SITU SARKAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Ms. D. Borgohain, learned Counsel appearing for the Petitioners. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor for Respondent State of Assam and Mr. D.A. Kaiyum, learned Counsel for opposite party No. 2.

(2.) An FIR was lodged by one Smt. Mamata Bora with the in-charge, Dhubri Police Station, which was registered as Dhubri P.S. Case No. 313/2007 under Sections 147/448/325/427/294/342/506 of IPC. After completion of the investigation, the police submitted a Final Report ('FR') discharging the accused persons for want of materials against them. The Magistrate concerned accepted the FR submitted by the police but on receipt of a protest from informant, he took cognizance of the alleged offences and issued summons upon the accused persons directing them to appear and stand trial. This is how, in the present case, the learned Chief Judicial Magistrate, Dhubri, had to pass the impugned order dated 9.4.2009. It is not the existence of power in the Code of Criminal Procedure but the manner in which in the given facts and circumstances, such power has been exercised, has been challenged in the present petition, seeking quashment of the proceedings. Must it, therefore, first refer to the facts as narrated by the Petitioners, as under.

(3.) Ms. Borgohain, learned Counsel appearing for the Petitioners, submits that although the FR was submitted on 22.12.2007, the informant Smt. Mamata Bora (opposite party No. 2), filed the objection on 16.3.2009, i.e., after 1 year and 3 months. According to the learned Counsel, there was an unexplained and inordinate delay in filing the objection which is not permissible under the law. The learned Counsel further submits that the impugned order dated 9.4.2009 taking cognizance of offence, was passed without giving any notice and opportunity of hearing to the Petitioners and as such, it is not sustainable under the law. As per the impugned order aforementioned, according to her, the learned Chief Judicial Magistrate, Dhubri, issued summons to the accused Petitioners asking them to appear before his court and stand trial without providing them any opportunity to oppose the protest petition filed by the informant/opposite party No. 2. It is also submitted by the learned Counsel that the impugned order taking cognizance of the case on the basis of the objection filed by the opposite party No. 2 after the case was returned in FR by the police, should not have been passed by the learned Magistrate, for, the criminal proceedings initiated by the informant opposite party No. 2 is manifestly attended with mala fide and instituted with an ulterior motive for wrecking vengeance on the family of Petitioner No. 3 and with a view to pressurize them to hand over the plot of land for which a case against the informant opposite party No. 2 is pending in the civil court, as stated above.