Gauhati High Court
Page No.# 1/12 vs The State Of Assam And Anr on 13 October, 2025
Page No.# 1/12
GAHC010223302025
2025:GAU-AS:13667
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1241/2025
MR JAGADISH MAHATO AND 3 ORS
SON OF LATE RAMLAKHAN MAHATO
RESIDENT OF NALIAPOOL BAZAR NEAR 37 AT ROAD, DIBRUGARH-
786001.
2: MRS TATRI DEVI MAHATO
WIFE OF JAGADISH MAHATO RESIDENT OF NALIAPOOL BAZAR NEAR 37
AT ROAD
DIBRUGARH-786001.
3: MS LAJBONTI DEVI
WIFE OF ANIL MAHATO RESIDENT OF HIJUGURI COLONY
TINSUKIA
NEAR GARGO MOTOR PO TINSUKIA
4: MR ANIL MAHATO
SON OF DINESH PRASAD MAHATO RESIDENT OF HIJUGURI COLONY
TINSUKIA
NEAR GARGO MOTOR
PO TINSUKI
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SMTI PUJA MAHATO
WIFE OF SRI SRIKANTA MAHATO
D/O SRI RAMASISH MAHATO
RESIDENT OF SHILPA SAMATI PARA
PO JALPAIGURI PS KOTALI DISTRICT JALPAIGURI WEST BENGAL
PIN-735101
MOBILE NO. 963587013
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Advocate for the Petitioner : MR SISHIR DUTTA, MS K BORAH,MR S DUTTA,MS S
MOCHAHARI,MR. S DUTTA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
ORDER
13.10.2025
Heard Mr. S. Dutta, learned Senior Counsel assisted by Ms. S. Mochahari,
learned counsel for the petitioners and Mr. B. Sharma, learned Addl. Public
Prosecutor for the State.
2. By this application, the petitioners have challenged the legality and validity of
the Order dated 06.09.2024 passed by the learned Judicial Magistrate First Class,
Diburgarh in PRC Case No. 1015/2023 by which the learned Court allowed the
petition filed by the Public Prosecutor praying for impleading the petitioners as
accused persons in the said proceeding.
3. Mr. S. Dutta, learned Senior Counsel has placed the statements of the
complainant who is the wife of the main accused person and is the daughter-in-law
and sister-in-law of the petitioners. It is stated here that the petitioner Nos. 1 & 2
are the father-in-law and mother-in-law of the complainant and the petitioner No. 3
is the sister-in-law of the complainant and the petitioner No. 4 is the brother-in-law
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of the complainant. The complainant in her statement before the Trial Court
examined as PW-1 had stated the following averments against the petitioners:-
(1) Her sister-in-law i.e., petitioner No. 3 had told her that the complainant will
not receive her husband's love until and unless she gives love to her parents-in-law
i.e., petitioner Nos. 1 & 2.
(2) Her brother-in-law i.e., petitioner No. 4 had prevented her from using her
phone.
(3) Her mother-in-law i.e., petitioner No. 2 found defect in the food she cooked
and that she throws the food away and that the petitioner No. 2 also shouted at
her if she found any defect in cleaning the utensils.
4. The further allegations against the petitioners are that on 11.07.2023, the
parents of the complainant and sister of the complainant came to meet her and
that her parents-in-law i.e., the petitioner Nos. 1 & 2 had quarreled with her
parents. It is also alleged that when the sister of the complainant went to talk with
the husband of the complainant, her phone was snatched away by the petitioner
No. 1 and the same was thrown by him. It is also alleged that her parents-in-law
i.e., the petitioner Nos. 1 & 2 had forced her to put signature on divorce papers
and to leave the house but then it is also stated that she did not sign the papers
and that they asked her to leave the house which she also did not do, along with
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the further statement that her mother-in-law i.e., petitioner No. 2 had assaulted
her. The complainant further stated that when she went to the Police Station, her
husband and the petitioner No. 1 told her that they will not keep her in their
house.
5. It is on the basis of these statements that the learned Court of Judicial
Magistrate First Class, Dibrugarh had added the petitioners as accused persons by
taking recourse to Section 319 of the Cr.PC. The learned Court vide order dated
06.09.2024 had observed that on the basis of the deposition of PW-1, sufficient
incriminating materials against her in-laws namely, Jagadish Mahato (petitioner No.
1), Tatri Devi Mahato (petitioner No. 2), Lajbonti Devi (petitioner No. 3) and Anil
Mahato (petitioner No. 4) were found. It was also observed that the learned Addl.
