HEMA KANTA BORA Vs. DIMBESWAR CHALIHA

JUDGEMENT

(1.) THIS Criminal Reference is made by the Sessions Judge, U.A.D. at Jorhat under Section 438 of the Criminal Procedure Code, 1898 praying for quashing the charges framed against the accused Hema Kanta Bora.

(2.) THE facts necessary for determination in this case arc that the complainant Dimbeswar Chaliha filed a case being Complaint Case No.65 of 1970 against 8 accused persons. On 10.4.1970 one of the accused persons was discharged. Thereafter, 16.6.1970 was fixed for framing charges against rest of the accused persons, namely, the rest of the seven accused persons. The order sheet of that date shows that the charges were framed against all the accused persons. But, in the form of the charge the name of accused Hema Kanta Bora was not incorporated. The order dated 16.6.1970 does not show that any of the accused was discharged. The order sheet of the said date clearly discloses that charges were framed under Sections 147, 341 and 506 of the Indian Penal Code against "all the accused persons". The records made available to me clearly indicate the facts that the said accused Hema Kanta Bora continued to attend Court since thereafter. I am referring to some of the orders from which it will be abundantly clear that accused Hema Kanta Bora was present in Court in connection with the case as an accused person even after 16.6.1970. The order sheet dated 30.10.1970, 27.8.1973 and the haziras filed in connection with the case are clearly indicative of the fact that the accused Hema Kanta Bora continued to be present in Court even upto on 27 -7 -73. On 27.8.1973 the accused Hema Kanta was absent for which due process was issued against him. On receipt of the summons the accused appeared in Court on 11.8.1973 and made a complaint for the first time that he was discharged by the trial court on 16.6.1970. The learned Magistrate considered the entire records of the case and found that the accused Hema Kanta was never discharged but in the form of the charge his name was omitted. On 11.9.1973, as an abundant caution the learned Magistrate explained him the charges once again and the accused pleaded not guilty and thereafter the case was fixed for cross -examination of the witnesses on 21.10.1973 in regard to the charges so framed against accused Hema Kanta Bora.

(3.) AFFLICTED by the aforesaid order the accused Hema Kanta moved an application under Section 435 read with Section 438 of the Criminal Procedure Code, 1898, before the Sessions Judge, Jorhat, who upon hearing the parties made a reference to this Court praying for setting aside the order dated 11.9.1973 and quashing of charges framed against accused Hema Kanta Bora. It is abundantly clear that the accused Hema Kanta was an accused person. If his plea, that he was discharged be sustained then he must show that there is some order made by a competent Court directing his discharge. On record, I do not find anything to show that the accused was ever discharged. On the other hand I find that the accused himself was present on all the dates excepting a few for which due actions were taken against him. At no point of time either the counsel appearing on behalf of the accused or the accused himself took any objection as to why he was asked by the Court to appear even when he was Discharged on 16.6.1970. After 16.6.1970 he continued to be present in Court until 27.7.1973 without any objection or flutter. It appears that taking advantage of the omission of his name in the form of the charge he took an objection that in view of the absence ol his name in the formal charge he must have been discharged by the trial Court on 16.6.1970. In my opinion, an accused person cannot be discharged in that manner nor he can claim that there was an order of discharge unless he can show and establish thai: there was a valid order of discharge made against him by a competent Court. Herein, on record, there is nothing to show that the accused was discharged.