IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

Transfer petition(crl) 42/2015 Criminal petition 239/2016.

Shri Raghvendra Awasthi, IPS, Director General, Civil Defence and Home Guards, Meghalaya.

Petitioner. -vs- State of Assam. Respondent.

PRESENT HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

For the petitioner Mr. J Roy and Ms M Dev

Advocate.

For the State Mr. K Munir, Addl.PP.

Date of hearing 6.5.2016 and 9.5.2016

Date of judgment 20.5.16.

JUDGMENT & ORDER (CAV)

Both transfer petition(criminal) 42/2015 and criminal petition

239/2016 were filed by the petitioner against the respondent with

almost on same ground, as such they are taken up together and being

disposed of by this common order.

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(2) The petitioner is an accused in Sessions Case no.7/1999 under

Section 147/302/209/201/120B/343/325/365/34 of the IPC

pending before the learned Sessions Judge, Golaghat. Raising certain

grievances that the learned Sessions Judge conducted the proceeding

in violation of the prescribed procedure, petitioner has prayed transfer

of the case to any other court for adjudication, apprehending that he

would not get fair trial from the said court.

(3) In criminal petition 239/2016 petitioner prayed quashing of the

criminal proceeding in sessions case 7/1999 which is pending before

the learned Sessions Judge, Golaghat.

(4) The aforesaid sessions case arose out of the FIR dated 2.5.1997

and charge sheet was filed on 10.10.1998. The petitioner, who was the

Superintendent of Police, Golaghat at the relevant time, faced trial

with twelve persons who were also police officials including two other

civilians. Hearing of the said case is completed and now at argument

stage and at this juncture the petitioner comes up for transfer of these

petitions as well as for quashing of the proceedings. The transfer

petition was filed on 14.12.2015 and the criminal petition 239/2015

was filed on 1.4.2016.

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(5) The contentions raised in both the petitions are almost similar

and which can be summarised as below.

(6) The aforesaid FIR was filed by one Inspector(CID), Sri Bharat

Ch Gogoi, against the present petitioner and four police personnel and

after completion of the investigation charge sheet was filed against the

thirteen persons mentioned above.

(7) The brief facts of the prosecution is that on 9.10.1995 two

surrendered ULFA members ~ Pranjal Gogoi and Lachit Gogoi picked

up one Jyoti Lohar from the house of one Mantu Gogoi as directed by

the then SP Raghvendar Awasthi(petitioner) in a car and brought him

to the official residence of petitioner. Thereafter those persons were

wrongfully confined by the petitioner in HP Baruah Building popularly

known as “bhut bungalow”. As a result of torture and assault made by

the present petitioner they got serious injuries on their persons and

the said Jyoti Lohar succumbed to his injuries in the said building

and his dead body was disposed off by the accused persons to cause

disappearance of material evidence. During the course of investigation

it had been found that accused R. Awasthi with the assistance of the

co-accused had also wrongfully confined ones Zakir Hussain, Dilip

Gogoi and Mantu Gogoi alias Manas Pratim Gogoi(business partners

of the said deceased Lohar) and tortured all of them. Subsequently the

said victims were released by one of the co-accused(police officer) but

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Jyoti Lohar was tortured till death and his dead body was disposed off

with a view to saving themselves from the crime.

(8) With the above findings the charge sheet was filed against the

accused petitioner and his associates. It is stated in the charge sheet

that the above crime was committed at different stages by the accused

persons in their private capacity and there is nothing to show that the

deceased was picked up and detained in connection with any legal

proceeding. The case was committed to the court of Sessions and the

prosecution in the meantime examined all the witnesses. Statements

of the accused persons were also recorded and the case is now at the

argument stage. The prosecution has submitted its written argument.

(9) In support of the transfer petition and the quashing proceeding

the learned counsel Mr. J. Roy and Ms M. Dev vehemently submitted

that the transfer of the trial of the accused petitioner is necessitated

due to the attitude and conduct of the trial court ~ conducted the trial

in a biased manner ~ causing prejudice to the accused petitioner and

creating more than a reasonable apprehension in his mind that he

would not get proper justice from the said court. That apart due to the

irregularities committed by the court while conducting the trial, great

injustice was caused to the petitioner and the continuation of the

proceeding would be nothing but abuse of the process of law for which

the proceeding as a whole should be quashed and set aside.

