Gauhati High Court
Anwar Hussain Kazi vs The State Of Assam And Anr on 22 September, 2022
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GAHC010193252022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./967/2022
ANWAR HUSSAIN KAZI
S/O- MOINUL HOQUE KAZI, R/O- VILL.- CHANDIPUR GRANT
(GAURANGAPUR), P.O. AND P.S. ALGAPUR, DIST. HAILAKANDI, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
TO BE REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:MOSHID ALI LASKAR
S/O- LATE HARUS ALI LASKAR
VILL.- CHANDIPUR GRANT
P.O. CHANDIPUR
P.S. ALGAPUR
DIST. HAILAKANDI
ASSA
Advocate for the Petitioner : MR. A M BARBHUIYA
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
22/09/2022
Heard Mr. A M Barbhuiya, learned counsel for the petitioner as well as Mr.
Bhaskar Sarma, learned Additional Public Prosecutor for the State.
2. By this criminal petition filed under Section 482 Cr.P.C. read with Article
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227 of the Constitution of India, the petitioner has challenged the legality of (i)
the judgment & order dated 12.09.2022 passed by the learned Sessions Judge,
Hailakandi in Criminal Revision Petition No. 47/2022, (ii) the order dated
01.07.2022 passed by the learned Munsiff No. I-cum-Judicial Magistrate, First
Class, Hailakandi in G.R. Case No. 488/2022 corresponding to Algapur P.S. Case
No. 49/2022 and (iii) the order dated 07.07.2022 passed by the learned Munsiff
No. I-cum-Judicial Magistrate, First Class, Hailakandi in the aforesaid
proceedings. The orders dated 01.07.2022 and 07.07.2022 were affirmed by the
order dated 12.09.2022 passed in Criminal Revision No. 47/2022.
3. In brief, the case projected by the learned counsel for the petitioner is
that his sister, who is stated to be a minor at the relevant point of time, had
allegedly eloped with one Abdul Munim Laskar and accordingly, an FIR was
lodged on 10.05.2022 which was registered as Algapur P.S. Case No. 49/2022
corresponding to G.R. Case No. 488/2022 under Section 363 IPC as the
petitioner has alleged that his sister was kidnapped. While the petitioner has
produced various documents before the learned Judicial Magistrate, 1 st Class,
Hailakandi to project that his sister was a minor, aged 14 years but his victim
sister had produced certain documents which shows that she is a major.
4. By referring to the Examination-in-Chief and cross-examinations of CW1
and CW2, who are the Headmasters of the concerned Gaurangapur L.P. School
at the relevant point of time, had denied the correction of the school certificate
produced by the victim to be fake and therefore, the learned Trial Court after
recording that the victim was a minor and that she was hiding her actual age
and as she had refused to go to her parents' house, she was sent to C.W.C. at
Hailakandi and the Investigating Officer was directed to ascertain the
authenticity of the documents submitted by both the parties and to submit his
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report.
5. It is submitted that after the order dated 25.05.2022 passed by the
learned Trial Court, the respondent No. 2 appeared before the learned Trial
Court out of the blue and submitted an application on 07.06.2022 to ascertain
the age of the victim through Ossification Test and also produced a certificate
dated 01.01.2013 issued by the Head Teacher of Gaurangapur L.P. School and
another certificate dated 01.01.2016 issued by the Headmaster of Chandripur
M.V. School which was to project that the victim girl was a major. Thus, based
on the same, on a petition No. 805/2022 filed by Shahid Ali Laskar (ought to be
Moshid Ali Laskar), the respondent No. 2, the learned Additional Chief Judicial
Magistrate, Hailakandi, by order dated 07.06.2022, had directed personal
appearance of the present Headmaster of Gaurangapur L.P. School and by a
subsequent order dated 18.06.2022, the learned Additional Chief Judicial
Magistrate, Hailakandi again directed the personal appearance of the present
Headmaster and earlier Headmaster of Gaurangapur L.P. School. The In-charge
Headmaster of Chandripur M.V. School was examined as CW3 on 07.07.2022,
who had produced the original Admission Register of a girl named Kazi Jasmina
Begum Laskar. On the said date, by an order dated 07.07.2022, the learned
JMFC, Hailakandi had also ordered for conducting Ossification Test of the victim
girl.
6. The learned counsel for the petitioner has submitted that until
07.07.2022, in all the documents relating to his minor sister, her name is
reflected as Jasmina Begum Laskar and for the first time, a new document has
been brought on record to show the changed name of his sister Jasmina Begum
Kazi as Kazi Jasmina Begum Laskar.
7. It is submitted that the said two orders dated 01.07.2022 and 07.07.2022
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were upheld by the lower Revisional Court, which is not sustainable on facts and
in law.
8. The Court finds merit on the submissions made by the learned counsel
for the petitioner that perhaps a third party, who is not the immediate guardian
of the alleged minor victim girl, cannot be allowed to participate in a criminal
proceeding when the informant, who had lodged the FIR is very much
contesting the same. Therefore, when the immediate family member of the
victim is available, the Court is of the considered opinion that this case calls for
examination of the locus standi of said Shahid Ali Laskar @ Moshid Ali Laskar to
interfere in a criminal trial, and to influence the proceeding so as to change the
direction of the investigation.
9. Issue notice, returnable on 11.11.2022.
10. No formal steps is required to be taken in respect of the respondent No.
1, as the State is represented by the learned Additional Public Prosecutor.
However, extra copy of the criminal petition be provided to him to obtain
instructions.
11. Petitioner shall take steps within 2 (two) days for service of notice on the
respondent No. 2 by registered post with A/D as well as by usual process
through the Jurisdictional Magistrate routed through the Registry of this Court.
12. As the presence of the alleged victim is also found necessary, the
petitioner is directed to implead the alleged victim as respondent No. 3.
13. The impleadment shall be done in presence of the Registrar (Judicial)
and thereafter, notice be issued on the respondent No. 3 by registered post as
well as by usual process.
14. Moreover, along with the certified copy of this order, learned counsel for
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the petitioner shall also provide one copy of this criminal petition with all the
enclosures to the Secretary, Assam State Legal Services Authority so as to
enable him to transmit the same to the Secretary, District Legal Services
Authority, Hailakandi, who would meet the victim girl namely, Jasmina Khanam
Kaji @ Jasmina Begum Kazi, daughter of Late Moinul Hoque Kazi, who is
presently lodged in Ujala Home at Hailakandi and if required, the victim shall be
permitted to appear before this Court through the Legal Aid Counsel to
represent her case.
15. List this matter on 11.11.2022.
16. Till the next date of listing, the impugned (i) judgment & order dated
12.09.2022 passed by the learned Sessions Judge, Hailakandi in Criminal
Revision Petition No. 47/2022, (ii) order dated 01.07.2022 passed by the learned
Munsiff No. I-cum-Judicial Magistrate, First Class, Hailakandi in G.R. Case No.
488/2022 corresponding to Algapur P.S. Case No. 49/2022 and (iii) order dated
07.07.2022 passed by the learned Munsiff No. I-cum-Judicial Magistrate, First
Class, Hailakandi shall remain stayed.
17. The petitioner shall produce a certified copy of this order before the
Court of Judicial Magistrate, First Class, Hailakandi to bring the order to the
notice of the said learned Court.
JUDGE
Comparing Assistant
