Montajul Haque vs The State Of Assam And 5 Ors
2021 Latest Caselaw 2914 Gua

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GAHC010254772018




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

                          Case No. : Crl.Pet./1168/2018

         MONTAJUL HAQUE
         S/O LT. MAKUDDASH ALI
         VILL- MAKAN NAGAR, UPOR BASTI
         P.O. AND P.S. JIRIGHAT, DIST. CACHAR, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 5 ORS.
         TO BE REP.BY THE PP, ASSAM

         2:MD. ABDUL JALIL
          S/OLT. ABDUL KADIR
         R/O VILL- UPOR MAKAN NAGAR

          P.O.AND P.S. JIRIGHAT

          DIST. CACHAR
          ASSAM
          PIN - 788104.

         3:MISS. NUREDA BEGUM
          D/O ABDUL JALIL LASKAR
         R/O VILL- UPOR MAKAN NAGAR

          P.O.AND P.S. JIRIGHAT

          DIST. CACHAR
          ASSAM
          PIN - 788104.

         4:ABDUL HELIM
          S/OLT. ABDUL KADIR
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            R/O VILL- UPOR MAKAN NAGAR

             P.O.AND P.S. JIRIGHAT

             DIST. CACHAR
             ASSAM
             PIN - 788104

Advocate for the Petitioner    : MR. K A MAZUMDER

Advocate for the Respondent : PP, ASSAM

:: BEFORE ::

HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN

Date of hearing and judgment: 17.11.2021.

JUDGEMENT AND ORDER

Heard Mr. K.A. Mazumder, learned counsel appearing for the petitioner/informant. Also heard Mr. L.R. Mazumder, learned counsel appearing for the respondent Nos. 2 to 4, however there is none to represent the State/respondent No.1 as well as the respondent Nos.5 and 6.

2. By filing this petition under Section 482 of the CrPC, the petitioner has sought for appropriate direction to the investigating agency for further investigation of Jirighat P.S. Case No.20/2018, corresponding to G.R. Case No.112/2018, under Section 306/34 of the IPC, as the FIR named accused (respondent Nos. 2 to 4) were not mentioned/implicated as accused, while submitting the charge sheet in the aforesaid P.S. case.

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3. The case of the petitioner, in brief, is that he being the father of the deceased Fularani Begum, lodged an FIR on 23.04.2018, stating that his daughter had love affairs with the accused No.1 of the FIR, namely- Saharul Islam and both of them got married as per the Muslim rituals by executing Kabin Nama. But the family members of the accused No.1 was not satisfied regarding their relation from the very beginning and after the marriage, his daughter was harassed by her in-laws and also tortured her and ultimately killed her on 13.11.2017, by administering poison, at 12:00 P.M. On that day, hearing hue and cry in the house of matrimonial home of his deceased, his brother-in-law Anwarul Haque went to the place of occurrence and found the petitioner's daughter dead and informed the petitioner. On query made by Anwarul Haque to the family members of the accused persons, they remain silent and later on fled away from the place of occurrence. By that time, the petitioner reached the house of his deceased daughter and found her dead. Suspecting the accused persons to be behind the incident, the petitioner lodged the FIR and accordingly the Jirighat P.S. Case No.20/2018 was registered under Sections 306/34 IPC.

4. The police accordingly started investigation of the case and arrested the husband of the victim and her mother-in-law namely, Saharul Islam and Salima Begum respectively and submitted a forwarding report on 21.05.2018, wherein the SDJM, Lakhipur in Cachar District had specifically mentioned that the inmates of her matrimonial home tortured her physically and mentally, due to which she could not bear the mental anxiety and eventually committed suicide on 13.11.2017.

5. It is the case of the petitioner that the I.O., due to extraneous consideration, never arrested the respondent Nos. 2 to 4 of this petition, in spite of their involvement in the incident, whereas the forwarding report of the other accused Page No.# 4/7

clearly indicates about the involvement of the accused/respondent Nos. 2 to 4, in the alleged offence. As per the petitioner, after completion of the investigation, the I.O. in arbitrary and illegal manner, submitted the charge sheet on 30.05.2018, under Section 306/34 of the IPC, only against two accused, without implicating some of the FIR named accused i.e. respondent Nos. 2 to 4 of the present petition. The respondent Nos. 2 to 4 were even not arrested by the I.O., during the course of investigation.

6. As such, in the interest of justice, the petitioner/informant, by filing the present petition, sought for further investigation of the entire case by the Superintendent of Police, Cachar to find out the involvement of the accused/ respondent Nos. 2 to 4 in the incident suspicious death of his daughter. Accordingly, the present petition is filed.