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(10) Among the glaring examples of biasness and prejudice pointed

out by the learned counsel for the petitioner can be summarized as

below.

(i) The charges were framed against the accused petitioner

without supplying him the essential documents that were

required to be supplied to him under Section 207 of the

CrPC, whereas the petitioner has the right to have police

papers relied upon by the prosecution.

(ii) Despite the fact that the FIR was lodged on the basis of an

inquiry report petitioner was not served the said report

and the learned court did not even show any intention to

furnish it despite giving repeated directions by this Court

in criminal revision petition 194/1999 and WP(C)

2305/2015.

(iii) It is also contended that the learned court below

proceeded with the case without prosecution sanction as

provided under Section 197 of the CrPC, whereas the

petitioner is an IPS Officer, he was entitled to get proper

protection under Section 197 of the CrPC and as per the

govt. notification also. Though the petitioner approached

the trial court on 18.8.2015 raising the point of having no

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sanction of prosecution in terms of the directions given by

this Court in WP(C) 2305/2015 learned Sessions Judge

took up the petition for hearing and proceeded to further

re-examine prosecution witnesses after summoning them

on the very date fixed for hearing of the petitioner under

Section 107 of the CrPC. The above affair of the learned

Sessions Judge is stated to be a biased conduct and the

defiance towards fair play and impartiality in conducting

the trial.

(iv) The above conduct of the trial court was challenged

by the petitioner in criminal petition no: 713/2015, which

was disposed of by this Court on 7.9.2015 with direction

to the trial court to follow the order of the Division Bench

in WP(C) 2035/2015. But on submission of the said order

to the trial court the learned Sessions Judge by his order

dated 13.11.2015 incorrectly made an observation that

the copy(of enquiry report) prayed by the petitioner was

already made available to him but it was not received by

him by suppressing the order dated 16.10.2014.

(v) The learned trial court fixed 15.8.2015 for recording

statement of the accused under Section 313 of the CrPC

despite the fact that prosecution had already submitted

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its written argument and the statement under section 313

was also complied with, which shows arbitrariness and

mala fide in continuing the criminal proceeding without

any process of law.

(vi) It is contended that the manner in which the learned trial

court conducted the case without giving any opportunity

to the petitioner to defend his case in accordance with law

petitioner apprehends that he would not get proper justice

due to lack of opportunity of fair trial.

(vii) That after the conclusion of the prosecution argument the

learned court recalled of its own a number of witnesses

who had given statement under section 164 of the CrPC

without a prayer from the prosecution, referring to an old

order of 2008 of the learned court below which had been

already lying before the court when prosecution argument

was allowed to be concluded. It is apprehended that such

one-sided conduct of the court will deny a fair trial to the

petitioner.

(viii) In Civil Rule 4564/1995 petitioner was respondent 3

which was filed by some of the victims to the said

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incident, the learned Single Judge opined that there is no

sufficient material to establish guilt of the petitioner and

on the basis of the aforesaid observations all the

departmental proceedings initiated against the petitioner

were dropped by the government of Assam and he was

promoted to the rank of DIG with retrospective effect and

as such the name of the petitioner required to be deleted

from the FIR and the charge sheet in terms of the

observations indicated above. But the trial court did not

consider the above aspect and proceeded with the trial

even in the face of above irregularities cropped up during

the course of trial.

(ix) It is assailed that the learned trial court was sitting over

the order dated 8.6.2006 and is now taking recourse to

day-to-day hearing which had been directed long ago. The

learned court is intentionally denying fair trial to the

petitioner while giving all opportunities to the prosecution

~ taking evidence and adding charge against the another

accused at the last stage of the trial. Another contention

raised is about rejection of the prayer of the petitioner for

dispensing with his personal appearance.

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(x) On the basis of the above contentions it was urged by the

learned counsel for the petitioner that there is serious

apprehension in the mind of the accused petitioner that

he would not get free and fair trial before the said court as

guaranteed by Article 21 of the Constitution.

