Crl.Pet. 239/2016. Gauhati High Court
| Case Number | Crl.Pet. 239/2016 |
| Judgement Date | May 20, 2016 |
| Court | Gauhati High Court |
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Transfer petition(crl) 42/2015
Criminal petition 239/2016.
Shri Raghvendra Awasthi, IPS, Director General, Civil Defence and Home Guards, Meghalaya.
Petitioner.
-vsState of Assam.
Respondent.
PRESENT
HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN
For the petitioner Mr. J Roy and Ms M Dev
Advocate.
For the State Mr. K Munir, Addl.PP.
Date of hearing 6.5.2016 and 9.5.2016
Date of judgment 20.5.16.
JUDGMENT & ORDER (CAV)
Both transfer petition(criminal) 42/2015 and criminal petition 239/2016 were filed by the petitioner against the respondent with almost on same ground, as such they are taken up together and being disposed of by this common order.
(2) The petitioner is an accused in Sessions Case no.7/1999 under Section 147/302/209/201/120B/343/325/365/34 of the IPC pending before the learned Sessions Judge, Golaghat. Raising certain grievances that the learned Sessions Judge conducted the proceeding in violation of the prescribed procedure, petitioner has prayed transfer of the case to any other court for adjudication, apprehending that he would not get fair trial from the said court.
(3) In criminal petition 239/2016 petitioner prayed quashing of the criminal proceeding in sessions case 7/1999 which is pending before the learned Sessions Judge, Golaghat.
(4) The aforesaid sessions case arose out of the FIR dated 2.5.1997 and charge sheet was filed on 10.10.1998. The petitioner, who was the Superintendent of Police, Golaghat at the relevant time, faced trial with twelve persons who were also police officials including two other civilians. Hearing of the said case is completed and now at argument stage and at this juncture the petitioner comes up for transfer of these petitions as well as for quashing of the proceedings. The transfer petition was filed on 14.12.2015 and the criminal petition 239/2015 was filed on 1.4.2016.
(5) The contentions raised in both the petitions are almost similar and which can be summarised as below.
(6) The aforesaid FIR was filed by one Inspector(CID), Sri Bharat Ch Gogoi, against the present petitioner and four police personnel and after completion of the investigation charge sheet was filed against the thirteen persons mentioned above.
(7) The brief facts of the prosecution is that on 9.10.1995 two surrendered ULFA members ~ Pranjal Gogoi and Lachit Gogoi picked up one Jyoti Lohar from the house of one Mantu Gogoi as directed by the then SP Raghvendar Awasthi(petitioner) in a car and brought him to the official residence of petitioner. Thereafter those persons were wrongfully confined by the petitioner in HP Baruah Building popularly known as “bhut bungalow”. As a result of torture and assault made by the present petitioner they got serious injuries on their persons and the said Jyoti Lohar succumbed to his injuries in the said building and his dead body was disposed off by the accused persons to cause disappearance of material evidence. During the course of investigation it had been found that accused R. Awasthi with the assistance of the co-accused had also wrongfully confined ones Zakir Hussain, Dilip Gogoi and Mantu Gogoi alias Manas Pratim Gogoi(business partners of the said deceased Lohar) and tortured all of them. Subsequently the said victims were released by one of the co-accused(police officer) but
Jyoti Lohar was tortured till death and his dead body was disposed off with a view to saving themselves from the crime.
(8) With the above findings the charge sheet was filed against the accused petitioner and his associates. It is stated in the charge sheet that the above crime was committed at different stages by the accused persons in their private capacity and there is nothing to show that the deceased was picked up and detained in connection with any legal proceeding. The case was committed to the court of Sessions and the prosecution in the meantime examined all the witnesses. Statements of the accused persons were also recorded and the case is now at the argument stage. The prosecution has submitted its written argument.
(9) In support of the transfer petition and the quashing proceeding the learned counsel Mr. J. Roy and Ms M. Dev vehemently submitted that the transfer of the trial of the accused petitioner is necessitated due to the attitude and conduct of the trial court ~ conducted the trial in a biased manner ~ causing prejudice to the accused petitioner and creating more than a reasonable apprehension in his mind that he would not get proper justice from the said court. That apart due to the irregularities committed by the court while conducting the trial, great injustice was caused to the petitioner and the continuation of the proceeding would be nothing but abuse of the process of law for which the proceeding as a whole should be quashed and set aside.
(10) Among the glaring examples of biasness and prejudice pointed out by the learned counsel for the petitioner can be summarized as below.
(i) The charges were framed against the accused petitioner without supplying him the essential documents that were required to be supplied to him under Section 207 of the CrPC, whereas the petitioner has the right to have police papers relied upon by the prosecution.
(ii) Despite the fact that the FIR was lodged on the basis of an inquiry report petitioner was not served the said report and the learned court did not even show any intention to furnish it despite giving repeated directions by this Court in criminal revision petition 194/1999 and WP(C) 2305/2015.
(iii) It is also contended that the learned court below proceeded with the case without prosecution sanction as provided under Section 197 of the CrPC, whereas the petitioner is an IPS Officer, he was entitled to get proper protection under Section 197 of the CrPC and as per the govt. notification also. Though the petitioner approached the trial court on 18.8.2015 raising the point of having no
sanction of prosecution in terms of the directions given by this Court in WP(C) 2305/2015 learned Sessions Judge took up the petition for hearing and proceeded to further re-examine prosecution witnesses after summoning them on the very date fixed for hearing of the petitioner under Section 107 of the CrPC. The above affair of the learned Sessions Judge is stated to be a biased conduct and the defiance towards fair play and impartiality in conducting the trial.
(iv) The above conduct of the trial court was challenged by the petitioner in criminal petition no: 713/2015, which was disposed of by this Court on 7.9.2015 with direction to the trial court to follow the order of the Division Bench in WP(C) 2035/2015. But on submission of the said order to the trial court the learned Sessions Judge by his order dated 13.11.2015 incorrectly made an observation that the copy(of enquiry report) prayed by the petitioner was already made available to him but it was not received by him by suppressing the order dated 16.10.2014.
(v) The learned trial court fixed 15.8.2015 for recording statement of the accused under Section 313 of the CrPC despite the fact that prosecution had already submitted
its written argument and the statement under section 313 was also complied with, which shows arbitrariness and mala fide in continuing the criminal proceeding without any process of law.
(vi) It is contended that the manner in which the learned trial court conducted the case without giving any opportunity to the petitioner to defend his case in accordance with law petitioner apprehends that he would not get...
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