Dipak Borah vs The State Of Nagaland And Anr
2022 Latest Caselaw 4312 Gua

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GAHC010255212018




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

                                Case No. : Crl.Pet./1174/2018

            DIPAK BORAH
            S/O KAMAL BORAH, R/O VILLAGE KANAIBORAH CHUBRI, PO BESSERIA,
            PS TEZPUR, DIST. SONITPUR, ASSAM, PIN-784001



            VERSUS

            THE STATE OF NAGALAND AND ANR.
            REP. BY LD. PUBLIC PROSECUTOR, NAGALAND

            2:MEDOKHOLIE ZOSSUMO
             S/O SRI SAO ZOSSUMO
             R/O VILLAGE- PHESAMA
             PO KOHIMA
             PS KOHIMA
             DIST. KOHIMA
             NAGALAD
             PIN 79700

Advocate for the Petitioner   : MR. A K PURKAYASTHA

Advocate for the Respondent : PP, NAGALAND




                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                          ORDER

Date : 07-11-2022

Heard Mr. A.K. Purkayastha, learned counsel for the petitioner; Ms. T. Kro, Page No.# 2/5

learned Additional Public Prosecutor for the State of Nagaland/respondent no. 1; and Mr. T. Islam, learned counsel for the respondent no. 2-complainant.

2. The background facts, sans the necessary details, leading to the institution of the instant criminal petition under Section 482, Code of Criminal Procedure, 1972 can be stated as follows : the crime case, East Dimapur Police Station Case no. 99/2013 [corresponding G.R. Case no. 219/2013] came to be registered on the basis of a First Information Report [FIR] lodged by the respondent no. 2-complainant before the Officer In-charge, East Dimapur Police Station on 03.05.2013. On receipt of the FIR, the Officer In-charge, East Dimpur Police Station registered the case for offences under Sections 420/407/34, Indian Penal Code [IPC]. Sri Dipak Borah, who instituted the instant criminal petition, was arrested in connection with East Dimapur Police Station Case no. 99/2013 on 22.05.2013 and subsequently, released on bail on 05.06.2013. After completion of the investigation in connection with East Dimapur Police Station Case no. 99/2013, the Investigating Officer of the case submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 292/2015 dated 28.10.2015. The charge sheet was filed stating that a prima facie case for commission of the offences under Sections 419/420, IPC was found established against the accused, Dipak Borah.

3. The instant criminal petition under Section 482, CrPC was preferred by Dipak Borah as the petitioner seeking modification / re-consideration / cancellation / recalling of a judgment and order dated 30.09.2013 passed by the Kohima Bench of this Court in Transfer Petition [Crl.] no. 1[K]/2013 with a further prayer for transfer of the trial of G.R. Case no. 219/2013, arising out of East Dimapur Police Station Case no. 99/2013, from the Court of learned Chief Judicial Magistrate, Dimapur, Nagaland to any other Court of competent Page No.# 3/5

jurisdiction in the State of Assam, preferably at Tezpur.

4. It is submitted by the learned counsel for the parties, in unison, that by an order dated 28.11.2018, this Court while issuing notice on the criminal petition, passed an interim order to the effect that till the returnable date, further proceedings of G.R. Case no. 219/2013, arising out of East Dimapur Police Station Case no. 99/2013, pending in the Court of learned Chief Judicial Magistrate, Dimapur, Nagaland ['the trial court', for short] shall remain suspended. The said interim order continued thereafter until this date.

5. It has been further submitted by the learned counsel for the parties, in unison, that during the pendency of the instant criminal petition, Dipak Borah expired on 03.07.2019.

6. Mr. Purkayastha, learned counsel for the petitioner has submitted that in view of the demise of Dipak Borah, the criminal prosecution instituted against Dipak Borah as the accused, which is presently pending before the learned trial Court shall abate. It is submitted by him that when the matter of death of Dipak Borah was brought to the notice of the learned trial court on 19.10.2022, the learned trial court though accepted and confirmed the death of Dipak Borah, the accused in G.R. Case no. 219/2013, has declined to discharge the bailor till receipt of necessary order from this Court on the ground that the proceedings of the instant criminal petition is pending whereby the further proceedings of G.R. Case no. 219/2013 has been passed.

7. The basic and crucial tenets of the criminal jurisprudence are :- [i] Right to fair trial; [b] Presumption of innocence [not guilty] until pronouncement of guilt; and [c] Prosecution must prove its case beyond reasonable doubt. In a criminal trial, the accused must be presumed to be innocent until he is proved Page No.# 4/5

to be guilty. At this stage, it is apt to refer to the observations made by the Hon'ble Supreme Court of India in the case of U. Subhadramma and others vs. State of Andhra Pradesh, reported in [2016] 7 SCC 797 :

"8.................................. Concept of abatement of a trial could be subsumed in the section where the final judgment and order of the criminal court is one of acquittal. In this context, the presumption of innocence of an accused till he is convicted must be borne in mind and there is no reason to consider this presumption to have vaporised upon the death of an accused. It may be noted that this Court has time and again reiterated the presumption of innocence of an accused till he is convicted.

9.................................. It is too well settled that a prosecution cannot continue against a dead person. A fortiori a criminal court cannot continue proceedings against a dead person and find him guilty. Such proceedings and the findings are contrary to the very foundation of criminal jurisprudence. In such a case the accused does not exist and cannot be convicted."

8. The word "abatement" in P. Ramanatha Aiyar's The Law Lexicon 5th Edition is that "In Criminal Law : abatement of proceedings connotes their termination without any decision on the merits and without the assent of the prosecutor."

9. Since it is an admitted fact that Dipak Borah expired on 03.07.2019, the criminal proceedings instituted against him, presently pending in the form of G.R. Case no. 219/2013, has to be declared as abated. As a result of such abatement, the sureties are to be also discharged accordingly. In such view of the matter, the instant criminal petition stands closed as Dipak Borah, who Page No.# 5/5

instituted the criminal petition, has expired on 03.07.2019. The interim order passed earlier also stands recalled.

10. With the disposal of the criminal petition in the afore-stated manner and in view of the fact situation obtaining in respect of G.R. Case no. 219/2013, which is presently pending before the learned trial court i.e. the Court of learned Chief Judicial Magistrate, the learned trial court is at liberty has to pass the necessary order with regard to abatement of the trial of G.R. Case no. 219/2013 and also to pass consequential order regarding discharge of the sureties of the accused, Dipak Borah, who has already expired.

11. Having regard to the order dated 19.10.2022 passed by the learned trial court in G.R. Case no. 219/2013, it is, therefore, observed that the learned trial court shall pass the necessary order regarding abatement of the criminal proceedings against Dipak Borah [since deceased] on the next date of listing i.e. 15.12.2022, by taking into consideration the observations made above and shall also pass the necessary consequential order regarding discharge of the sureties of Dipak Borah [since deceased], on production of a certified copy of this order.

JUDGE

Comparing Assistant