Public Prosecutor had filed a petition for impleading the said petitioners whose
names were present in the FIR as accused persons. In view of the same, the
learned Trial Court issued summons to the petitioners and fixed date for
appearance. It is this order that the petitioner had challenged before this Court.
6. Mr. S. Dutta, learned Senior Counsel submits that the allegations against the
petitioners in the evidence of PW-1 cannot amount to an offence under Section
498A, IPC inasmuch as, the learned counsel has placed the definition of cruelty
provided under Section 498A IPC which says that cruelty means any wilful conduct
which is of such a nature as is likely to drive the woman to commit suicide or to
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cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman or harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand for any
property. The learned Senior Counsel submits that the statement made by PW-1, if
it is taken in their face value does not have the potentiality to drive the said
prosecution witness to such a situation that she would commit suicide in the facts
of the case.
7. According to the learned Senior Counsel, the allegations against the petitioners
are not serious in nature, which would culminate in any offence, much less Section
498A IPC. As such, he submits that the petitioners could not have been arrayed as
accused persons in the instant case for offence under Section 498A IPC. He further
submits that under Section 319 of the Cr.PC, the Court has to see and find out
more than a prima facie case to be established against the persons who are
arrayed as accused persons. To substantiate his arguments, he placed reliance on
the case of Hardeep Singh Vs. State of Punjab & Ors. reported in (2014) 3 SCC 92
wherein, the Apex Court had observed that power under Section 319 of the Code
of Criminal Procedure in arraying accused is to be exercised sparingly and only in
those cases where the circumstances of the case so warrant. It is also observed
that only where strong and cogent evidence occurs against a person from the
evidence led before the court, such power should be exercised and not in a casual
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and cavalier manner. It was also observed in the said decision by referring to
another judgment of the Apex Court that when there is not even a suspicion of any
act done by the appellant amounting to offence under the POCSO, arraying them
as accused does not arise.
8. In view of the said submissions, the learned Senior Counsel further submits
that there is no prima facie material and much less more than prima facie material
against the petitioners requiring them to be arrayed as accused person under
Section 498A of IPC and as such, the impugned order was bad in law and the same
requires interference by this Court.
9. Mr. B. Sharma, learned Addl. Public Prosecutor however submits that in the
instant case only summons were issued to the petitioners by the said impugned
order and by referring to Sub-section 4 to Section 319 Cr.PC, he submits that the
court while proceeding against any person arrayed as an accused may proceed
afresh, more specifically, the proceedings in respect of such person may be
commenced afresh and the witnesses reheard. He submits that under Section 319
Cr.PC, it is not contemplated that the person to be arrayed as an accused should be
in connection with the offence for which the trial was carried on and it can be with
respect of any other offence and as such, he has objected to the argument made
by the learned Senior Counsel that the petitioners cannot be by any stretch be
connected with the offence under Section 498A, IPC. He placed reliance on the
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judgment of the Apex Court delivered in S. Mohammed Ispahani vs. Yogendra
Chandak and Ors. reported in (2017) 16 SCC 226 as well as Brijendra Singh and
Ors. vs. State of Rajasthan reported in (2017) 7 SCC 706 by which the Hon'ble
Apex Court had observed that the word evidence is to be understood in a wider
sense both in the stage of trial and in the stage of enquiry and also that it is not a
requirement that the evidence put forth by the prosecution witnesses on the basis
of which persons are arrayed as accused may not be relevant to such an extent
that the same would result in conviction.
10. These are the submissions of the learned counsels for the parties.
11. Section 319 of the Cr.PC empowers the Court during the trial of a criminal
case to summon any person not already an accused if evidence adduced before it
indicates that such person has committed an offence for which the accused on trial
can be convicted or in other connected offence which can be tried together along
with the offence for which the accused was tried. The provision aims to ensure that
no guilty person escapes punishment and is guided by the principle that the Court
is not powerless when the prosecution fails to array accused person/culprits.
However, it is also held by the Apex Court that the said power has to be exercised
sparingly and only on proper evidence.
