MANTU KALITA Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. BD Konwar, the learned counsel for the petitioner and also heard Mr. P. Pathak, the learned Addl. Advocate General of Assam assisted by Mr C.Choudhury, the learned Govt. Advocate.

(2.) The issue raised in this petition pertains to investigation of a criminal case. The petitioner is the younger brother of the victim/ informant Sri Ananta Kalita who lodged an FIR on 19.9.99 before the Officer-in-charge, Basistha Police Station. According to the, informant, on 16.9.99 at about 2.00 a.m. in the night while he was sleeping at his residence, a group of about 10/12 armed persons came in a Maruti Gypsy and a Tata Sumo forcefully took away the informant and he was kept confined at 13th Battalion camp, Kahilipara and was physically tortured. On 18th at about 12.00 in the mid-night the group of armed . personnel took the informant to Jorabat Police Station in the said vehicle and keeping him tied in the vehicle the group of persons stayed at the police station for some time and again took him to the top of the mountain. At the same time another group of armed personnel was already waiting there while his hands were tied, the informant was taken out from the vehicle and made to stand at the edge of the mountain and a small weapon was placed at his head and taking one step backwards he was shot at his head and thrown from the mountain. The informant was seriously injured and became unconscious. In the early morning on regarding his consciousness drenched with blood with great difficulty the informant/victim climbed from below the mountain and reached the main road and on getting an Auto rickshaw and travelling on it he reached the District Office of Yuba Chatra Parishad. Thereafter, the workers of the Parishad admitted him to the GMC Hospital and on referral he was shifted to Gauhafi Neurological Centre, Dispur. The informant is able to identify the persons involved in the aforesaid incident. In the FIR being Basistha P.S. Case No. 224/ 99 the informant made a prayer to the Officer-in-charge to investigate and take appropriate steps and also requested him to record his statements by a Magistrate immediately.

(3.) The petitioner moved the Court for a direction for examining the informant under Section 164 of the CrPC by a Magistrate. On receipt of this application, I called upon the learned Govt. Advocate to peruse the Case Diary alongwith the report of the investigation. Accordingly, the matter was placed before me which shows that the investigation is going on. The learned Govt Advocate has also produced medical report by the concerned Medical Officer showing progress of the health condition of informant. Mr. P. Pathak, learned Addl. Advocate General submits that the investigation agency is going ahead with the investigation and the informant is undergoing due treatment at the Down Town Hospital and he has also been given necessary police protection. Mr Pathak has also submitted that the power of examination is vested on the authority prescribed by the CrPC, namely, on any Metropolitan Magistrate or Judicial Magistrate. Since the power is vested on the concerned authority, for fitness of things it was always open for any witness for the complainant to request the concerned Magistrate for his examination. Mr Pathak has also questioned the bonafide of the petitioner.