ANUPAM CHAKRABORTY Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS case is concerned with a small incident of burglary but, it carries a big burden of a fundamental question. What is the ambit of powers and jurisdiction of a criminal Court to add as an accused any person to stand trial for an offence for which he is not charge -sheeted by the police ? The question is indeed fundamental in the sense that criminal Courts exist to try offenders for the protection of society. While powers and jurisdiction of the courts are circumscribed by the provisions of the Code the question is how those provisions which have a bearing on this fundamental duty of the Courts are to be interpreted.

(2.) ON 6 -2 -79 an information was lodged by the Proprietor of Hind Pharmacy, Jorhat, with the officer -in -charge of Jorhat P. S. in which it was stated that there was a burglary in his shop during the preceding night. On the basis of this FIR the police made investigation and submitted charge -sheet dt. 10 -4 -79 under Sections 457/380/411 IPC in the Court of Chief Judicial Magistrate, Jorhat, whereupon cognizance was taken on 2 -5 -79 by the Court. In the charge -sheet one Swapan Dutta and another Radheshyam Paul were shown as accused in custody and the petitioner's name appeared therein as a witness. Along with the charge -sheet two seizure lists were also filed. From one of the seizure lists it appears that on being "led by the arrested accused Swapan Dutta" a search was conducted on 28 -2 -79 in the "shop (Pharmacy) of Anupam Chakraborty", (the petitioner). From the seizure list it also appears that the seized articles were identified by one Mihir De, son of H. C. De Proprietor, Hind Pharmacy, Jorhat.

(3.) ON 6 -6 -79 the learned Magistrate passed order in G. K. Case No. 218/79 and framed charges under Sections 457/380 IPC against accused Swapan Dutta and under Section 411 IPC against, accused Radheshyam Paul. On 4 -7 -79 an application was filed by the Assistant Public Prosecutor stating that there was sufficient material for framing charge under Section 411 IPC against the petitioner who was not sent up by the police. It was further stated that non -joinder of the said accused will highly prejudice the prosecution case and it was prayed that the petitioner may be added as an accused in the case and be directed to lie produced. Under what, provision of law the application was filed does not appear on the face of it. However, the learned Magistrate entertained the application and passed the following order on that date which is impugned in this revision petition : "Accused Radheshyam is present. Accused Swapan Datta is produced from jail Hajat. Witness has not come. Slip from the Court has been returned unserved. The prosecution states that there is evidence against one Anupam Chakraborty and prayed him to be brought as accused for trial. During Police investigation the said accused was not arrested. From the seizure list it is found that during investigation some medicines are recovered and seized from the pharmacy of the said accused. Cognizance has been taken against accused Anupam in this case. Issue summons against this accused fixing 1 -8 -79. Fix 18 -7 -79 for appearance of the under -trial prisoner (Hajati) Accused Swapan may go on bail for Rs. 2000/ -.