Abdul Mannan vs The State Of Assam And 6 Ors
2021 Latest Caselaw 2740 Gua

                                                                    Page No.# 1/7

GAHC010204832019




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

                        Case No. : Crl.Rev.P./355/2019

         ABDUL MANNAN
         S/O LATE SAMSER ALI, R/O VILL-JAMUGURI, P.O.-ALITANGANI, P.S.-
         JURIA, DIST-NAGAON, ASSAM, PIN-782124



         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

         2:MOHAMMAD ALI
          S/O LATE HUSSAIN ALI
          R/O VILL-ALITANGANI
          P.O.-ALITANGANI
          DIST-NAGAON
         ASSAM
          PIN-782124

         3:KHALILUR RAHMAN
          S/O NURUL HAQUE
          R/O VILL-JAMUGURI
          P.O.-JAMUGURI
          DIST-NAGAON
         ASSAM
          PIN-782124

         4:IMDADUL ISLAM
          S/O NURUL HAQUE
          R/O VILL-JAMUGURI
          P.O.-JAMUGURI
          DIST-NAGAON
         ASSAM
          PIN-782124
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            5:ABU SHAMA
             S/O NURUL HAQUE
             R/O VILL-JAMUGURI
             P.O.-JAMUGURI
             DIST-NAGAON
            ASSAM
             PIN-782124

            6:ZAKIR HUSSAIN
             S/O LATE NURUL HUDA
             R/O VILL-JAMUGURI
             P.O.-JAMUGURI
             DIST-NAGAON
            ASSAM
             PIN-782124

            7:NUR ZAMAN HOQUE
             EX I/O OF JURIA P.S.
             S/O NURUL HOQUE
             R/O VILL-BORMONIPUR
             P.S.-MIKIR BHETA
             DIST-NAGAON (ASSAM)
             PIN-78214

Advocate for the Petitioner   : MR. S K DAS

Advocate for the Respondent : PP, ASSAM




                                     BEFORE
                         HONOURABLE MR. JUSTICE NANI TAGIA

                                        JUDGMENT

Date : 09.11.2021

Heard Mr. D. Barman, learned counsel for the petitioner and Mr. P. Sarma, learned APP for the respondent no.1. None has appeared for the respondent no.2-7, though notice on respondent nos.2-7 have been served as indicated in order dated 01.04.2021.

2. This is an application under Section 397 read with Section 401 Page No.# 3/7

Cr.P.C. assailing the order dated 28.05.2019 passed in PR Case No.1436/2015 by the learned Additional Chief Judicial Magistrate, Nagaon whereby the proceeding was stopped under Section 258 Cr.P.C. and all the accused persons were discharged.

3. The facts leading to filing of the instant revision petition are as follows: the petitioner had lodged a complaint against the respondent nos.2-6 before the Officer-In-Charge, Juria P.S. on 11.01.2015 alleging that on 11.01.2015, at about 3 A.M., the accused persons along with a group of anti social elements armed with deadly weapons entered into his plot of land and tried to occupy the same forcefully and dismantled his house and thereafter, constructed a new house over the said plot. Pursuant to the above complaint, an FIR No.25/2015 under Section 143/447/427 IPC was registered by the Officer-in-Charge of the Juria P.S. on 15.01.2015. On completion of the investigation, Final Report No.17/15 was submitted by the investigating authority of the Juria P.S. on 31.01.2015 stating that the dispute is of civil nature. Final Report filed by the police however was not accepted by the Court of learned Additional Chief Judicial Magistrate, Nagaon and the learned Additional Chief Judicial Magistrate by order dated 15.07.2015, while rejecting the Final Report, passed an order to the effect that prima facie case have been made out against the accused named in the FIR under Section 143/447/427 IPC and accordingly, cognizance was taken and PR Case No.1436/2015 was registered. Pursuant thereto, the complainant appears to have been examined on 18.02.2017. Thereafter, the learned Additional Chief Judicial Magistrate passed the impugned order dated 28.05.2019 under Section 258 Cr.P.C., discharging the accused persons. The impugned order is reproduced herein below for ready reference:

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"Accused persons Abu Shama and Mohammad Ali are absent with steps vide petition no. 2468. Prayer is allowed. Co-accused are present.

PWs absent.

S/R shows summons duly served upon the PWs but they did not turn up.

On perusal of C/R, it is seen that the instant case is pending in evidence stage since 27.05.16 and till date only one witness have been examined in spite of being given several opportunities.

Keeping in view the old pendency of the case and petty nature of the offence charged against the accused and also keeping in view the fact that accused are regularly appearing before the court on each fixed date which has caused great hardship to him, this court is of the view that evidence U/S 258 Cr.P.C. needs to be closed.

