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2017 Supreme(Gau) 1067
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HITESH KUMAR SARMA, J.
Sri Rajen Gohain Son of Lt. Shambhu Nath Gohain – Petitioner
Vs.
Rakibul Hussain S/O Lt. Nurul Hussain and Ors. - Opposite Parties
Criminal Revision Petition 334 of 2017
Decided On : 24-10-2017
For the Petitioner: Mr. Z. Kamar
For the Opposite Parties : Mr. A.M. Bora,
Headnote:
Indian Penal Code, 1860 – Section 499, 500, 501, 34 and 35 –Criminal Procedure Code, 1973 – Section 401, 397, 315, 254 and 319 – Accused – Court rejected petition – Learned trial Court, after recording the statement of complainant took cognizance against all accused impleaded in complaint petition and issued processes against them process, however, could not be served upon accused – Correspondent from order passed in aforementioned case, reveals that learned trial Court stopped proceedings against accused as his identity particulars were not furnished by complainant so as to secure his presence in Court – Held, Moment order was passed, stopping all proceedings against accused he ceased to be an accused in this case. Hence, even if it is assumed that Sri Surya Borah is infact the accused No. 5 of case, his examination as defence witness, by accused will be in nature of examining a person as defence witness other than an accused keeping proceedings against him was stopped as indicated qualifications attached to examination of an accused as defence witness will not be applicable to Sri Surya Borah other hand, assuming that no order in the nature of order had been passed then too there would be no bar in examining Sri Surya Borah as defence witnesses condition would be that he could not have been examined on oath and secondly he could not have been examined as defence witness without a prayer from him in person – Appeal dismissed.
1. This Criminal Revision, under Section 401/397 of Code of Criminal Procedure (CrPC), has been preferred by Sri Rajen Gohain who has been arraigned as accused No. 7 in CR Case No. 3242/2014, pending in the Court of Sri S.K. Das, Judicial Magistrate 1st Class, Kamrup (Metro), Guwahati, challenging the order dated 13.07.2017 passed in the afore-noted case.
2. I propose to dispose of this revision petition at the motion stage itself after hearing Mr. Z. Kamar, the learned Senior Counsel assisted by Mr. T.N. Das for the petitioner and Mr. A.M. Bora, the learned Senior Counsel for the respondent No. 1.
3. The facts of the complaint case need not be set out in details but suffice it would be to point that that a complaint case for the offences under Section 499/500/501/34/35 of Indian Penal Code (IPC) was filed by the respondent No. 1, as complainant, against the petitioner and few others. The learned trial Court, after recording the statement of the complainant, took cognizance against all the accused impleaded in the complaint petition and issued processes against them. The process, however, could not be served upon the accused No. 5, who was named as “The Correspondent from Sonari, ASOMIYA PRATIDIN”. The order dated 02.06.2016, passed in the aforementioned case, reveals that the learned trial Court stopped the proceedings against the accused No. 5 as his identity particulars were not furnished by the complainant so as to secure his presence in the Court.
4. After the proceedings were stopped against accused No. 5, offences were explained to the remaining accused persons and the case was set for trial. The complainant adduced his evidence. At the closure of prosecution evidence, the accused persons were examined, as required under Section 313 CrPC. The accused 1, 2, 3, 4 & 6 expressed their desire to adduce defence evidence and accordingly the case was set for defence evidence. The accused 1, 2, 3, 4 & 6 proposed to examine one Sri Surya Borah, Sonari Correspondent of Asomiya Pratidin newspaper which was objected to by the petitioner by filing a petition No. 1365/17 on 21.4.17 wherein he stated since the said Correspondent has already been arraigned as accused he cannot be examined as witnesses. It was, therefore, prayed by the petitioner that the Court be pleased not to record the evidence of Sri Surya Borah.
5. The learned trial Court disposed of the petition No. 1365/17 by its order dated 18.05.2017 observing that cognizance was taken against Correspondent of Sonari of Asomiya Pratidin and not against any person and that the Court is not clear who the person was. On these premises the learned trial Court rejected the petition No. 1365/17 and posted the case for defence evidence.
6. As proceedings of the case progressed further, the learned trial Court examined Sri Surya Borah on 09.06.2017 as defence witness who identified himself as local Correspondent of Asomiya Pratidin, Sonari. The petitioner, then filed a petition No. 4045 on 09.06.2017 urging the Court to ascertain the identity of the accused No. 5, Sonari Correspondent of Asomiya Pratidin newspaper. The learned trial Court, by its order dated 13.07.2017, disposed of the petition No. 4045 dated 09.06.2017 holding that since no offence has been made out against accused No. 5 he could not be impleaded as accused by invoking powers under Section 319 CrPC. The petition No. 4045 was, thus, rejected and the case was posted for cross examination of defence witness.
7. It is against the order dated 13.07.2017 the petitioner has approached this Court.
8. Mr. Kamar, the learned Senior Counsel appearing for the petitioner, submitted that the learned trial Court erroneously invoked the provisions under Section 319 CrPC which was not the subject matter of the petition. It is also submitted that the learned trial Court failed to appreciate the fact that once it is established that the accused No. 5 is none but Sri Surya Borah, the Sonari local Correspondent of Asomiya Pratidin the lea
