MOHAN RAJ Vs. DIMBESWARI SAIKIA

JUDGEMENT

(1.) LEAVE granted.

(2.) INTERPRETATION and application of the provisions of the Criminal Procedure Code, 1973 as amended by the State of Assam by the Code of Criminal Procedure (Assam Amendment) Act, 1983 and the Criminal Procedure Code (Assam Repealing) Act, 1986 falls for consideration in this appeal which arises out of a judgment and order dated 8.3.2006 passed by the Gauhati High Court in Criminal Revision Petition No.748 of 2005. Appellant was working as a Superintendent of Police in Assam in the year 1983. The State of Assam, allegedly, witnessed ethnic violence in the said year. The entire State of Assam was engulfed in ethnic clashes as the elections were being opposed by a section of agitators. The incidence of violence including one at Nelli and other adjoining districts, viz., Nargaon and Gopur Sunitpur had left more than 3000 persons from all communities dead. A purported report was received that a large number of extremist elements were hiding in the jungle for the purpose of attacking the police post and the minority refugee camp. Appellant herein backed with other CRPF personnel, allegedly went to the place of hiding and were waylaid by 500-600 extremists. Police party was sought to have been attacked by the extremists with guns, bows, etc. The CRPF personnel returned the fire in which 7 miscreants died and 12 others were arrested. A First Information Report bearing No.235/83 was registered against 12 accused persons under Section 147/148/149/302/436/ 324/326 of the Indian Penal Code in relation to the said incident. A charge-sheet was filed in the Court of learned Magistrate upon completion of investigation. Charges were framed by the learned Sessions Judge. In regard to the death of the aforementioned 7 persons, however, first respondent, daughter of Dimbeswari Saikia, lodged a complaint before the Judicial Magistrate, 1st Class, Golaghat against appellant, who was at the relevant point of time Superintendent of Police and other police officials. In the said complaint petition, apart from Appellant one T.K. Nag, Inspector Police Camp, Rajabari Tea Garden was also made an accused. It was contended by the first respondent that her deceased husband was taken out from the house at 8.30 in the night. He was caught and assaulted and ultimately, Mony Saikia, Jiten Saikia, Tileswar Saikia, Reba Kr. Saikia, Tikhar Ch. Baruah, Hiren Saikia and Bhadreswar Saikia were killed. Only Kamal Hazarika, witness No.1, managed to escape although he sustained bodily injuries.

(3.) IN Sub-Section (1) of Section 167 of the Criminal Procedure Code, the reference to "Judicial Magistrate" was construed as reference also to "Executive Magistrate". IN Section 190 of the Criminal Procedure Code, in Sub-Section (1) the words "any Executive Magistrate" were inserted after "any Magistrate of the first class". IN Section 191 of the Criminal Procedure Code, the reference to "Chief Judicial Magistrate" in relation to an offence taken cognizance of by an Executive Magistrate, were construed as a reference to the District Magistrate. IN Sub-Section (1) of Section 192 after the words "any" the words "District Magistrate" were inserted. Sub-Section (2) of Section 192 of the Code was substituted as follows: