Back
2019 Supreme(Gau) 122
IN THE HIGH COURT OF GAUHATI (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
M.R.PATHAK, J.
SUBIR KR. DAS S/O- BHUPENDRA DASBIJNI, DISTCHIRANG – Petitioner
VERSUS
THE STATE OF ASSAM AND ANR – Respondent
Crl.Pet. 2 of 2019
Decided On : 04-01-2019
Advocate Appeared:
For the Petitioner: Mr. Abhishek Kundu.
For the Respondents: Mr. R.J. Baruah,
Headnote:
Indian Penal Code, 1860 - Sections 385, 323, 379, 506, 190(1)(b), 173, 366 and 352 – Criminal Penal Code, 1973 - Sections 482, 200, 202 and 190 - Fighting - Loan - According to petitioner in final report pertaining to said PS Case concerned I-O after completion of investigation of said PS Case have already came to conclusion that informant/respondent No-2 took a loan from petitioner to do a business of thermokol dish and that informant repaid certain amount in parts and he is yet to repay complete loan amount - For such non-payment money by informant petitioner was very annoyed with informant and on date of incident on while travelling in his bolero car when he saw informant sitting in Pharmacy near UCO Bank he called informant through his driver and demanded his money and during said process a heated argument between petitioner and informant took place in which there was a push and pull between them and when informant was medically examined no injury were found in his person - Moreover there was no such evidence of snatching from pocket of informant by petitioner – Held, In present case it is seen that police after investigation of case submitted final report in said PS Case and learned SDJM(M) on perusal of said final report as well as materials in case diary and other materials available with it being prima facie satisfied by order dated passed in GR Case took cognizance of offence against petitioner and other accused of case and issued summons to them for their appearance in said GR Case essential ingredients of offence are that accused made a gesture or preparation to use Criminal force - Accused knew that it was likely that such gesture or preparation to use Criminal force would cause apprehension that criminal force would be used by him against victim and there is no grave or sudden provocation from side of victim - Petition stands dismissed.
1. Heard Mr. Abhishek Kundu, learned counsel for the petitioner and Mr. R.J. Baruah, learned Additional Public Prosecutor, Assam for the respondent No. 1, State.
2. Being aggrieved with the action of the learned SDJM (M), Bijni in taking cognizance of the offence under Section 366 of the IPC against the petitioner in GR Case No. 405/18 arising out of Bijni P.S. Case No. 287/18, inspite of submitting of final report by the I.O. of said Bijni P.S. Case No. 287/18 vide FR No. 144/2018 dated 09.09.2018, the petitioner has preferred this criminal petition under Section 482 Cr.P.C. for quashing the proceeding of said G.R. Case No. 405/18, wherein the learned Magistrate has already issued processes against the petitioner for his appearance in the said case.
3. According to the petitioner in the final report dated 09.09.2018 pertaining to said Bijni P.S. Case No. 287/18, the concerned I.O. after completion of the investigation of said Bijni P.S. Case, have already came to the conclusion that the informant/respondent No. 2 took a loan of Rs. 3,00,000/- (Rupees Three Lakhs) from the petitioner to do a business of thermokol dish and that the informant repaid certain amount in parts and he is yet to repay the complete loan amount. For such non-payment money by the informant, the petitioner was very annoyed with the informant and on the date of the incident on 09.09.2018 while travelling in his bolero car, when he saw the informant sitting in Sri Krishna Pharmacy near UCO Bank at Bijni, he called the informant through his driver and demanded his money and during the said process a heated argument between the petitioner and the informant took place, in which there was a push and pull between them and when the informant was medically examined, no injury were found in his person. Moreover, there was no such evidence of snatching of Rs. 1500/- from the pocket of the informant by the petitioner.
4. Considering that the offence under Section 352 IPC being non cognizable offence accordingly, he police filed a final report being FR No. 144/2018 dated 30.09.2018 in the said Bijni P.S. Case No. 87/18 intimating the informant about the same. The FIR filed by the informant/respondent No. 2 pertaining to said Bijni P.S. Case No. 287/18 on 08.09.2018 reveals that the informant/respondent No.2 lodged the same on 09.09.2018 stating that on the evening of 08.09.2018 around 7:30 P.M. when he as sitting in Sri Krishna Pharmacy at Bijni on instruction of the petitioner his driver, one Sri Madan as came to the said Pharmacy and called him outside and when he came out of the said Pharmacy, the petitioner demanded money from him and started threatening him and since the informant/respondent No. 2 failed to pay any such money as demanded by the accused petitioner, he assaulted the petitioner y using force and also snatched away Rs. 1500/- forcefully from his pocket and when nearby people gathered in the place of the incident, the accused petitioner fled away from the said place threatening he informant that he shall take away his life and on the basis of such FIR of the informant/respondent no. 2, Bijni P.S. Case No. 287/18 was registered under Sections 385/323/379/506 IPC against the accused petitioner and his driver one Sri Madan Das.
5. In Tula Ram Vs. Kishore Singh, reported in (1977) 4 SCC 459, the Hon’ble Supreme Court have held that if the police, after making an investigation, send a report that no case was made out against he accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with.
6. It is also settled by the Hon’ble Supreme Court in the case of Minu Kumari Vs. State reported in (2006) 4 SCC 359 that the learned Magistrate is not bound to accept
