Gauhati High Court
Md. Aminur Rahman vs The State Of Assam And Anr on 9 February, 2021
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GAHC010080752019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./448/2019
MD. AMINUR RAHMAN
S/O LATE UZIR ALI, R/O H/NO.9, GANDHI BASTI, P.S.-CHANDMARI,
GUWAHATI-03, DIST-KAMRUP(M), ASSAM
VERSUS
1.THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:RAFIA BEGUM
W/O AMINUR RAHMAN
R/O IRRIGATION QTR
CHANDMARI COLONY, GUWAHATI
P.S.-CHANDMARI, DIST-KAMRUP(M)
ASSAM, PIN-78100
Advocates for the petitioner: Mr. D. Talukdar and
Mr. P. Choudhury.
Advocate for the respondents: Mr. M.P. Goswami, Addl. P.P., Assam,
Mr. K. Bhattacharjee,
Mr. O.K. Shrestha,
Mr. A. Ali and
Ms. B. Talukdar.
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing and judgment: 09.02.2021.
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JUDGEMENT AND ORDER
Heard Mr. D. Talukdar, learned counsel appearing for and on behalf of the petitioner/husband.
Also heard Mr. M.P. Goswami, learned Addl. P.P., Assam appearing for the State respondent and Mr. K.
Bhattacharjee, learned counsel appearing for and on behalf of the respondent/wife.
2. Having regard to the submission so made and the materials available in the case record, the
matter is taken up for disposal at the admission stage itself.
3. The petitioner herein has been arrayed as the accused in the G.R. Case No.13735/2015 and
the charge has been framed under Section 498(A) of the IPC, vide order dated 09.01.2019, by the
Court of learned Judicial Magistrate 1st Class, Kamrup (M) at Guwahati. Challenging the order of
framing of charge and the entire proceeding, the petitioner is before this Court by way of this petition
under Section 482 of the CrPC, contending that the FIR as well as the statement of the victim coupled
with the statement of the witnesses, so far examined by the prosecution under Section 161 of the
CrPC, no charge is sustainable under Section 498(A) of the IPC and as such, framing of charge is bad
in law and continuation of the proceeding without any supporting evidence from any independent
witness will amount to abuse of the process of law, if such proceeding is allowed to continue.
4. Mr. D. Talukdar, the learned counsel for the petitioner/husband has referred to the allegation
raised in the FIR, which reveals that the informant although has referred to three instances, two
incidents happened in the year 2003 and 2013 respectively but both the matters have been
compromised by the parties and the present FIR pertains to the third incident that took place on
16.12.2015, wherein the accused person threatened to kill her at night, along with some miscreants
with him.
5. It is contended by the learned counsel for the petitioner that going by the allegation itself, the
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offence under Section 498(A) of the IPC is not attracted, neither the witnesses examined under
Section 161 of the CrPC, has supported her contention.
6. Referring to a decision in the case of Union of India vs. Prafulla Kumar Samal and another,
reported in (1979) 3 SCC 4, it has been submitted that the Court has ample power to quash the
proceeding even after framing of charge, while the materials on record raise no grave suspicion
against the accused but only on some suspicion about his involvement. Accordingly it has been
submitted that the charge which has also been framed in a defective manner, in absence of any
supporting evidence, it should be quashed and set aside. Such an order of framing of charge is also
placed in record.
7. Mr. K. Bhattacharjee, learned counsel appearing for the respondent/wife has however
vehemently contended that this Court, in a proceeding under Section 482 of the CrPC, cannot
appreciate the evidence on record and statement of the witnesses recorded under Section 161 of the
CrPC and such a inherent power can be invoked in an extra ordinary situation but not in a routine
manner.
8. Referring to the decisions reported in (1) 2015 3 Crimes (SC) 89 (The State Rep. by Inspector
of Police, 'Q' Branch, CID, Tirunelveli Range, Tamil Nadu vs. Mariya Anton Vijay), (2) 2019 0 Supreme
(SC) 815 (Chilakamarthi Venkateswarlyu vs. State of Andhra Pradesh) and (3) 2020 0 Supreme (SC)
143 (Rajeev Kourav vs. Baisahab and others); it is contended that under the power under Section
482 of the CrPC, the High Court cannot act as an appellate Court, by appreciating and weighing the
materials on record and cannot conclude that the charge sheet could not have been filed against the
accused person and therefore no charges could have been framed. It has also been held in the
aforesaid decision that, such appreciation of evidence is to be made by the trial Court only.
9. It has been clearly held that the inherent power under Section 482 of the CrPC has to be
carefully exercised so that no injustice is done to the parties. So far as regards the injustice in
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concerned, it is to be held that it should be of a grave and not of a trivial character and it should be
palpable and clear and not doubtful and there should exist no other provision of law by which the
party aggrieved could have sought relief. Under Section 482 of the CrPC, the High Court does not
function as a Court of Appeal or Revision.
10. The aforesaid observations and findings have a bearing to the facts in issue before this Court
now, in view of the dispute raised. According to the petitioner, no any offence is made out against the
accused/petitioner to attract the offence under Section 498(A) of the IPC, in view of the last incident
that has mentioned, which speaks only about the threatening to the informant.
11. On the other hand, the learned counsel for the respondent has submitted that Section 498(A)
(a) of the IPC prescribes that any willful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman, the
framing of charge by the learned Court below under the provision "to cause grave injury or danger to
life, limb or health of the woman" will be attracted in the present case and as such it will not be
justified to interfere with the charge so framed by the learned trial Court.
12. I have gone through the materials on record and gave due consideration to the submission so
made by the parties.
13. So far as the framing of charge is concerned, the Court is required to form an opinion as to
whether any prima facie material is there to frame charge, under the law and as has been indicated,
there is scope of framing the charge under Section 498(A)(a) of the IPC. Further, in view of the
decisions rendered by the Hon'ble Apex Court, as mentioned above, this Court should not seat as an
Appellate Court to appreciate the evidence at this stage, as the trial Court is in seisin of the matter
and the Court can proceed, on the basis of the statement of the victim herself.
14. Having regard to the materials on record and the discussion made above, this Court is of the
opinion that the learned trial Court is still in a position to alter the charge under Section 216 of the
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CrPC, if so mandates after recording the statement of the victim and to proceed accordingly.
15. The present petition stands disposed of, with a direction to the learned trial Court to take into
account of the statement and the victim/informant, about the necessity of alteration of charge, in due
course of hearing.
16. With the above observation, the petition stands disposed of.
JUDGE
Comparing Assistant