(xi) In support of the contention that non-compliance of the

documents under Section 207 of the CrPC has caused

prejudice to the petitioner the learned counsel has relied

upon the decision in BK Sashikala v. State represented by

the Superintendent of Police, 2012 (9) SCC 771, wherein

it is held that “the right of the accused to ask for all

documents that he may be entitled is one of facets of

just and fair and transparent investigation. The

documents whether relied upon or not by the

prosecution but filed in the court and which would

help in determining the truth should be disclosed to

the accused. Denial of access to documents in

custody of the court though not relied upon by the

prosecution, even at the advanced stage of

trial(Section 313 of the CrPC stage in this case) may

cause prejudice to the accused in properly defending

the case and thus result in denial of a fair trial. The

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cause of speedy trial should not cause justice to be

denied”.

(xii) Justifying such transfer of criminal proceeding to different

courts the learned counsel for the petitioner has referred

to the decision in Satish Jagi v. State of Chattishgarh and

others, 2007 (3) SCC 62, where it is held as below.

A judicial officer in whatever capacity he may be functioning has to act with the belief that he is not to be guided by any factor other than to ensure that he shall render a free and fair decision which according to his conscience is right one on the basis of the material placed before him. There can be no exceptions to this imperative but at the same time there should not be any scope given to any person to go away to the feeling that the judge was biased, however unfounded the impression may be. It is sure that the present Sessions Judge would have acted in true sense of a judicial officer but nevertheless to ensure that justice is not only done but also seen to be done and in view of the peculiar facts of the case it would be appropriate if the High Court transfers the case to some other Sessions court. However, such transfer shall not be construed as casting any aspersion on the learned Sessions Judge.

(11) It is to be mentioned that at the time of initiating the hearing by

this court the petitioner himself had filed an additional affidavit with a

submission that this court while working as SDJM(S), Golaghat,

passed several orders against the petitioner and also committed the

case to the sessions court for trial on 4.1.1999 without furnishing the

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entire copy of documents under section 207 and 208 of the CrPC for

which the petitioner is aggrieved and hence this court may not take

up the case but this court however proceeded for hearing for which

the petitioner apprehends that he would not get proper justice from

this court. So it is a prayer for recusal. The same aspect will be

discussed later.

(12) As against the prayer of such transfer the learned Addl. PP Mr.

Munir has submitted that while deciding such prayer the court has to

be convinced as to whether the accused petitioner has any real

apprehension or bias against the trial judge in the given facts and

circumstances alleged by the petitioner. So far as the apprehension is

concerned it is to be one which would establish that the justice will

not be done and being fairly persuaded by such criteria the transfer of

the case can be made otherwise such transfer petition at the fag end

of trial cannot be entertained. It is also fairly conceded by the learned

Mr Munir that save and except the fact that the copy of the inquiry

report is not yet furnished to the accused petitioner there is no other

perversity in the trial to reveal biasness against the petitioner.

(13) Considered the submissions made by learned counsel for the

parties and the documents annexed. At the outset I would like to deal

with the additional affidavit filed by the petitioner which is nothing

but a prayer for recusal from conducting the proceeding. The only

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reason for making such prayer for recusal is that since this court

while attending the case prior to committal as SDJM in the year 1998

has refused bail to the petitioner on several occasions and committed

the case without providing necessary copies, petitioner still felt

aggrieved to this court. In this regard the opinion of this Court is that

such a remote aspect of decades ago cannot be a ground of

apprehension or biasness. As we all do our duty as per the law and

procedure and came across thousands of such cases during such a

span of 18 years(1998 to 2016) one cannot have personal interest in

any of such cases, so I prefer not to show any unnecessary sensitivity

to such prayer made by the petitioner and I do hereby reject the

prayer for recusal which I had already made it clear to the petitioner

on the very date of hearing and accordingly the matter was heard by

this Court as per law.

