Abdul Sukur vs The State Of Assam And 2 Ors
2023 Latest Caselaw 1857 Gua

                                                              Page No.# 1/8

GAHC010144332021




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

                               Case No. : Crl.Pet./509/2021

            ABDUL SUKUR
            S/O LATE FAIZUL HAQUE
            R/O VILL- OKSEK GAON
            P.O. BARBALI
            P.S. MURAJHAR
            DIST. HOJAI, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 2 ORS.
            REP. BY THE PP, ASSAM

            2:THE INVESTIGATING OFFICER
             MURAJHAR P.S.
            DIST. HOJAI
            ASSAM
            PIN-782445

            3:NAZMA BEGUM
             W/OLT. ABDUL BASIT
            R/O OKSEK GAON
            P.S. MURAJHAR
            DIST. HOJAI
            ASSAM
             PIN-78244

Advocate for the Petitioner   : MR F K R AHMED

Advocate for the Respondent : MR. B SHARMA(ADDL.PP, ASSAM)
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                                 BEFORE
              HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                         JUDGMENT

Date : 10-05-2023

1. Heard Mr. F.K.R. Ahmed, learned counsel for the petitioner. Also heard Mr. B.

Sharma, learned Addl. P.P. for the respondent Nos. 1 and 2 (State) and Mr. S.Y. Ahmed,

learned counsel for respondent No. 3.

2. The petitioner Abdul Sukur has filed an application under Section 482 of the Code of

Criminal Procedure, 1973 (Cr.PC for short) read with Section 397 Cr.PC for quashing the

impugned order dated 11.08.2021 passed in Case No. PRC 1109(H)/2021 arising out of

Murajhar P.S. Case No. 223/2021 passed by the learned Chief Judicial Magistrate (CJM for

short) Sankardev Nagar, Hojai and for quashing and setting aside the Charge Sheet No.

238(A)/2021 dated 18.08.2021 forwarding seven (7) accused under Sections 147/302/325 of

the Indian Penal Code (IPC for short).

3. The FIR unfolds that Saifuddin and Kala Miya indulged in eve teasing and the victim

was 'X'. The informant 'Y' was the aunt of the victim. When the victim informed the informant

of being harassed by Saifuddin and Kala Miya, the informant's husband took the victim 'X' to

the house of Saifuddin and Kala Miya and there was a discussion between the guardians but

the youths Saifuddin and Kala Miya denied of having harassed the victim 'X'. A fight broke out

between both the sides and Abdul Wahid, Abdul Sohid and Mustafa Ahmed who were also a

part of the group assaulted the informant's husband with a wooden plank. Thereafter the

other accused named in the FIR joined in. The informant's young child and nephew tried to

save her husband but unfortunately her husband succumbed to his injuries. The victim's Page No.# 3/8

husband who died in the incident was Abdul Basit.

4. It is submitted on behalf of the petitioner that he is an indigenous person Below the

Poverty Line (BPL). He was not involved in the incident. He was a passerby but unfortunately

his name was mentioned in the FIR. When charge-sheet was laid, he was exonerated of the

charges but vide the order dated 11.08.2001, the CJM of Hojai, Sankardev Nagar by

exercising his power beyond jurisdiction, compelled the Investigating Officer (IO for short) to

file additional charge-sheet involving the petitioner. Vide charge-sheet No. 238/2021 dated

31.07.2021, the petitioner was exonerated of all the charges as the IO could not garner any

incriminating materials against the petitioner. The additional charge-sheet is Charge Sheet No.

238(A)/2021 drawn on 18.08.2021 by the IO under compelling circumstances. It is submitted

that the order dated 11.08.2021 is not sustainable in law, as it was passed by inflagrant

transgression of sub-section (8) of Section 173 Cr.PC.

