Maghi Ram Das vs The State Of Assam And Anr
2022 Latest Caselaw 3826 Gua

                                                                    Page No.# 1/7

GAHC010192382022




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

                                 Case No. : Crl.Pet./954/2022

            MAGHI RAM DAS
            SON OF LATE KEMERA DAS
            R/O VILL- MAJGAON JAJORI
            P.S. JAJORI, DIST. NAGAON, ASSAM, PIN-782145



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE PP, ASSAM

            2:SRI SWARNALIPI BORA
            W/O MANOJ TAMULI PHUKAN
            R/O LAWKHOWA ROAD

            LAKSHMI PATH
            P.S. SADAR
            DIST. NAGAON
            PIN-7878214

Advocate for the Petitioner   : MR. B K MAHAJAN

Advocate for the Respondent : PP, ASSAM




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 27-09-2022

Heard Mr. B.K. Mahajan, learned counsel for the petitioner as well as Mr. Page No.# 2/7

Bhaskar Sarma, learned APP for the State.

2. By this application under section 482 Cr.P.C read with section 397 and 401 of the Cr.P.C, the petitioner has prayed for quashing of the charge sheet no.596/2018 dated 28.05.2018 under section 447/294 IPC as well as quashing of the entire proceeding of PRC no.302/2019 arising out of Nagaon P.S. case no.1497/2018 under section 447/294 IPC which is presently pending for disposal before the Court of Judicial Magistrate First Class-cum-Munsiff No.2, Nagaon.

3. The prayer made in this petition is objected to by the learned APP on the ground that there are sufficient incriminating materials against the petitioner in the charge sheet.

4. The case projected by the learned counsel for the petitioner is that on 02.05.2018, a FIR was lodged by the respondent no.2 before the Superintendent of Police, Nagaon alleging, inter-alia, that on 03.04.2018 at about 1 p.m., the petitioner came to her house along with goons and on opening the door when she saw them, she immediately closed the door to save her life and accordingly, the prayer for investigation was made.

5. Based on the said FIR, the IO submitted the charge sheet on 28.05.2018 alleging that sufficient evidence was found against the petitioner. Thereafter the petitioner received a summon for appearance in the case which was numbered as PRC 302/2019 from the Court of learned Judicial Magistrate First Class-cum-Munsiff No.2, Nagaon, requiring him to appear before the said Page No.# 3/7

learned Court on 07.06.2022.

6. By referring to the case status print out, it was submitted that the case was fixed for several time on appearance from 03.09.2019 onwards and the next date of the case is fixed on 03.11.2022.

7. By referring to the documents appended to this petition, the learned counsel for the petitioner has projected that as per his service book, he was born on 01.03.1948 and accordingly, it is projected that the petitioner is now aged about 74 years. Referring to the various documents appended to this petition, it is projected that by virtue of a registered sale deed no.1007 registered on 13.03.2003 before the Sub-Registrar at Nagaon, the informant had sold a plot of land measuring about 2 kathas as described therein to the petitioner and on receipt of the consideration, the possession of the land was handed over to the petitioner.

8. By referring to the judgment and order dated 14.07.2017 passed by the learned Civil Judge, Nagaon in T.S. 22/2013, it is submitted that in the said order the finding of the learned trial Court is to the effect that after purchasing the land by the said sale deed, the land was mutated in the name of the petitioner. For some time the land was vacant initially and thereafter in the year 2003, the petitioner had constructed a bamboo framed house. Thereafter on 16.04.2013, the petitioner with a view to construct a boundary wall requested the informant to be present at the time of measurement, but she did not allow him to enter into the land and filed T.S. no.22/2013 by denying the execution of Page No.# 4/7

the sale deed and therefore, in the said suit the petitioner had filed a counter claim. From the said judgment, it further appears that although in the suit as well as in the counter claim the issues were framed, but during trial the informant remained absent and her suit was dismissed for default and the counter claim was decreed on contest with cost by declaring the right, title and interest of the petitioner over the scheduled land described in the counter claim and it was decreed that the petitioner be put into the possession of the said land by evicting the respondent no.2.

