Crl.Pet./487/2020
2025 Latest Caselaw 4487 Gua

Gauhati High Court

Crl.Pet./487/2020 on 26 March, 2025

    GAHC010136642020




                                                2025:GAU-AS:3725


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



                CRIMINAL PETITION NO.487/2020

                                  Sri Kamakhya Misra
                                  Son of Late Chandra
                                  Bhushan Misra,
                                  Resident of Manipuri
                                  East Road, Paltan
                                  Bazar, P.O.- Rehabari,
                                  P.S.- Paltan Bazar,
                                  Guwahati - 781008,
                                  Assam.


                                                .......Petitioner

                                     -Versus-

                                 The State of Assam.
                                 Represented by Public
                                 Prosecutor, Assam.

                                              .......Respondent



                          -BEFORE-

        HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

  For the Petitioner(s)   : Mr. A.M.Bora, learned Senior Counsel
                           assisted by Mr. V.A. Chowdhury.
 For the Respondent(s)    : Ms. S.H. Bora, Additional Public
                            Prosecutor for the State respondent.


                                                     Page 1 of 7
 Date of Hearing        : 26.03.2025.

Date of Judgment       : 26.03.2025.




             JUDGMENT & ORDER (ORAL)

Heard Mr. A.M. Bora, learned Senior Counsel assisted by Mr. V.A. Chowdhury, learned counsel for the petitioner. Also heard Ms. S.H. Bora, learned Additional Public Prosecutor appearing for the State respondent.

2. By way of this petition under Section 482 read with section 401 of Cr.P.C, 1973, the petitioner is seeking quashing of the order dated 26.12.2019 and proceedings of Complainant Case No.5078/2019 pending in the Court of learned Chief judicial Magistrate, Kamrup (M) at Guwahati.

3. The brief facts of the case is that on 26.12.2019, one Amaranda Hazarika, Assam Judicial Service (AJS) lodged a complaint case before the Court of Chief Judicial Magistrate, Kamrup (M) alleging, inter-alia, that on 26.12.2019 at about 11:00 A.M,, the petitioner on appearing before his Court i.e. Judicial Magistrate, 1st class Kamrup (M), Guwahati, on execution of process against him in connection with GR Case No.7434/2011 stated derogatory remarks towards the Court and further stated that the Court committed mistake for which he suffered.

4. Accordingly, Chief Judicial Magistrate, Kamrup (M) by order dated 26.12.2019 took cognizance against the petitioner under Section 228 of IPC. Against the aforesaid

complaint as well as the order dated 26.12.2019 passed by the Court of Chief Judicial Magistrate, Kamrup (M), the present criminal petition has been filed.

5. Mr. A.M. Bora, learned Senior Counsel by referring to the first schedule of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C, 1973), relating to offences under the India Penal Code (hereinafter referred to as IPC), submitted that in connection to section 228 of IPC, it is provided that the Court in which the offence is committed is the Court which will try the said offence.

6. He further submits that the procedure provided under Section 340 of Cr.P.C to try the offences under Section 228 of IPC has not been followed in the instant case. He accordingly submits that the order of the cognizance by the Court of Chief Judicial Magistrate, Kamrup (M) is erroneous in law.

7. Reacting to the aforesaid arguments of the learned Senior Counsel, Ms. S.H. Bora, learned Additional Public Prosecutor appearing for the State respondent fairly submits that since the Court, which took cognizance of the offence under Section 228, admittedly is not the Court in which the offence is alleged to have been committed, the matter can be remitted back to the Court of Chief Judicial Magistrate, Kamrup (M) for passing necessary orders as per the law.

8. I have heard the learned counsel appearing for the parties and have perused the material available on record.

9. Apt to reproduced the complaint:-

"IN THE COURT OF LEARNED C.J.M., KAMRUP (M), GUWAHATI

To,

The Learned C.J.M. Kamrup (M), Guwahati

Subject: A complaint against Mr. Kamakhya Misra, S.I. of Police (Presently working at Sontali O.P. under Boko P.S., Kamrup, Assam) for committing offence under section 228 of IPC.

