JUDGMENT :

SUSMITA PHUKAN KHAUND, J.

1. Heard Mr. F.K.R. Ahmed, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Addl. P.P. for the respondent Nos. 1 and 2 (State) and Mr. S.Y. Ahmed, learned counsel for respondent No. 3.

2. The petitioner Abdul Sukur has filed an application under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) read with Section 397 Cr.P.C. for quashing the impugned order dated 11.08.2021 passed in Case No. PRC 1109(H)/2021 arising out of Murajhar P.S. Case No. 223/2021 passed by the learned Chief Judicial Magistrate (CJM for short) Sankardev Nagar, Hojai and for quashing and setting aside the Charge Sheet No. 238(A)/2021 dated 18.08.2021 forwarding seven (7) accused under Sections 147/302/325 of the Indian Penal Code (IPC for short).

3. The FIR unfolds that Saifuddin and Kala Miya indulged in eve teasing and the victim was ‘X’. The informant ‘Y’ was the aunt of the victim. When the victim informed the informant of being harassed by Saifuddin and Kala Miya, the informant’s husband took the victim ‘X’ to the house of Saifuddin and Kala Miya and there was a discussion between the guardians but the youths Saifuddin and Kala Miya denied of having harassed the victim ‘X’. A fight broke out between both the sides and Abdul Wahid, Abdul Sohid and Mustafa Ahmed who were also a part of the group assaulted the informant’s husband with a wooden plank. Thereafter the other accused named in the FIR joined in. The informant’s young child and nephew tried to save her husband but unfortunately her husband succumbed to his injuries. The victim’s husband who died in the incident was Abdul Basit.

4. It is submitted on behalf of the petitioner that he is an indigenous person Below the Poverty Line (BPL). He was not involved in the incident. He was a passerby but unfortunately his name was mentioned in the FIR. When charge-sheet was laid, he was exonerated of the charges but vide the order dated 11.08.2001, the CJM of Hojai, Sankardev Nagar by exercising his power beyond jurisdiction, compelled the Investigating Officer (IO for short) to file additional charge-sheet involving the petitioner. Vide charge-sheet No. 238/2021 dated 31.07.2021, the petitioner was exonerated of all the charges as the IO could not garner any incriminating materials against the petitioner. The additional charge-sheet is Charge Sheet No. 238(A)/2021 drawn on 18.08.2021 by the IO under compelling circumstances. It is submitted that the order dated 11.08.2021 is not sustainable in law, as it was passed by in-flagrant transgression of sub-section (8) of Section 173 Cr.P.C.

5. It is also submitted that the respondent No. 2 who conducted the investigation submitted the former charge-sheet No. 238/2021 sending the accused for trial, but seven (7) accused which also includes the petitioner were not sent up for trial as they have not been implicated by the eye-witnesses whose statements were recorded under Sections 161/164 Cr.P.C. The respondent No. 3 through the Additional Public Prosecutor filed a petition being petition No. 1527/2021 on 05.08.2021 under Sections 173(8) of the Cr.P.C. seeking further investigation of the case on the ground that some material eye-witnesses were not cited as witnesses when the formal charge-sheet was submitted. A photocopy of the petition is marked as Annexure-D. Vide order dated 09.08.2021, the CJM directed the Superintendent of Police (SP), Hojai to furnish a report with regard to the case and posted the petition for hearing and order on 11.08.2021. Pursuant to the order dated 09.08.2021, the respondent No. 2 prepared a report relating to Murajhar P.S. Case No. 223/2021 and submitted the same through the SP, Hojai before the court of the learned CJM. A photocopy of the report is appended along with the petition and is marked as Annexure-F. It is submitted that the three (3) witnesses namely, Musstt. Hasina Begum, Md. Burhanuddin, Md. Kutubuddin have mentioned the names of nine (9) accused