12. In the instant case, it is seen that in the FIR, the petitioners along with the
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husband of the complainant were arrayed as accused persons, however while
submitting the charge sheet, the police had arrayed the husband of the
complainant as the only accused person on the ground that materials were not
found against the rest of the accused persons. During the trial and more
specifically during the deposition of PW-1, it was found that the said witness had
made certain allegations against the petitioners and the allegations are to the
effect that her sister-in-law told her that if she does not express her love and
affection towards her in-laws, she will not get back the required love and affection
from her husband. However, that statement in the considered view of this Court
may not result in any offence much less Section 498A IPC. The further statement
made by PW-1 that her brother-in-law i.e., petitioner No. 4 had prevented her from
using her phone is again not a statement which could have resulted in any criminal
offence in absence of any further statement to the same. Preventing her from
using her phone may not be always by any forceful measure or due to some
taunting tactics. There is a further statement that her mother-in-law i.e., the
petitioner No. 2 finds flaws in her cooking and washing utensils. No further
statement adding to the same are there in her favor bringing into home any
criminality on the part of the petitioner No. 2. Every case needs to be examined in
its facts and circumstances and the prevailing norms in the society. Such
statements to its largest stretch cannot amount to have resulted in any offence
against the complainant. If such statement results in criminal action, no house
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with relatives would survive. Society will fall flat. The further statement that the
parents-in-law of the complainant had quarreled with her relatives is again not
supported by any other evidence on record.
13. It is no res integra that to attract Section 319 of the Cr.PC, more than prima
facie evidence is required which is found lacking in the instant case. There are
further statements that the petitioner Nos. 1 & 2 had forced the complainant to
sign divorce papers but the complainant in the same stretch and same line had
stated that she did not sign the papers and that she had also stated that the
petitioner Nos. 1 & 2 had forced her to leave her matrimonial house but she did
not leave. This statement shows that the word "force" is used without any
substance, only to impute criminality on the petitioners. Further, a bald statement
has been made in the said deposition that the mother-in-law i.e., the petitioner No.
2 had assaulted the complainant. The same is not supported by any other evidence
apart from the said statement. It is also stated that when the complainant went to
the police station, her husband and the petitioner No. 1 had told her that they will
not keep her in their house is again a statement that cannot be considered to be a
fact in the entire scenario of the case. As it is held by the Apex Court that arraying
person as accused person under Section 319 should be sparingly used and only in
case of sufficient evidence which is more than a prima facie evidence which in
other words can be considered, to be more stronger evidence then mere
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probability. The said statement of the complainant is considered not as such strong
evidence to have compelled the Trial Court to exercise power under Section 319 of
the Cr.PC. The Hon'ble Apex Court in Hardeep Singh (supra) had observed in the
following terms:-
"98. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary
power. It is to be exercised sparingly and only in those cases where the
circumstances of the case so warrant. It is not to be exercised because the
Magistrate or the Sessions Judge is of the opinion that some other person may also
be guilty of committing that offence. Only where strong and cogent evidence
occurs against a person from the evidence led before the court that such power
should be exercised and not in a casual and cavalier manner.
99. Thus, we hold that though only a prima facie case is to be established from
the evidence led before the court not necessarily tested on the anvil of Cross-
Examination, it requires much stronger evidence than mere probability of his
complicity. The test that has to be applied is one which is more than prima facie
case as exercised at the time of framing of charge, but short of satisfaction to an
extent that the evidence, if goes unrebutted, would lead to conviction. In the
absence of such satisfaction, the court should refrain from exercising power under
Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if from the
evidence that any person not being the accused has committed any offence : is
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clear from the words with the accused. convicted : . There is, therefore, no scope
for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of
the accused."
14. Further, it is also noticed that petitioners were discharged by the police while
submitting the Charge-Sheet. The Apex Court in Hardeep Singh (supra) had held
as follows:-
"109. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised
against a person not subjected to investigation, or a person placed in the Column 2
of the Charge-Sheet and against whom cognizance had not been taken, or a
person who has been discharged. However, concerning a person who has been
discharged, no proceedings can be commenced against him directly under Section
319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with
Section 398 Cr.P.C.?"
"Question No.V Q.V Does the power under Section 319 Cr.P.C. extend to
persons not named in the FIR or named in the FIR but not charge-sheeted or who
have been discharged? A. A person not named in the FIR or a person though
named in the FIR but has not been charge-sheeted or a person who has been
discharged can be summoned under Section 319 Cr.P.C. provided from the
evidence it appears that such person can be tried along with the accused already
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facing trial. However, in so far as an accused who has been discharged is
concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with
before he can be summoned afresh."
15. Although the petitioners could be arrayed as accused persons, yet in absence
of more than prima facie material, they could not have been arrayed as accused
persons.
16. In view of the discussions made above, this Court deems it fit that the Order
dated 06.09.2024 by which the petitioners were arrayed as accused persons may
be interfered with. Accordingly, this Court quashes the Order dated 06.09.2024 by
which the petitioners were arrayed as accused persons. The Trial Court may
proceed according to law with the said case.
17. Petition is disposed of.
JUDGE
Comparing Assistant