After hearing the learned Counsel for both the sides and also keeping in view the above facts PWs hereby closed U/S 258 Cr.P.C. As no any witnesses have been examined. Accused are hereby discharged."

4. From perusal of the impugned order dated 28.05.2019 passed by the learned Additional Chief Judicial Magistrate, Nagaon, reproduced hereinabove, it is noticed that the accused in PR Case No.1436/2015 have been discharged on the ground that though summons have duly been served upon the PWs, but they did not turned up and the case is pending in evidence stage since 27.05.2016 and till date, only one witness have been examined inspite of being given several opportunities. The other reasons given in the impugned order is that the case is an old pending one and offence charged against the accused is of petty nature and that since the accused have been regularly appearing before the Court on each date, great hardship have been caused to the accused.

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5. Section 258 of the Cr.P.C., which is a power to stop proceedings in certain cases reads as under:

"258. Power to stop proceedings in certain cases.- In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge."

6. While interpreting the scope of exercising power by the Magistrate to pass order under Section 258 Cr.P.C, the learned counsel for the petitioner has relied on the decision of the Kerala High Court rendered in the case of Suo Motu Proceedings versus State of Kerala and Ors., reported in 2019 (3) KLT 98. Paragraph 7 of the said judgment is quoted herein below:

"7. Section 258 can be invoked only in peculiar and unusual circumstances in cases, wherein no prima facie case is made out against the accused or when the accusation does not actually constitute an offence or for the reason that the prosecution is bound to fail on account of the technical defect. For the reason that the accused had absconded or that despite the initiation of coercive proceedings, his presence could not be secured is no reason to invoke Section 258 of the Cr.P.C. From the proceedings sheet, it does not appear that the learned Magistrate had made any genuine endeavour to secure the presence of the accused by exhausting the provisions under the Code. The order is laconic and is not supported by any reasons. The learned Magistrate has exceeded in its powers in invoking provisions of Section 258 of the Code and hence, Page No.# 6/7

cannot be sustained, the same being illegal and irregular."

7. The learned counsel for the petitioner has also relied on the decision of the Honourable Supreme Court of India in the case of Ranjan Dwivedi and Anr. Versus C.B.I., Through the Director General, reported in 2012 Legal Eagle (SC) 392 to contend that the trial cannot be terminated merely on the ground of delay without considering the reasons thereof.

8. From the decision of the Kerala High Court and the Honourable Supreme Court of India referred to hereinabove, it appears that power to stop proceedings under Section 258 Cr.P.C. should only be exercised where no prima facie case is made out against the accused or when the accusation does not actually constitute an offence or for the reason that the prosecution is bound to fail on account of technical defect. That apart, it has further been held that the provisions under Section 258 Cr.P.C. should not be invoked for the reason that the accused has absconded or that despite initiation of coercive proceeding, his presence could not be secured and that there is an inordinate delay in the conclusion of the trial.

9. In the case of State of Tripura versus Suresh Chandra Singh & Ors, (1986) 1 Gau LR 395, it has been held as under:

"Under Section 258, Cr.P.C. the Magistrate has jurisdiction to stop or terminate a criminal proceeding in a summons-case instituted otherwise than upon complaint at any stage either discharging or acquitting the persons accused of. The discretion under Section 258, Cr.P.C. is to be exercised only in the exceptional circumstances or compelling and special circumstances, for example, no case is made out against the accused."

10. In the instant case, the learned Additional Chief Judicial Page No.# 7/7

Magistrate in the impugned order dated 28.05.2019 appears to have invoked the power under Section 258 Cr.P.C. for the reason that since 27.05.2016, only one witness have been examined and rest of the witnesses have not turned up despite duly served with the notice and that the case is an old pending one involving petty nature of the offence charged against the accused, which in the considered view of this Court, is not a justifiable ground to order stoppage of proceedings in exercise of power under Section 258 Cr.P.C. for the reasons that reading of the complaint and the Final Report does not indicate that there is no prima facie case made out against the accused. Though, only one witness may have been examined since 27.05.2016 and that other witnesses may not have turned up despite service of summons, resulting in an inordinate delay in concluding the trial cannot be a ground to terminate the proceeding in exercise of power under Section 258 Cr.P.C. as held by the Honourable Supreme Court of India in the case of Ranjan Dwivedi (supra).

11. For the reasons indicated hereinabove, the impugned order dated 28.05.2019 passed by the learned Additional Chief Judicial Magistrate, Nagaon in P.R. Case No.1436/2015 stands interfered by leaving it open for the learned trial Court to proceed in accordance with law.

12. Revision petition stands allowed to the extent as indicated above.

JUDGE

Comparing Assistant