Gauhati High Court
Abdul Motleb vs The State Of Assam And Anr on 8 February, 2023
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GAHC010020412023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
I.A.(Crl.)/82/2023
ABDUL MOTLEB
S/O MD. HAJARAT ALI
VILL.- DAPARKAVITHA
P.S.- LAKHIPUR
DIST.- GOALPARA
T/ADD- C/O- HAIDAR ALI SARUMOTORIYA
P.S.- DISPUR.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P.
2:REZA BORHANI
S/O FEREIDON BORHANI
R/O HOUSE NO. 8
1ST BYELANE
MUZZAFIRKHAN ROAD
ULUBARI
P.S.- PALTANBAZAR
KAMRUP (M)
GUWAHATI.
------------
Advocate for : MR. A K BHUYAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
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BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 08-02-2023
1. Heard Mr. A.K. Bhuyan, learned counsel for the applicant Abdul Motleb who
has filed an application under Section 389 Cr.P.C. with prayer for suspension of the
sentence of the Judgment & Order dated 17.01.2023 convicting and sentencing the
applicant under Section 10 of the POSCO Act to undergo imprisonment for 5 years and
pay a fine of Rs. 5,000/- with default stipulation.
2. Heard Mr. B.B. Gogoi, learned Addl. P.P. for respondent No. 1.
3. I have considered the submissions at the Bar. The Judgment and Order dated
17.01.2023 in Special Sessions (POSCO) Case No. 40/2021 is impugned on the ground
that no reasons were recorded while the applicant was not allowed the benefit of
probation of Offenders Act.
4. It is submitted that the applicant is a permanent resident of Lakhipur, Goalpara
and there is no chance of him evading arrest or absconding. The petitioner is the sole
bread winner of the family.
5. The learned Addl. P.P has raised objection stating that the judgment was
judicially passed by the Trial Court.
6. I have perused the copy of the judgment and order dated 17.01.2023 in Sessions
Case No. 40/2021. It is submitted by the learned Addl. P.P. that the victim's evidence
clearly reflects that the applicant deserves the punishment imposed upon him. Trial
commenced on 21.02.2022 and charges were framed against the applicant. The copy
of the Order dated 17.01.2023 in connection with Sessions Special Case No. 40/2021
annexed along with the application clearly depicts that the applicant was on bail and
he was taken into custody on 17.01.2023, after he was found guilty of the offence
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alleged against him.
7. The learned counsel for the applicant has also relied on the decision of the
Hon'ble Supreme Court in Jagjeet Singh and Others v. Ashish Mishra v. Monu and
Another 2022 SCC Online 453 wherein it has been observed that -
"24. A 'victim' within the meaning of Cr.PC cannot be asked to await
the commencement of trial for asserting his/her right to participate in the
proceedings. He/she has a legally vested right to be heard at every step
post the occurrence of an offence. Such a 'victim' has unbridled
participatory rights from the stage of investigation till the culmination of
the proceedings in an appeal or revision. We may hasten to clarify that
'victim' and 'complainant/informant' are two distinct connotations in
criminal jurisprudence. It is not always necessary that the
complainant/informant is also a 'victim', for even a stranger to the act of
crime can be an 'informant', and similarly, a 'victim' need not be the
complainant or informant of a felony."
8. On the submission of the learned counsel for the applicant and relying on the
decision of the Hon'ble Supreme Court in Jagjeet Singh's case (supra) the respondent
No. 2 was not heard while considering the application for suspension of sentence and
prayer for bail.
9. Reverting back to this case, it is held that I have perused the judgment and
order impugned by the applicant. I have also perused the copies of the evidence of
the prosecution witnesses PW-1, PW-2, PW-3 and PW-4. At this stage, I would not like
to discuss the merits of the case. Delving into the evidence and discussing the merits
of this case would be like disposing of the connected appeal altogether. After
scrutinising the documents annexed along with the application, at this stage I am not
inclined to allow the petition under Section 389 Cr.PC with prayer for bail and
suspension of sentence. The appeal will be registered for early hearing as the
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applicant is behind bars.
This matter is closed.
JUDGE
Comparing Assistant
