Utpal Gohain vs The State Of Assam And Anr
2021 Latest Caselaw 483 Gua

                                                                                       Page No.# 1/5

GAHC010027192016




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Pet./792/2016

            UTPAL GOHAIN
            S/O LT. JITENDRA GOHAIN R/O KHARGULI, NEAR BORTHAKUR CLINIC,
            GUWHATI UNDER LATASIL POLICE STATION, IN THE DIST.OF KAMRUP,
            ASSAM.

            VERSUS

            THE STATE OF ASSAM AND ANR

            2:SMTI. NANDITA KONWAR
            W/O SRI UTPAL GOHAIN R/O KHARGHULI
             NEAR BORTHAKUR CLINIC
             GUWAHATI UNDER LATASIL POLICE STATION IN THE DIST. OF KAMRUP
            ASSAM

Advocate for the Petitioner   : MR.C PHUKAN

Advocate for the Respondent : PP, ASSAM R1

BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

Date : 11-02-2021

JUDGMENT & ORDER

By this criminal petition, the extra ordinary power under Section 482 CrPC is sought to be invoked for quashing the order dated 14.09.20216 passed in GR Case No. 9590/2011, whereby, the learned Judicial Magistrate First Class, Kamrup (M) framed charges against the petitioner under Section 448/380 IPC and also to quash the entire proceeding in the aforesaid Page No.# 2/5

criminal case.

2. Learned counsel Mr. B.M. Choudhury appearing for the petitioner and Mr. D.K. Kothari for the respondent No. 2 as well as Mr. B.B. Gogoi, learned Addl. P.P. for the respondent No. 1 were heard.

3. The brief facts of the case, which may be relevant for disposal of this criminal petition are that the respondent No. 2 lodged an FIR on 02.10.2011 against the present petitioner alleging interalia, that the petitioner committed domestic violence on the respondent No. 2, for which, she had to file criminal cases including proceeding under Protection of women against Domestic Violence Act (in short D.V. Act), being MC No. 122m/2010. In the proceeding under DV Act, learned Magistrate passed various prohibitory orders including restraining the petitioner to perpetrate domestic violence against the respondent No. 2 from dispossessing the respondent No. 2 from the share household, entering into the portion of the shared household in possession of the respondent No. 2 etc. and in violation of the said order, the petitioner trespassed into the house of the respondent No. 2 and had taken away various articles including her personal diary, ornaments, cash amount etc. by breaking the almira. On the basis of the said FIR, police registered Latasil P.S. Case No. 197/2011 under Section 453/380 IPC and after completion of the investigation, submitted charge sheet against the petitioner under Section 448/380 IPC. On the basis of the charge sheet filed by police, learned Judicial Magistrate took cognizance and framed charges against the petitioner under Section 380/448 IPC by the order impugned.

4. Learned counsel for the petitioner, Mr. B.M. Choudhury, submitted that the allegations made in the FIR were false and concocted and the object of the FIR was only to wreak vengeance on the petitioner. Mr. Choudhury further contended that various cases have been filed by the respondent No. 2 including proceeding under D.V. Act, only to harass the petitioner. It is also contended by the learned counsel for the petitioner, that there was no specific date etc. as to the commission of offence and the FIR was lodged only when the petitioner produced photocopies of some pages of the personal diary of the respondent No. 2 in the proceeding under the D.V. Act. It is also contended that the FIR was lodged after about 45 days. Learned counsel further contended that during investigation, police did not collect any Page No.# 3/5

cogent evidence against the petitioner, which could lead to his conviction and as such, learned Magistrate ought not to have framed charge. In support of his submission, Mr. Choudhury placed reliance on the decision of the Apex Court in State of Haryana & Ors. Vs. Bhajanlal & Ors. reported in 1992 Supp (1) SCC 335.

5. Per contra, counsel for the respondent submitted that for the purpose of framing charge, court is not required to come to a finding as to whether the accusation or material brought on record would ultimately lead to conviction of the accused. A strong suspicion as regards the possibility of the accused being involved in the commission of the offence is sufficient for framing charge. It is also contended that court cannot analyze the probative value of the evidence and materials at the time of framing charge. According to the learned counsel for the respondent, the materials brought on record including the allegations made in the FIR was sufficient to draw a presumptive opinion as to the probability of committing the offence and as such, the proceeding cannot be quashed at this stage on the ground, that the allegations made are false or concocted.