5. It is also submitted that the respondent No. 2 who conducted the investigation

submitted the former charge-sheet No. 238/2021 sending the accused for trial, but seven (7)

accused which also includes the petitioner were not sent up for trial as they have not been

implicated by the eye-witnesses whose statements were recorded under Sections 161/164

Cr.PC. The respondent No. 3 through the Additional Public Prosecutor filed a petition being

petition No. 1527/2021 on 05.08.2021 under Sections 173(8) of the Cr.PC seeking further

investigation of the case on the ground that some material eye-witnesses were not cited as

witnesses when the formal charge-sheet was submitted. A photocopy of the petition is

marked as Annexure-D. Vide order dated 09.08.2021, the CJM directed the Superintendent of

Police (SP), Hojai to furnish a report with regard to the case and posted the petition for

hearing and order on 11.08.2021. Pursuant to the order dated 09.08.2021, the respondent Page No.# 4/8

No. 2 prepared a report relating to Murajhar P.S. Case No. 223/2021 and submitted the same

through the SP, Hojai before the court of the learned CJM. A photocopy of the report is

appended along with the petition and is marked as Annexure-F. It is submitted that the three

(3) witnesses namely, Musstt. Hasina Begum, Md. Burhanuddin, Md. Kutubuddin have

mentioned the names of nine (9) accused persons who were sent up for trial but they have

not at all incriminated the petitioner. Despite such report by the IO, the learned courts

without considering the report, passed the impugned order dated 11.08.2021. It is submitted

that the respondent No. 2 i.e. the IO was compelled to file a petition on 11.08.2021 before

the Court seeking further investigation. It is submitted that after filing the said petition under

compelling circumstances by respondent No. 2, the learned Court below passed the

impugned order dated 11.08.2021 granting leave to respondent No. 2 for further investigation

of the case and directed him to submit additional charge-sheet within a week on or before

18.08.2021.

6. This compelled the respondent No. 2 to submit the Additional Charge Sheet No.

238(A)/2021 dated 18.08.2021, forwarding the seven (7) accused including the petitioner,

who were earlier exonerated from all charges.

7. Vide orders dated 18.08.2021 and 19.08.2021 non-bailable warrant was issued against

the petitioner and the other accused.

8. Per contra the learned Addl. P.P. for respondent Nos. 1 and 2 and the learned counsel

for respondent No. 3 have submitted that there is no bar for further investigation under

Section 173(8) of the Cr.PC. The petitioner was named in the FIR and charge-sheet has been

laid against him in connection with a serious offence where a human being was eliminated.

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Here the petitioner was not forwarded for trial. The informant filed an application as she was

aggrieved by the earlier charge-sheet No. 238/2021 dated 31.07.2021.

9. I have carefully perused the scanned copy of the LCR and the documents annexed with

the petition. Annexure-D is the petition dated 09.08.2021 filed by the informant. The

informant was aggrieved as the petitioner along with seven (7) accused were being

exonerated by the IO and the informant through her petition has prayed for further

investigation as the present petitioner was not sent up for trial. Vide order dated 09.08.2021,

the learned CJM fixed a date for hearing the petition No. 1527/2021 (Annexure-D). Annexure-

F is the factual report which clearly reveals that the witnesses Musstt. Hasina Begum, Md.

Burhanuddin, Md. Kutubuddin have not mentioned the names of the petitioner and other

seven (7) accused who were not sent up for trial and so charge-sheet No. 238/2021 dated

31.07.2021 was submitted against nine (9) accused-persons who are enlisted in the charge-

sheet. On the same date the IO has filed an application dated 11.08.2021 marked as

Annexure-G with prayer for further investigation as subsequent to filing of the earlier charge-

sheet No. 238 dated 31.07.2021, some material facts relevant to the instant case has

emerged necessitating further investigation. Vide order dated 11.08.2021 the petition No.

1527/2021 filed by the informant through the learned Addl. P.P. was allowed. The order of the

learned CJM is reproduced herein below verbatim:-

"Heard both the sides in respect to the petition No. 1527/2021 filed by learned Additional P.P.

