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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
AJIT BORTHAKUR, J.
Md. Abdul Kadir S/o Late Suja Miya – Petitioner
Versus
The State of Assam – Respondent
Crl. Pet. No. 1313 of 2019
Decided On : 28-07-2022
Indian Penal Code, 1860 – Section 436 – Criminal Procedure Code, 1973 – Section 200, 202 – Mischief by fire or explosive substance with intent to destroy house, etc – Postponement of issue of process – Petitioner’s case, in brief, is that respondent No. 2 had lodged an FIR before Officer-in-Charge - Witnessing incident, he stepped out of house and saw petitioner running away from near his said burning gumti shop - It was further stated that petitioner set shop on fire. In incident, respondent No. 2 alleged that shop along with all articles were burnt into ashes - Due to his illness, delay occurred in lodging FIR - It is noticed that in course of inquiry, learned Magistrate examined complainant and four other witnesses out of listed five witnesses and on being satisfied that there is a prima facie case, by impugned order issued summons to accused petitioner under Sections 436 of IPC, which is a Session triable offence. (Para 11)
Findings of the Court :
Accused petitioner has mentioned two numbers of cases, which were filed by family of respondent No. 2/complainant and his sister, where police, after completion of investigation, submitted charge-sheets against him and resultantly, he has been facing trial in Court. Both aforesaid cases are serious in nature - Contrary to it, there is no indication that due to any case filed by accused petitioner against respondent No. 2/complainant, latter has filed instant false complaint to wreak vengeance on him - Allegation made in complaint and statements given by witnesses in support of same, at their face value, does prima facie disclose ingredients of offence under Section 436 of IPC - Question of intrinsic evidentiary value of aforesaid statements cannot be looked into at inquiry stage taking into consideration of extraneous defence case - Judicial discretion exercised by learned Magistrate in issuing summons to accused petitioner being based on some amount of prima facie evidence, same cannot be considered to be capricious and arbitrary requiring interference of this Court in exercise of its extraordinary inherent jurisdiction under Section 482 Cr.P.C.
Result : Petition disposed of.
JUDGMENT :
AJIT BORTHAKUR, J.
1. Heard Mr. D. Talukdar, learned counsel for the petitioner. Also heard Ms. S.H. Bora, learned Additional Public Prosecutor, Assam appearing for the State respondent No. 1 and Mr. R. Ali, learned counsel for the respondent No. 2.
2. By this petition under Section 482 Cr.P.C. the petitioner has prayed for quashing of the proceeding of C.R. Case No. 633/2018, pending in the Court of learned Judicial Magistrate, Sankardev Nagar, Hojai (arising out of Murajhar P.S. Case No. 236/2016).
3. The petitioner’s case, in brief, is that the respondent No. 2 had lodged an FIR before the Officer-in-Charge of Murajhar P.S. on 21.12.2016, alleging that on 19.12.2016 at about 12.15 a.m. his gumti shop was seen burning. Witnessing the incident, he stepped out of house and saw the petitioner running away from near his said burning gumti shop. It was further stated that the petitioner set the shop on fire. In the aforesaid incident, the respondent No. 2 alleged that the shop along with all the articles were burnt into ashes. Due to his illness, delay occurred in lodging the FIR.
4. Based on the above FIR, Murajhar P.S. Case No. 236/2016, dated 21.12.2016, was registered and after completion of investigation, the police submitted final report stating that although the burning of the informant’s shop was true, there was no evidence that the present petitioner, who was named in the FIR, was involved in the aforesaid incident. Thereafter, on receipt of notice from the Court, the respondent No. 2/informant filed written objection against the aforesaid final report, on 19.06.2018, stating that he has sufficient witnesses to prove his case. Accordingly, the learned Court allowed the objection and registering C.R. Case No. 633/2018 rejected the Final Report. The learned Court, thereafter, examined the complainant under Section 200 Cr.P.C. and also examined four other witnesses under Section 202 Cr.PC. After due inquiry, the learned Court on being satisfied and having found sufficient prima facie ground took cognizance of the offence under Section 436 of the IPC against the petitioner vide the impugned order, dated 25.09.2019, which is extracted herein-below:
Complainant is present and has vide Petition No. 3821/19 submitted that he is unable to bring the remaining witnesses and as such necessary order may be passed.
The instant case has arisen out of a protest petition filed by the complainant after the investigating officer submitted final report in the FIR filed by him.
The complainant has already been examined.
As part of inquiry u/s 202 Cr.P.C. witnesses Sunita Begum, Sultanan Begum, Jahid Ahmed and Khairul Islam have been examined.
As the offence alleged by the complainant is u/s 436 IPC, which is exclusively triable by the Court of Sessions, my Ld. Predecessor had directed the complainant to produce all his witnesses.
Ideally the complainant must be able to produce all his witnesses as per the proviso to Section 202 (2) Cr.P.C.
In the instant case however one witness has remained unexamined.
That being said, the direction contained in the proviso to Section 202(2) Cr.P.C. is more directory than mandatory. Though the legislature has used the word ‘shall’ the non-examination of all the witnesses does not preclude the Court from proceeding with the case further.
In Shivjee Singh vs. Nagendra Tiwary and Others, (2010) 7 SCC 578, the Hon’ble Supreme Court deemed it proper to observe that even though in terms of the proviso to Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such
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