(14) In support of the contention that the sanction is required prior

to launching criminal prosecution, the petitioner being a police officer,

learned counsel for the petitioner has referred the case law in General

Officer Commanding, Rashtriya Rifles v. Central Bureau of

Investigation and another, (2013) 6 SCC 228, where it is held that if

the offence is alleged to have been committed by him while acting or

purporting to acting in discharge of his official duty, ground for prior

sanction becomes imperative. Further it is held that protection given

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under Section 197 of the CrPC is to protect responsible public servant

against the institution of possibly vexatious criminal proceedings for

the offences alleged to have been committed by them while they are

acting or purporting to acting as a public servant. The question to

examine as to whether sanction is required or not under a statute has

to be considered at the time of taking cognizance of the offence and

not during inquiry or investigation. On the same point the petitioner

has referred to the decision reported in 1987 (1) SCC 276, Ram Kumar

v. State of Haryana; (1993) 3 SCC 339, State of Maharashtra v. Dr.

Budhikota Subba Rao; (1996) 1 SCC 478, R. Balakrishna Pillai v.

State of Karala and others; and 2000 CLJ 4031, Gaurishankar Prasad

v. State of Bihar.

(15) Relying upon the above decisions it has been submitted that

cognizance of offence taken by the trial court against the accused

petitioner is bad in law as he was discharging his official duty as

Superintend of Police, Golaghat, at the relevant time. I have given due

consideration to the submissions made to this court. It is to be noted

that the petitioner had raised the same issue before this court on

earlier occasion also when this court directed the petitioner to raise

such issue before the trial court in due manner. Accordingly, after

disposal of WP(C) 2035/2015 the petitioner had raised the said issue

before the trial court which was disposed of after hearing of both

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parties by its order dated 13.11.2015, which is impugned in this case

also.

(16) In this context it may be mentioned that as the concerned case

record i.e. sessions case 7/1999 called for in connection with this

case was placed before this court which I have accordingly gone

through. What transpired from the case record is that such question

of sanction was raised before the court at the very initial stage of

taking cognizance i.e. at the time of framing of charge and the learned

Sessions Judge after hearing the matter at length by an elaborate

order dated 20.4.2005 has rejected such prayer with the observation

that no such sanction was required in view of the fact that the

purported act of confining and killing of a person in the police custody

was not in discharge of his official duty. Surprisingly, the petitioner

did not challenge the aforesaid order and the charge was framed

accordingly and after a long run of prosecution the petitioner had

again raised the same plea by filing different petition before this court

by suppressing the aforesaid aspect. Such conduct of petitioner

cannot at all be appreciated and it is an abuse of the process of law.

In the decision relied by the petitioner reported in (2012) 6 SCC it is

categorically held that such a question of sanction has to be

considered at the time of taking cognizance of the offence and not

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during inquiry and investigation(vide para 43). Such a challenge at the

fag end of the trial again and again is not maintainable.

(17) The learned Sessions Judge could have disposed such petition

for want of sanction by referring to the order dated 20.4.2005 instead

of hearing the matter afresh. However, it can be construed that in

terms of the order and direction passed by the Division Bench in

WP(C) 2305/2015 the petitioner has availed the chance of raising the

same issue and obviously this court was also not made aware of such

order passed on 20.4.2005. In view of such matter on record and the

falsity of plea of the petitioner that the court has never acted upon the

subject of sanction this court is not obliged to appreciate the order

dated 13.11.2015 passed by the learned Sessions Judge on the point

of sanction which is in tune with the order passed on 20.4.2005 and

the said order dated 20.4.2005 has already attained finality.

(18) It is to be noted that while pressing such matter for sanction the

petitioner has nowhere offered any explanation as to under what

reference or discharge of legal duty the said deceased person was kept

in his official residence and then in another private building without a

case being registered against the said person. This aspect is perhaps

enough to negate the claim of the petitioner that he acted (by keeping

such person in confinement) while discharging his official duty.

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(19) The petitioner further lays stress on the decision rendered in

Civil Rule 4564/1995 where the court opined that the petitioner is not

liable for the allegation of torture on the deceased, J. Lohar. And on

the basis of the aforesaid decision the petitioner has claimed that his

name should be deleted from the FIR as well as the charge sheet.

(20) This court on perusal of the aforesaid decision (annexed to the

record) found that the aforesaid case was filed by two petitioners

praying an impartial investigation in respect of the death of the said

Jyoti Lohar in the police custody and the illegal detention to petitioner

2. While disposing the case the court in para 8 observed as follows.

“It appears to me that there is no sufficient material on record

for establishing it as against respondent 3”(petitioner was respondent

3) in the aforesaid case. However, in the last para of the judgment

reads as follows.

