Page No.# 1/ vs The State Of Assam
2025 Latest Caselaw 305 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam on 8 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                        Page No.# 1/10

GAHC010005802020




                                                                  2025:GAU-AS:5648

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

                                Case No. : Crl.Pet./21/2020

            MOKBUL HOSSAIN AND ANR.
            S/O ZAKARIA HOSSAIN, R/O VILL-BOCHAIMARI, P.O.-AIRKATA, P.S.-
            FAKIRGANJ, DIST-DHUBRI, ASSAM

            2: ABDUS SAMAD AHMED
             S/O LATE JAHANUDDIN SK
             R/O VILL-TENGRABHITA
             P.O.-TULSHIBIL
             P.S.-GOSSAIGAON
             DIST-KOKRAJHAR
             BTC
            ASSA

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR Z KAMAR, MR. A A R KARIM,MR. R R KAUSHIK

Advocate for the Respondent : PP, ASSAM,

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:: PRESENT ::

HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Petitioner : Mr. Z. Kamar, Senior Advocate assisted by Mr. P.D. Choudhury, Advocate.

                    For the Respondent:          Ms. H.S. Bora,
                                                 Addl. P.P. Assam.

                    Date of Hearing  :           03.04.2025.
                    Date of Judgment :           08.05.2025.


                            JUDGMENT AND ORDER (CAV)

Heard Mr. Z. Kamar, the learned senior counsel assisted by Mr. P.D. Choudhury, the counsel appearing for the petitioners. Also heard Ms. H.S. Bora, the learned Addl. Public Prosecutor, Assam.

2. This is an application under Section 482 of the Criminal Procedure Code praying for quashing the proceedings of C.R. Case No.664/2019 pending in the court of the learned Chief Judicial Magistrate, Kokrajhar.

3. Both the petitioners are practicing advocates and members of Gossaigaon Bar Association. On 28.06.2016, Smti. Muslima Bibi had lodged a Complaint Petition under Section 200 of the CrPC in the court of the learned Sub-Divisional Judicial Magistrate, Gossaigaon.

4. In the said complaint, it was alleged that few months ago, Mokbul Hossain along with Md. Shomser Ali, Buttu Sk. and Jomser Ali had assaulted Abed Ali on the ground that he was maintaining relationship with a girl of the village. Abed Ali sustained serious injuries.

5. After that incident, Mokbul Hossain along with Md. Shomser Ali, Buttu Sk. and Page No.# 3/10

Jomser Ali had tried to persuade the complainant Muslima Bibi to give false evidence in their favour. She declined the said proposal. Therefore, those persons had tortured her and also threatened her with dire consequences. They also threatened to kidnap her.

6. The complainant informed the Village Goanburah as well as her family members. On 24.06.2016 at about 6.30 P.M., when the complainant was coming home from local market, those persons allegedly threw filthy languages at her. When she protested, Mokbul along with the aforesaid persons forcibly put her in a vehicle and tried to undress her. The complainant managed to run away.

7. Again, on 26.06.2016 at about 5 P.M., Mokbul along with the aforementioned associates trespassed into the house of the complainant and asked her to leave the village within next two days. Mokbul and his associates even threatened the daughter of the complainant by stating that they will kidnap her and shall be released only if her mother testifies in their favour.

8. It is alleged in the complaint that the aforementioned Buttu Sk. had even touched the breasts of the daughter of the complainant.

9. When the complainant raised hue and cry over the said incident, Mokbul and his associates ran away from her house.

10. On receipt of the said complaint, the learned Sub-Divisional Judicial Magistrate, Gossaigaon had registered the same as C.R. Case No.37/2016 and under the provisions of Section 156(3) of the CrPC, forwarded the complaint to Gossaigaon Police Station. Accordingly, the Gossaigaon P.S. Case No.334/2016 came into being. On conclusion of investigation, police filed the charge sheet against Md. Shomser Ali and three other persons. Accordingly, G.R. Case No.387/2016 came into being before the court of the Sub-Divisional Judicial Magistrate (M), Gossaigaon.

11. On 28.06.2016, the petitioner Md. Mokbul Hossain filed Vakalatnama representing the complainant.

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12. After that, on 17.06.2017, Shri Zakir, who is an advocate's clerk of Gossaigaon Sub-Divisional Judicial Magistrate Court, Gossaigaon, accompanied by the accused Md. Shomser Ali, had approached the petitioner Md. Mokbul Hossain and requested him to represent the said accused in the aforementioned G.R. Case No.387/2016 (C.R. Case No.37/2016).