Respected Sir, With due respect I would like to inform you that the aforesaid person on appearance before this court on this 26th day of December, 2019 at about 11:00 AM, on execution of process against him in connection with G.R. Case No. 7434/2011 started derogatory remarks towards the court. According to him, court commits mistake and they used to suffer for execution of processes. This court was asking the S.I. as to how this court supply the other particulars of the accused namely Md. Hanif Alias per the previous records of the Police in connection with G.R. Case по. 7434 / 2011because it is the Police who investigated the case and it is the Police who collected the details of address of accused during investigation. On such question the S.I. replied that it is not his duty to record every duty of accused on execution of process. Moreover, the S.I. one step further started behaving in tempered manner and started insulting judicial process by saying that this court failed to understand his reports. The behavior and attitude of S.I. is highly

insulting towards the court as well as towards the judiciary. After repeated directions to remain silent he was showing insulting behavior in front of the staffs of this court, Id. APP and some other learned Advocates. Hence, finding no other means this court by calling the P.I., directed the accused to be taken away. The accused probably now in the P.I. office. The said, S.I. with his words, conduct and behavior has clearly committed an offence against the administration of justice.

Sir, in the facts and circumstances, as stated above I hereby request you to register this complaint as a complaint case and to proceed with the case according to law. The staffs of this court namely, Bhrigu Borthakur, Bhairab Kalita, Diganta Rabha, Amulya Rabha, Manab Sharma, learned APP Mr. Diganta Das, learned advocates Samsul Haque, S/o Lt. Jayuddin Ahmed, R/o H/по. 10, Soap Factory Road, Gandhi Basti, Ghy - 3 and other advocates present before the court at the time of incident.

Annexure:

1. A Xerox copy of report given by police in summons issued by this court in connection with G.R. Case No. 7434/11 and

2. A Xerox copy of report given by police in warrant issued by this court in connection with

Copies of the complaint petition be send to D.G.P., Assam as well as to D.I.G. Administration for information.

Complainant Sd/- Illigible 26.12.2019 Sri A. Hazarika, A.J.S. The Court of J.M.F.C., Kamrup (Metro), Guwahati In the Court of Sri A. Hazarika, A.J.S Judicial Magistrate First Class, Kamrup (Metro), Guwahati, Assam."

10. It appears that after going through the material available in the complaint, the Court of Chief Judicial Magistrate, Kamrup (M) took cognizance under Section 228 of IPC against the petitioner.

11. Apt to refer the relevant portion of the Cr.P.C, 1973 is reproduced hereunder for ready reference:-

THE FIRST SCHEDULE CLASSIFICATION OF OFFENCES I- OFFENCES UNDER THE INDIAN PENAL CODE Section Offnece Punishment Cognizable Bailable By what Court Or non- or non- triable cognizable bailable

228 Intentional Simple non- bailable The Court in insult imprisonment cognizable which the or interrupted to for 6 months, offence is a public servant or committed sitting in any fine of 1,000 subject to stage of a rupees, or the judicial both provisions of proceeding. Chapter XXVI.

12. Apparent reading of the first schedule that it is the Court in which the offence is committed is competent

to try offences under Section 228 of IPC. In the present case, admittedly cognizance has been taken by the Court of Chief Judicial Magistrate, Kamrup (M) and not by the Court of Judicial Magistrate, 1st Class, Kamrup (M), where the offence is alleged to have been committed.

13. That being so, in the interest of justice, this Court is of the considered view, that the petition can be disposed of by setting aside the impugned order of the Court of Chief Judicial Magistrate, Kamrup (M), dated 26.12.2019 and remit the matter to the Court of Chief Judicial Magistrate to do the needful in terms of the first schedule to the Cr.P.C, 1973 and the competent Court thereafter to decide the same a fresh in accordance with the procedure laid down under Section 340 of Cr.P.C. Ordered accordingly.

14. Resultantly, the criminal petition stands disposed of.

15. Send back the case records.

JUDGE

Comparing Assistant