration of the case and for investigation. Accordingly, the case was registered and after due completion of the investigation, charge sheet was submitted against the accused persons (1) Md. Jargish Khan. On receipt of the charge sheet, the learned court below took the cognizance of the matter pertaining to G.R. Case No. 723/09 under Section 498 (A) IPC. Accordingly, the aforesaid accused stood the trial and the learned court after examining the complainant as witness found that her in-laws are also involved in the case and they are also impleaded as accused in the said case and summons were issued to them vide order dated 31.07.2015. 3 4. Challenging the aforesaid order that the petitioners have been impleaded as accused in the aforesaid case without proper evidence on record, the present petitions have been preferred by the petitioners. By drawing attention to the complaint case so filed by the petitioners and the charge sheet so filed in the aforesaid case, the learned counsel for the petitioners have submitted that in the aforesaid complaint petition the petitioner Sanowar Khan was not made an accused and though the petitioner Jyosna Begum @ Jusna Begum was arrayed as an accused in the aforesaid complaint petition but she was not charge- sheeted for which no cognizance was taken against her. The respondent No. 2/complainant has not challenged the charge-sheet so filed in the case. 5. The learned court while examining the respondent No. 2/complainant who has given a categorical statement that “On 10.11.09 her husband, mother in law, father in law, Sanowar Khan tortured her and driven her out from the house. They asked her to bring good furniture and Rs. 1 lakh otherwise she will not be allowed to enter the house. They have taken away her son”. On the basis of the aforesaid statement, the court has impleaded the petitioner Sanowar Khan and Jyosna Begum @ Jusna Begum as accused. 6. On the basis of submission so made by the learned counsel, I have found that the complaint/the respondent No. 2 made no allegation as against Sanowar Khan nor he was made an accused in the said case and charge sheet was also not filed against him. Obviously the complaint/ the respondent No. 2 has given her evidence beyond her pleadings and it is inconsistent with her own case. So such evidence is not enough to invoke the provision of Section 319 Cr.P.C. so far as regards the petitioner Sanowar Khan. 7. The learned counsel for the petitioner also relied on the decision of the Hon’ble Apex Court in (2006) 13 SCC 421 reported in Anil Singh and Another Vs. State of Bihar and Ors. and (2009) 2 SCC 696 reported in Lal Suraj Alias Suraj Singh & Another Vs. State of Jharkhand, wherein the nature and scope under Section 319 Cr.P.C. has been discussed. It has been categorically held that while issuing process by invoking provision under Section 319 Cr.P.C., the court should arrived at a reasonable satisfaction that prosecution would be able to prove the case against whom the process is sought to be issued and that there is reasonable prospect of conviction of such person. Only because some evidence have been brought on record, the same by itself may not be a ground to issue process. The power under Section 319 Cr.P.C. is required to be exercised very sparingly. 4 8. In the given case the complainant never made a whisper against the petitioner Sanowar Khan in her complaint petition nor he was charge-sheeted at the conclusion of the trial and the learned trial court has not recorded any reason as to its satisfaction that there is ample evidence to sustain conviction of the petitioner Sanowar Khan, prior to his impleadment in the aforesaid case. Even otherwise also his complicity being not indicated in the complaint petition itself, there is remote chance of his conviction. That apart, only on the basis of one line statement of the victim woman without any further evidence, in the given background, the impleadment of the petitioner is not sustainable. 9. In view of legal proposition laid down by Hon’ble Apex Court, the said order is bad in law. 10. The power under Section 482 Cr.P.C. can be invoked to prevent the abuse of process of law. In the given case continuation of trial as against the petitioner Sanowar Khan will be nothing but abuse of process of law and it will also cause injustice to a person to compel him to face a litigation without there being proper evidence against him. Accordingly, the order dated 31.07.2015 as regards the petitioner Sanowar Khan is hereby set aside. However, it appears that the complicity of the petitioner Jyosna Begum @ Jusna Begum is already suggested in the complaint petition as well as in evidence, though not charge-sheeted. In such backdrop, her impleadment in the aforesaid case is not required to be interfered into. She will face the trial accordingly. 11. With the observation made above, both the petitions stand disposed of. JUDGE arup .

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