13. The petitioner Md. Mokbul Hossain has stated that after 28.06.2016, on which date he had filed his Vakalatnama representing the complainant, with the passage of one year, he forgot the said fact. So, when the advocate's clerk requested him to represent Md. Shomser Ali, he agreed and typed the Vakalatnama on behalf of Md. Shomser Ali.

14. Thereafter, the petitioner Md. Mokbul Hossain realised that it was a mistake because he was still representing the complainant in the said case. Therefore, he immediately struck off his name from the Vakalatnama that was filed on behalf of Md. Shomser Ali.

15. Thereafter, Md. Shomser Ali approached the other petitioner Shri Abdus Samad Ahmed and requested him to be his lawyer in the aforesaid case. Shri Abdus Samad Ahmed had agreed.

16. The case was listed before the court of the learned Sub-Divisional Magistrate on 28.07.2017. On that day, when Md. Mokbul Hossain was working in his chamber at Gossaigaon Bar Association, the aforesaid advocate's clerk brought some petitions to be field with his signatures. Among the bunch of petitions brought by the advocate's clerk, there was a particular petition that was to be filed in G.R. Case No.387/2016. The aforesaid petition was filed by one of the accused of G.R. Case No.387/2016.

17. The said advocate's clerk was not aware of the fact that Md. Mokbul Hossain had struck off his name from the Vakalatnama and the petitioner Shri Abdus Samad Ahmed was representing the accused in that case. Therefore, he brought the bunch of petitions to the petitioner Mokbul Hussain for his signature and Md. Mokbul Hossain Page No.# 5/10

without properly going through each of the petitions, had put his signatures.

18. The said matter came to the notice of the Sub-Divisional Judicial Magistrate, Gossaigaon and he reported to the Chief Judicial Magistrate, Kokrajhar. The learned Chief Judicial Magistrate directed registration of a case under Section 466 of the IPC. On 28.08/2019, the leaned Chief Judicial Magistrate, Kokrajhar took cognizance under Section 466 of the IPC against the present petitioners.

19. Hence, this petition has been filed challenging the said order. The primary ground taken is that it was an inadvertent mistake committed by Md. Mokbul Hossain. The petitioner Shri Abdus Samad Ahmed has claimed that he is legally entitled to represent Md. Shomser Ali. According to this petitioner, he has nothing to do with the acts of Md. Mokbul Hossain.

20. I have considered the submissions made by the learned counsel of both sides.

21. At this stage, a brief visit to the definition of offence of forgery as provided by Section 463 of the Indian Penal Code is required. This section reads as under:

Forgery: [Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

22. In Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751, the second respondent herein filed a complaint against Appellants 1 to 3 (Accused 1 to 3) and two others before the Chief Judicial Magistrate, alleging that he was the owner of Katha No. 715, Khasra Nos. 1971 and 1973 admeasuring 1 bigha, 5 kathas and 18 dhurs; that the first accused who had no connection with the said land and who had no title thereto, had executed two registered sale deeds dated 2-6-2003 in favour of the second accused in respect of a portion of the said land measuring 8 kathas and 13 dhurs; and that the third, fourth and fifth accused being the witness, scribe and stamp vendor Page No.# 6/10

respectively in regard to the sale deeds had conspired with Accused 1 and 2 to forge the said documents; and that when he confronted Accused 1 and 2 about the said forgery, they abused him and hit him with fists and told him that he can do what he wanted, but they will get possession of the land on the basis of the said documents.

22.1. The learned Magistrate by order dated 19-7-2003 took cognizance of the offences under Sections 323, 341, 420, 467, 471 and 504 of the Penal Code, 1860 (for short "the Code") and referred the complaint for investigation under Section 156(3) of the Code of Criminal Procedure (for short "CrPC"). On the basis thereof a first information report was registered on 10-10-2003 with Pandaul Police Station. After investigation, a charge sheet came to be filed on 4-9-2004.

23. Under the said facts, the Supreme Court has held as under-

"14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:

1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of

(a) unsoundness of mind; or ( b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.

In short, a person is said to have made a "false document", if ( i) he made or executed a document claiming to be someone else or authorised by someone else; or ( ii) he altered or tampered a document; or ( iii) he obtained a document by practising deception, or from a person not in control of his senses.

15. The sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of "false documents". It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the first accused in execution and registration of the said sale deeds) would bring the case under the first category.

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16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.