7. I have heard the submission of learned counsel Mr. K.A. Mazumdar for on behalf of the petitioner and according to him, the investigation was perfunctorily done and the charge sheet should have been laid under Section 302 IPC and there is a scope for further investigation in the present case. Referring to the decisions in Ramachandran v. R. Udhayakumar and Ors., (2008) 5 SCC 413 and Chanra Babu alias Moses v. State through Inspector of Police and Ors., (2015) 8 SCC 774, it has been submitted that the trial court as well as the High Court have the power to direct for further investigation in an appropriate case but the lower has no power to direct for reinvestigation and only in exceptional case Hon'ble Supreme Court has the power to direct for reinvestigation.

8. In K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223 , the Hon'ble Supreme Court has elaborated that scope and ambit under Section 173 of the Page No.# 5/7

Code wherein it has been held that a plain reading of the above section reveals that even after completion of investigation under sub-section (2) of Section 173 of the Code police has the right to further investigate under Section 8 but not fresh investigation or reinvestigation. Further, it is held that the dictionary meaning of further is "additional, more, supplemental". Further investigation, therefore, is a continuation of earlier investigation and not a fresh investigation or reinvestigation, to be started ab initio wiping out the earlier investigation together. In drawing the conclusion, it clearly envisaged that on completion of further investigation the investigating agency has to forward the Magistrate a further report, regarding further evidence obtained

9. In Vinay Tyagi v. Irshad Ali @ Deepak and Ors. (2013) 5 SCC 762 , it has been held that power of Magistrate to direct investigation has to be exercised sparingly and, in exceptional cases to achieve the ends of justice. The superior courts have the jurisdiction under Section 482 CrPC or under Article 226 of the Constitution to direct further, fresh or de novo investigation provided ends of justice demands us action and such power has to be exercised sparingly with great circumspection.

10. The leaned counsel for the respondent Mr. L.R. Mazumder appearing for the respondent nos.2 to 4 vehemently refuted the contention of the petitioner that in the given facts and circumstances of the case, where there is no cogent material to suggest for further investigation and whereas the case has been ended at charge sheet and cognizance has been taken by the court, such a petition is not maintainable and liable to be dismissed. In support of this case, reliance has been placed upon the decision of Nupur Talwar v. Central Bureau of Investigation, (2012) 11 SCC 465 and 1997 CRI. L.J. 779 SC. In both the cases, it has been held that once the Magistrate has taken cognizance of the offence issuing process Page No.# 6/7

against the accused person, there is no scope for granting relief of further investigation.

11. Also heard the learned Addl. P.P. and perused the case diary.

The submission of both the parties is duly considered and gone through the entire record.

12. Going by the contents of the FIR, it would reveal that the daughter of the informant eloped with the accused Saharul Islam out of love and affection about 3 years ago (prior to her death) and the informant having no alternative given Nikhah of his daughter with the accused no.1 but they are not in visiting term even after the marriage and admittedly he never visited the house of his daughter during her life time. Only on hearing about the matter that his daughter is in critical condition in the house of the accused, they went there and found his daughter dead in hospital. The medical report reveals the cause of death is taking insecticide on examination of viscera. From the circumstantial evidence gathered during the investigation, it reveals that the victim was harassed by her husband and her mother-in-law, for which she committed suicide by consuming poison inside the house. The FIR is filed only on suspicion by the father of victim and he had no personal knowledge of any such torture neither, he was informed by his daughter (victim).

13. On the basis of such evidence on record, although the case was registered under Section 302 IPC, the I/O submitted charge sheet under Section 306 IPC. On examination of the statement of witnesses including the informant and the neighbour of the accused persons, it reveals that there is no eyewitness to the Page No.# 7/7

occurrence. Even the informant who was not in good terms with the accused persons and the victim woman and has no any knowledge about the relation between the parties and whatever he has stated are all hearsay. So far as regard the statement of neighbours, it is found that they have also no knowledge about such dowry demand and cruelty upon the victim on the part of the accused persons, save and except, they heard certain quarrel between the parties. In the given facts and circumstances where there is no supporting evidence to the occurrence, only on the allegation of the informant himself, further investigation can't be directed. The I/O has duly investigated the matter and laid the charge sheet under the appropriate section of law.

14. From the foregoing discussion, this Court is of the opinion that no irregularity was done in the investigation conducted by the I/O and no scope of further investigation & hence interference to the same, is uncalled for. The exercise of inherent power under Section 482 CrPC is an extra-ordinary power and can be invoked, only, in exceptional circumstances & with circumspection to prevent miscarriage of justice. The petition lacks merit, stands dismissed.

JUDGE

Comparing Assistant