“It is also made clear that any order, orders and observation

made by this court in this case including the report of the District and

Sessions Judge, Golaghat shall not either influence the investigation

or trial and it shall not cause any prejudice to the respondent 3 in

related matters”.

(21) It is quite visible that the aforesaid aspect was a simple

observation by the court and it cannot be held that it is enough to

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exonerate the petitioner from all the charges and the criminal

prosecution that has been made out subsequently during the course

of investigation.

(22) Regarding the challenge of the petitioner that the CID has

conducted the investigation without any authority of law is also found

to be unnecessary allegation. In the order dated 6.3.1997 passed in

Civil Rule 4564/95 the court directed the govt. of Assam for initiation

of action against the delinquent officer for prosecution as well as

disciplinary proceeding on the basis of findings given in the inquiry

report dated 30.6.1996 conducted by the learned Sessions Judge. It is

to be noted that only after the said direction the inquiry was

conducted by the CID and thereafter on 2.5.1997(that is after passing

of the said direction on 6.3.1997 the Inspect of Police, CID filed the

impugned FIR, no illegality is crept in as has been alleged by the

petitioner

Let us appreciate the legal criterion that has to be fulfilled

prior to consideration of transfer of a criminal proceeding from

one court to another.

(23) In this context we may profitably refer to a passage from a

three-judge decision in Gurucharan v. State of Rajasthan, AIR 1996

SC 1418 where it has been held as below.

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The law with regard to the transfer of cases is well settled.

A case is transferred if there is a reasonable apprehension on the

mind of the person to a case that justice would not be done. The

petitioner is not required to demonstrate that the justice

inevitably failed. He is entitled to such a transfer if he shows

circumstances from which it can be inferred that he entertains

an apprehension and it is reasonable in the circumstances

alleged. It is one of the principles of administration of justice

that justice would not only be done but it should be seen to be

done. However, a mere allegation that there is apprehension that

justice will not be done in a given case does not suffice. The court

has further to see whether the apprehension is reasonable or not

to judge the reasonableness of the apprehension, the state of

mind of the person who entertains the apprehension is no doubt

relevant but that is not all. The apprehension must not only be

entertained but must appear to the court to be a reasonable

apprehension”.

(24) In Abdul Mazar Madani v. State of T.N. (2000) 6 SCC 204 the

Hon’ble Supreme Court ruled that the apprehension of not getting a

fair trial and impartial inquiry or trial is required to be reasonable and

not imaginary, based on conjecture and surmises.

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(25) The said decision was reiterated by the subsequent decision

rendered in Cap. Amrinder Singh v. Prakash Singh Badal and others,

(2009) 6 SCC 260, where it is also held that it is required on the part

of the court to see whether the apprehension alleged is

reasonable or not. In the context it is also held that assurance of

fair trial is a first imperative of dispensation of justice. The

purpose of criminal trial is to dispense fair and impartial justice

uninfluenced by extraneous consideration. When it is shown that

the public confidence in the fairness of the trial would be

seriously undermined the aggrieved party may seek the transfer

of the case.

(26) The said principle was followed in Lalu Prasad Yadav v. State of

Jharkhand (2013) 8 SCC 593 where it is categorically held that

“seeking transfer at the drop of a hat is unconscionable. An order

of transfer is not to be passed in a matter of routine or merely

because an interested party has expressed such apprehension

about the proper conduct of the trial. The power has to be

exercised cautiously and in exceptional circumstances where it is

necessary to do so to provide credibility to the trial. There has to

be real apprehension that there would be miscarriage of

justice”(also referred Nahor Singh Yadav and another v. Union of

India, (2011) 1 SCC 307). In a recent case law reported in AIR 2016

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SC 336, Usmangani Adambhai Vahorav. State of Gujarat and others,

decided on 8.1.2016, the Hon’ble Supreme Court has endorsed all the

above views expressed earlier.

(27) Adverting to the grounds given by the petitioner it would be

found that basically the petitioner tried to challenge the case on merit

which is not permissible under the transfer petition. Non-

consideration of the question of sanction as regards the petitioner

cannot be ground for transfer as it is a judicial order of a court which

is amenable to the alternative remedy like revisions etc and the said

exercise has already been done by the petitioner. It is also to be noted

that apart from the petitioner there are other ten police officers facing

the trial but none of them have challenge the conduct of trial at any

stage except the petitioner.