17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."

24. In Jibrial Diwan v. State of Maharashtra, (1997) 6 SCC 499, Shri Azhar Hussain, PW 2 was a Minister at the relevant time in the State of Maharashtra. He had planned a cultural show whereat some artistes were invited. The case of the prosecution is that two letters Exh. 28 and Exh. 29 were prepared on the letterhead of the Minister, whereupon invitations were written to invite Raja Murad and Javed Khan, PWs. These letters were allegedly forged for these did not bear the signature of the Minister. The show was held on the day scheduled. The invitees came on the basis of those forged letters. Later, a controversy was raised. The matter was investigated by the CBI. Charges were laid against the appellant as also one Patel, Accused 2. The second accused stands acquitted by the trial court. His acquittal has been maintained by the High Court. The allegation against the acquitted accused was that he had forged those letters. That part of the prosecution case on account of the acquittal of the second accused has become sealed. The role of the appellant was that he had delivered those two forged letters to the recipients. For that act, even though he was acquitted by the trial court, the High Court has convicted him for offence under Section 417, Section Page No.# 8/10

471 read with Section 465 IPC and awarded him sentences as disclosed in the judgment under appeal."

25. Under the said factual matrix, the Supreme Court has held as under-

"3. It bears repetition that the appellant was not the forger of those documents. Section 471 enjoins that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 465 provides that whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Now the words "dishonestly" and "fraudulently" have been defined respectively in Sections 24 and 25 of the Penal Code, 1860. "Dishonestly" has been defined to mean that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The word "fraudulently" has been defined to mean that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. This Court in S. Dutt (Dr) v. State of U.P. [AIR 1966 SC 523 : (1966) 1 SCR 493] has explained the words "intent to defraud" as being not synonymous with the words "intent to deceive".

It requires some action resulting in a disadvantage which but for the deception the person defrauded would have avoided. Here by the delivery of forged letters, there is neither any wrongful gain to anyone nor any wrongful loss to another. The act of the appellant could not thus be termed to have been done dishonestly. Likewise the appellant cannot be said to have any intention to defraud because his action resulted in no disadvantage to anyone which but for the deception the person defrauded would have acted otherwise. The basic ingredients of the act done "dishonestly" or "fraudulently" being missing, the charge under Section 471 read with Section 465 IPC was totally misplaced and the High Court fell into an error in convicting the appellant on those charges."

26. In the case in hand, Md. Mokbul Hossain allegedly appeared in the court for the complainant as well as the accused. This is an unethical practice. He has claimed that with the passage of time he forgot that he once agreed to be the lawyer of the complainant and accordingly he agreed to be the lawyer of the accused. This Court is of the opinion that such a mistake could be done by a busy lawyer. Md. Mokbul Hossain admitted that when he remembered that he once represented the complainant, he had already struck off his name from the Vakalatnama representing the accused.

27. The petitioner Sri Abdul Samad Ahmed had submitted that he agreed to be the Page No.# 9/10

lawyer of the accused and he had nothing to do with the faux pas committed by the other petitioner Mokbul Hossain.

28. Regarding the allegation under Section 466 of the Indian Penal Code, this Court is of the opinion that the act of Sri Mokbul Hossain does not amount to forgery of record of court. He had earlier appeared for the complainant and mistakenly again appeared for the accused in the same case. The definition of Section 463 of the IPC makes it clear that the elements of forgery includes the making of a false document and part of it and such making should be with such intention to cause damage or infringe to the public or to any other person or to support any claim or title or to cause any person to part with property or to cause any person to enter into an express or implied contract or to commit fraud or that fraud may be committed.

29. The guidelines for consideration of a petition under Section 482 of the CrPC has been laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal , AIR 1992 SC 604. Paragraph 102 of the judgment reads as under:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but Page No.# 10/10

constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

30. Coming back to the case in hand, this Court is of the opinion that there are no elements of a prima facie case under Section 466 of the Indian Penal Code against the present petitioners. There is no possibility of conviction under Section 466 of the Indian Penal Code. Therefore, allowing the criminal proceedings to continue against the present petitioners would be nothing but an abuse of the process of the court.

31. This is a fit case for exercising power under Section 482 of the CrPC. Accordingly, the criminal petition is allowed.

32. The proceedings of C.R. Case No.664/2019 pending in the court of the learned Chief Judicial Magistrate, Kokrajhar, is quashed and set aside.

The Criminal Petition is disposed of.

JUDGE

Comparing Assistant