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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
NANI TAGIA, J.
Abdul Mannan S/o. Late Samser Ali - Petitioner
Versus
The State of Assam, represented by the Public Prosecutor, Assam & Ors. - Respondents
Crl. Rev. P. No. 355 of 2019
Decided On : 09-11-2021
Criminal Procedure Code,1973 - Section 258, 397 and 401 – Indian Penal code,1860 - Section 143/447/427 - Criminal trespass – Punishment - Alleging that on accused persons along with a group of anti social elements armed with deadly weapons entered into his plot of land and tried to occupy same forcefully and dismantled his house and thereafter, constructed a new house over said plot - Pursuant to above complaint, an FIR under Section 143/447/427 IPC was registered by Officer-in-Charge of P.S. On completion of investigation, Final Report was submitted by investigating authority of P.S. on stating that dispute is of civil nature - Final Report filed by police however was not accepted by Court of learned - learned Additional Chief Judicial Magistrate by order while rejecting Final Report, passed an order to effect that prima facie case have been made out against accused named in FIR under Section 143/447/427 IPC and accordingly, cognizance was taken and PR Case was registered - Learned Additional Chief Judicial Magistrate passed impugned order under Section 258 Cr.P.C., discharging accused persons - Impugned order is reproduced herein below for ready reference.
Finding of the court: Impugned order appears to have invoked power under Section 258 Cr.P.C. for reason that since only one witness have been examined and rest of witnesses have not turned up despite duly served with notice and that case is an old pending one involving petty nature of offence charged against accused, which in considered view of Court, is not a justifiable ground to order stoppage of proceedings in exercise of power under Section 258 Cr.P.C. for reasons that reading of complaint and Final Report does not indicate that there is no prima facie case made out against accused - Though, only one witness may have been examined since and that other witnesses may not have turned up despite service of summons, resulting in an inordinate delay in concluding trial cannot be a ground to terminate proceeding in exercise of power under Section 258 Cr.P.C. as held by Honourable Supreme Court of India in case - Impugned order passed by learned Additional Chief Judicial Magistrate, in P.R. Case stands interfered by leaving it open for learned trial Court to proceed in accordance with law.
Result: Petition allowed
JUDGMENT :
Heard Mr. D. Barman, learned counsel for the petitioner and Mr. P. Sarma, learned APP for the respondent no.1. None has appeared for the respondent no.2-7, though notice on respondent nos.2-7 have been served as indicated in order dated 01.04.2021.
2. This is an application under Section 397 read with Section 401 Cr.P.C. assailing the order dated 28.05.2019 passed in PR Case No.1436/2015 by the learned Additional Chief Judicial Magistrate, Nagaon whereby the proceeding was stopped under Section 258 Cr.P.C. and all the accused persons were discharged.
3. The facts leading to filing of the instant revision petition are as follows: the petitioner had lodged a complaint against the respondent nos.2-6 before the Officer-In-Charge, Juria P.S. on 11.01.2015 alleging that on 11.01.2015, at about 3 A.M., the accused persons along with a group of anti social elements armed with deadly weapons entered into his plot of land and tried to occupy the same forcefully and dismantled his house and thereafter, constructed a new house over the said plot. Pursuant to the above complaint, an FIR No.25/2015 under Section 143/447/427 IPC was registered by the Officer-in-Charge of the Juria P.S. on 15.01.2015. On completion of the investigation, Final Report No.17/15 was submitted by the investigating authority of the Juria P.S. on 31.01.2015 stating that the dispute is of civil nature. Final Report filed by the police however was not accepted by the Court of learned Additional Chief Judicial Magistrate, Nagaon and the learned Additional Chief Judicial Magistrate by order dated 15.07.2015, while rejecting the Final Report, passed an order to the effect that prima facie case have been made out against the accused named in the FIR under Section 143/447/427 IPC and accordingly, cognizance was taken and PR Case No.1436/2015 was registered. Pursuant thereto, the complainant appears to have been examined on 18.02.2017. Thereafter, the learned Additional Chief Judicial Magistrate passed the impugned order dated 28.05.2019 under Section 258 Cr.P.C., discharging the accused persons. The impugned order is reproduced herein below for ready reference:
PWs absent.
S/R shows summons duly served upon the PWs but they did not turn up.
On perusal of C/R, it is seen that the instant case is pending in evidence stage since 27.05.16 and till date only one witness have been examined in spite of being given several opportunities.
Keeping in view the old pendency of the case and petty nature of the offence charged against the accused and also keeping in view the fact that accused are regularly appearing before the court on each fixed date which has caused great hardship to him, this court is of the view that evidence U/S 258 Cr.P.C. needs to be closed.
After hearing the learned Counsel for both the sides and also keeping in view the above facts PWs hereby closed U/S 258 Cr.P.C. As no any witnesses have been examined. Accused are hereby discharged.”
4. From perusal of the impugned order dated 28.05.2019 passed by the learned Additional Chief Judicial Magistrate, Nagaon, reproduced hereinabove, it is noticed that the accused in PR Case No.1436/2015 have been discharged on the ground that though summons have duly been served upon the PWs, but they did not turned up and the case is pending in evidence stage since 27.05.2016 and till date, only one witness have been examined inspite of being given several opportunities. The other reasons given in the impugned order is that the case is an old pending one and offence charged against the accused is of petty nature and that since the accused have been regularly appearing before the Court on each date, great hardship have been caused to the accused.
5. Section 258 of the Cr.P.C., which is a power to stop proceedings in certain cases reads as under:
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