It is submitted by the IO of the case that, subsequent to the filing of chargesheet, some material fact relating to the case has indeed come up which necessitate further investigation and filing of additional chargesheet and accordingly prayed for according a leave to further investigate into the case and submit additional chargesheet.

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Perused the case record.

Considering the matter in entirety, the prayer of I/O is allowed with a direction to complete the investigation and submit report within one week from today.

Fix: 18.08.2021 for report."

10. Thereafter the charge-sheet refuted by the petitioner was laid. It is averred by the

petitioner that it is well settled that when a power under sub-section (8) of Section 173 Cr.PC

is exercised the Court ordinarily should not interfere with the statutory powers of the

Investigating Agencies. The Court cannot issue direction to investigate the case from a

particular angle. The report submitted by the respondent No. 2 that the eye-witnesses have

not incriminated the petitioner was ignored by the Court. The Court also compelled the

respondent No. 2 to file application for seeking further investigation which resulted in the

subsequent and supplementary charge-sheet.

11. On the contrary, the learned counsel for the respondents have laid stress in their

argument that it is presumed by the petitioner that the respondent No. 2 was compelled to

file the petition, marked as Annexure-G with prayer for further investigation. The petition was

moved by the IO on his own volition without pressure from any quarter.

12. The Section 173(8) reads as follows:

"Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."

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13. In the instant case the order dated 11.08.2021 was passed by the learned CJM when

the IO submitted the application marked as Annexure-G. The order clearly reflects that the IO

of the case has submitted that subsequent to the filing of charge-sheet, some material facts

relating to the case has emerged necessitating further investigation and filing of additional

charge-sheet and thereafter the prayer of the IO was allowed. Leave was accorded to the IO

for further investigation of the case and submission of additional charge-sheet. The petition

No. 1527/2021 was heard but the order does not reflect that this petition filed by the

informant was allowed. The order clearly reflects that the prayer of the IO was allowed and

the IO was given a direction to complete an investigation and submit a report within 1 week

from 11.08.2021. Thus it cannot be held that the investigation was directed by the learned

CJM from a particular angle. It is thereby held that the Magistrate had not transgressed and

acted beyond jurisdiction. The orders were passed within the realm of Section 173 (8) Cr.PC

and the charge-sheet was also laid as per law. Moreover the accused was named in the FIR

and he is alleged of having lynched a man to death.

14. It has been held by the Hon'ble Supreme Court in State Through Central Bureau of

Investigation v. Hemendhra Reddy and Another, 2023 SCC Online SC 515 that -

"We may summarise our final conclusion as under:

(i) Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the Cr.PC after the final report submitted under Section 173(2) of the Cr.PC has been accepted.

(ii) Prior to carrying out further investigation under Section 173 (8) of the Cr.PC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed.

(iii) Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, Page No.# 8/8

therefore, not be applicable for further investigation .

(iv) There is nothing in the Cr.PC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the Cr.PC."

15. I have scrutinized the scanned copies of the LCR of this case at hand. The statements

of witnesses under Section 161 Cr.P.C. are not brought to the fore. This is a case of serious

nature. Charge-sheet has been laid against the petitioner under Sections 147/302/325 IPC. At

this preliminary stage, the charge-sheet cannot be questioned. Charge-sheet was laid against

the petitioner after a thorough investigation. The petitioner is also named in the FIR. The

inherent power under Section 482 Cr.PC has to be used in rarest of rare cases and in such

cases where the FIRs appear to be so absurd or inherently improbable. No malafide is

discernable in the impugned order. The informant has lost her husband and she has indeed

named the petitioner in the FIR. I am hesitant to quash the order dated 11.08.2021 and the

charge-sheet No. 238(A)/2021 dated 18.08.2021.

16. Petition is rejected.

17. No order as to costs.

JUDGE

Comparing Assistant