(28) I have also gone through the orders passed by the learned trial

court that was referred above that is the order dated 12.5.2004,

16.10.2014, 13.11.2015, 18.8.2015, 8.9.2015, 16.11.2015, 5.12.2015

etc. What is discernable from the material on record is that the

aforesaid sessions case was conducted by as many as six presiding

officers and different orders were passed by different presiding

officers. There was an order dated 5.7.2008 where on the prayer of

prosecution to examine all the witnesses who have given statement

under section 164 of the CrPC the learned court allowed to summon

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to those witnesses and though some of the witnesses were examined

by one presiding officer but some of them were left to be examined

may be because of transfer of presiding officers and in the meantime

the subsequent presiding officer as per the material on record acted

only to regularize the same without being anything persuaded by his

own notion. All this happens because of long pendency of the case and

at some times the court also lost its track while pursuing day to day

hearing order passed long years back by his predecessors.

(29) On scrutiny of the records it reflects that the court framed

charge against one of the accused viz. C. Gogoi under Section

201/149 of the IPC) at the later stage of hearing and on the prayer

made by the said accused recalled two of the witnesses for

reexamination by the said witness. Such affairs of the court has also

been challenged by the petitioner that the court cannot reopen the

matter for hearing while the case at the stage of argument and such a

submission has no substance at all. The reexamination of the

witnesses under the provisions of Section 311 of the CrPC cannot be

designed as biasness against the defence or favouritism to

prosecution. Nothing is discernable that the trial court was in any way

influenced by extraneous consideration and that he did not act in

reasonable manner so as to raise a doubt about the credibility of the

trial.

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(30) In the instant case this court is persuaded to think that the

apprehension that has been stated is absolutely mercurial and cannot

be remotely stated to be reasonable. The contention of the petitioner

that his prayer for discharge has not been considered by the trial

court in absence of sanction and that he has been exonerated by the

observation of the court so rendered in Civil Rule 4564/1995, which

was not considered by the trial court, and that necessary copies of the

inquiry report were not furnished to him while framing charge and

subsequent thereto, that the court has distantly adhered day to day

course of hearing, that the court has decided to examine some left

over witnesses under section 311 of the CrPC even at the stage of

argument etc etc that has been mentioned above cannot be a ground

for transfer as he failed to create apprehension in the mind of the

court that it would be reasonable to create apprehension to deny

justice to petitioner or biasness on the part of the court. A court of law

is within its ambit if it explores and adjusts all matters on record and

any challenge of such effort to discredit his judicial act cannot be

permissible, which is again made by a litigant who is none other than

the accused himself in such proceeding.

(31) In our criminal justice delivery system the balance tilts in favour

of the accused in case of any doubt in regard to the trial. The subject

that was challenged by the petitioner can be raised in course of his

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argument raising such grievances if there is any inherent defect in the

prosecution resulting prejudice to his defence and in the process the

court is obliged to appreciate all such grievances.

(32) From what has been discussed above it is found that the ground

for seeking transfer of the above case does not deserve consideration

at all. It is found that petitioner has not been able to make out a case

of biasness and prejudice on the part of the State or the prosecuting

authorities to raise a very real and plausible ground for transferring

the trial pending before the learned Sessions Judge, Golaghat.

Let us now discuss the other facets of the quashing

proceeding as regards the session case that is pending before the

trial court.

(33) The law relating to invoking the power conferred under Section

482 of the Code of Criminal Procedure, 1973 on the High Court is well

settled. In the landmark judgment the Supreme Court in the State of

Haryana v. Bhajan Lal and others, 1992 (Suppl) (1) SC 335 the

Hon’ble Apex Court has laid down certain parameters by which the

High Court can exercise powers conferred on the High Court. The

above guidelines is reproduced below.

(i) Where the allegations made in the First Information Report(FIR),

or the complaint, even if they are taken at their face value and

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accepted in their entirety, do not prima facie constitute any offence or

make out a case against the accused.