9. Resultantly, the decree was prepared and writ was ultimately issued by the learned Civil Judge, Nagaon for delivery of possession in connection with Title Execution case no.21/2017 wherein the decree was put into execution. It is projected that on 03.04.2018, the Civil Nazir along with the Lat Mandal had gone to the suit land for execution of the date of delivery of possession and the Lat Mandal had demarcated the decretal land and it was found that the informant was residing over the decretal land by constructing a pucca house. Therefore, as per the report of the Civil Nazir dated 03.04.2018, he along with the Lat Mandal had gone to meet the informant and she was informed about the decree but the informant had refused to obey the decree and raised hue and cry and therefore, the Civil Nazir had submitted a report requiring cooperation of the police and administration for demolishing the informant's house for execution of the writ of delivery of possession.

10. Ordinarily, the Court is slow in accepting the defence materials for the purpose of quashing of the charge sheet and the proceedings. Nonetheless, in the present case in hand, it is found that the defence materials on which the Page No.# 5/7

petitioner is relying is a judgment and decree dated 14.07.2017 passed in the counter claim in connection with T.S. 22/2013 as well as the Court of the Civil Nazir in connection with T. Ext. 21/2017 and it is not in doubt that the decree passed in the Civil Suit cannot be ignored merely because the informant has withheld such information in the FIR dated 02.05.2018 where the incident of 03.04.2018 was alleged, which is the same date in which the Civil Nazir had gone into the decretal land in execution proceeding and had submitted his report to the learned Civil Judge, Nagaon. Therefore, the Court is of the considered opinion that the Civil Nazir had gone to the house of the informant in connection with the execution of a writ issued in Title Ext. case no.21/2017. Thus, record of judgment and decree of a civil Court would be of sterling quality and the report of the Civil Nazir would have a persuasive value.

11. Be that as it may, as the aforesaid facts relating to the decree of the suit and the report of the Civil Nazir is required to be brought on record, the Court is of the considered opinion that this is a fit and proper case where considering the age of the petitioner and the background facts of his counter claim being decreed against the informant, the Court is of the considered opinion that ends of justice would be met if the petitioner is permitted to appear before the learned trial Court and pray for allowing him to be represented by his Advocate and make further prayer to allow him to introduce the documents related to civil suit and to take appropriate defence at the stage of explanation of charges as envisaged under section 239 Cr.P.C.

12. Be that as it may, without intending the following observations to the binding precedent, the Court is of the considered opinion that in the present Page No.# 6/7

case in hand, the document on which the petitioner intends to rely is a decree passed by the learned Civil Court in a counter claim where the petitioner is a plaintiff and the Civil Nazir report indicates that in respect of which the deed of possession was to be executed, this would be an appropriate case to direct the learned trial Court which is in sesin of the matter to provide an opportunity at the stage of explanation of charges under section 239 Cr.P.C. to the petitioner to produce the certified copy of the relevant documents. The learned trial Court will be at liberty to cross check the correctness of the veracity of the said documents by calling of the records and thereafter consider the materials which the petitioner will produce and the stage of explanation of charges as contemplated under section 239 Cr.P.C.

13. It is reiterated that the observations made herein before is not intended to be cited as a precedent and the observations is strictly qua the facts presented in the present petition.

14. Accordingly, the Court is inclined to close this petition by granting the following liberty to the petitioner:

a) The petitioner is permitted to appear before the learned trial Court and then apply for being represented by his learned counsel for the rest of the proceedings and to the learned Judicial Magistrate First Class-cum-Munsiff No.2, Nagaon shall consider the age of the petitioner and pass appropriate orders,

b) The petitioner is permitted to produce certified copy of the relevant documents before the learned trial Court at the stage of explanation of Page No.# 7/7

charges as envisaged under section 239 Cr.P.C. and the learned Court would be at liberty to verify the correctness of veracity of documents thereof by calling for the records, if required.

15. As prayed for by the learned counsel for the petitioner, the petitioner is at liberty to approach the Court again, if so advised.

16. This application stands disposed of at the motion stage without issuance of notice on the respondents.

JUDGE

Comparing Assistant