6. Section 239 & 240 CrPC provides, that if upon considering the police report and the documents sent with it and examination of the accused, if any, and after giving opportunity of being heard to the prosecution as well as to the accused, the Magistrate considers that the accusation against the accused is groundless, he shall discharge the accused. If upon such consideration and examination, if any, and hearing of the accused and the prosecution, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable by Magistrate, charge shall be framed. Therefore, in order to frame a charge, the Magistrate is required to peruse the materials brought before it by police along with the report submitted under Section 173 CrPC and to examine the accused, if any, and upon such examination and hearing, if finds prima facie material to draw a presumptive opinion as to probability of the commission of offence by the accused, charge can be framed. It is neither required nor desirable on the part of the Magistrate to sift the evidence meticulously to come to a finding whether the evidence and the materials brought during investigation would lead to conviction of the accused. In other words, the probative value of the evidence and materials cannot be gone into at the time of framing of charge. Though sifting of the evidence and the materials for limited purpose of ascertaining whether there are grounds for framing charge is permissible at the time of framing of charge, court cannot Page No.# 4/5

scrutinize the probative value of the evidence and material at the time of framing of charge.

7. In Union of India Vs. Prafulla Kumar Samal reported in (1979) 3 SCC 4, the Apex Court observed that 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.

8. The Apex Court in Supdt. & Remembrancer of Legal Affairs Vs. Anil Kumar Bhunja reported in AIR 1980 SC 52 observed that the time of framing charge even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence.

9. In Sajjan Kumar Vs. CBI reported in (2010) 9 SCC 638, the Apex Court also reiterated the same principle and observed that 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. The Apex Court also observed that 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. The Apex Court further observed that at the time of framing of the charges, the probative value of the material on record cannot be gone into.

10. Keeping in view of the above principle for framing charge, when we turn to the facts and materials of the present case, we find that there were clear allegations of house trespass and commission of theft, inasmuch as, though the petitioner and the respondent No. 2 were husband and wife, because of the strain relation between them and a criminal proceeding under DV Act, they had to live separately and by virtue of the prohibitory order, the petitioner was restrained from entering the house of the respondent No. 2. That the petitioner and the respondent No. 2 were living separately is an admitted position as would appear from the materials on record. It also appears from the statement recorded under Section 161 CrPC that Page No.# 5/5

the respondent No. 2 and the petitioner were living separately because of the criminal proceeding among them. Though, the learned counsel for the petitioner submitted that there was a delay of 45 days in lodging the FIR or that the allegations made in the FIR were false or concocted, those are disputed facts, which can be gone into only in course of trial. The criminal proceeding cannot be quashed at the threshold on the ground that the allegations were false or on the basis of any other defence material sought to be relied by the accused, inasmuch as it is only in the course of trial the court can ascertain the probative value of the evidence and the materials. An enquiry as to the merit of the case on the correctness of the materials cannot be undertaken by the High Court while exercising extra ordinary jurisdiction under Section 482 CrPC.

11. On perusal of the allegations made in the FIR and the materials collected during investigation, it cannot be said that there was no ground for drawing presumptive opinion as to the existence of factual ingredients constituting the offence alleged or as to the probability of commission of offence, for the purpose of framing charge. In my considered view the allegations made in the FIR as well as the materials brought on record were sufficient to draw a presumptive opinion as to commission of offence and as such, the impugned order framing charge against the petitioner cannot be faulted at this stage, nor the same can be quashed without giving an opportunity to the learned trial court to examine the evidence and material brought on record for taking the criminal proceeding to its logical conclusion.

12. In view of the above facts and circumstances, in my considered view, the petitioner has not been able to make out a case for setting aside the impugned order of framing charge or to quash the proceeding at the initial stage. Accordingly, this petition is found devoid of merit and dismissed.

13. Send down the LCR.

JUDGE

Comparing Assistant