(ii) Where the allegations in the First Information Report(FIR) and

other materials, if any, accompanying the FIR do not disclose a

cognizable offence, justifying an investigation by police officers u/s

156(1) of the Code except under order of the Magistrate within the

purview of Sec. 155(2) of the Code.

(iii) Where the uncontroverted allegations made in the First

Information Report(FIR) or complaint and the evidence collected in

support of the same do not disclose the commission of any offence

and make out a case against the accused.

(iv) Where the allegations in the FIR do not constitute a cognizable

offence but constitute a non-cognizable offence and no investigation is

permitted by a police officer without an order from a Magistrate as

contemplated under sec. 1559(2) of the Code.

(v) Where the allegations made in the FIR or complaint are so

absurd and inherently improbable on the basis of which no prudent

person can reach such a conclusion is just conclusion that there is

sufficient ground for offence.

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(vi) Where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act to the institution and

continuance of the proceeding at or where there is specific provision

the Code or Act providing efficacious redress or the grievances for the

aggrieved party.

(vii) Where the criminal proceeding is manifestly attended with

mala fide or where the proceeding is maliciously instituted with an

ulterior motive or wreaking vengeance on the accused with a view to

spite him due to private and person grudge.

(34) In Minu Kumari and another v. State of Bihar and others, 2006

(4) SCC 359, the Hon’ble Supreme Court has held that the power of

inherent jurisdiction under Section 482 of the CrPC though very wide

has to be exercised sparingly, carefully and with caution by the test

specifically laid down in Section 482 of the Code but it should not be

exercised to stifle a legitimate prosecution High Courts should refrain

from giving a prima facie decision.

(35) In Umesh Kumar v. Andhra Pradesh report in 2013 (10) SCC

591 the Supreme Court dealt with the scope of Section 482 of the

Code of Criminal Procedure, 1973 in the following words:

The scope of section 482 of the Code of Criminal Procedure, 1973 is well defined and the inherent power could be exercised to prevent abuse of process of court and to otherwise,

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to secure the ends of justice. However, in exercise of such power it is not permissible to appreciate the evidence as it can only evaluate material documents on record to the extent of prima facie satisfaction of existence of sufficient grounds for proceeding against the accused and the court cannot look into the materials, the acceptability of which will essentially be a matter of trial. Any document filed along with the petition levelled as evidence without being tested and proved cannot be examined.

(36) The Supreme Court in in Narinder Singh and others v. State of

Punjab and another, (2014) 6 SCC 466(para 29.7) held as bellow.

“When the prosecution evidence is almost complete or after the

conclusion of the evidence the matter is at the stage of argument,

normally the High Court should refrain from exercising its power

under Section 482 of the Code, as in such cases the trial court would

be in a position to decide the case finally on merits and to come to a

conclusion as to whether the offence under Section 307 IPC is

committed or not”.

(37) Analyzed thus it is found that there is no illegality in the

proceeding before the trial court as has been alleged by the petitioner

to invoke the provisions of Section 482 of the CrPC so as to quash the

criminal proceeding at the fag end of the trial. It appears that the

petitioner is moving around the same issues by filing one after

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another petition before this court by suppressing certain material

aspects as has been discussed above.

(38) Moreover the petitioner has raised the issue of non-furnishing of

copies of documents relied by the prosecution but except the specific

document regarding inquiry report conducted by the learned Sessions

Judge he has not mentioned any other documents which was not

furnished to him. Of course there is a mention in the FIR about such

inquiry report but it appears from the record that the prosecution

except referring seizure of the said documents has not exhibited/

relied on the said documents, nor the said officer has been examined

as witness. However the petitioner is legally entitled to get the copy

and there was earlier direction also to furnish the said copy to the

petitioner. Accordingly the learned Sessions Judge, Golaghat is hereby

directed to ensure personally that the copy of the said inquiry report

is furnished to the petitioner on the very day of his appearance before

the court without fail by taking the signature of the accused petitioner

on record.

(39) In view of the findings and discussions above both the petitions

stand dismissed. The learned Sessions Judge, Golaghat, is hereby

directed to conclude the trial without further delay but not beyond one

month from the date of receipt of copy of this order.

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(40) Return the LCR forthwith along with a copy of this order.

Registry will do the needful.

JUDGE

na/

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