Crl.A. 8/2008. Gauhati High Court
| Case Number | Crl.A. 8/2008 |
| Judgement Date | October 26, 2020 |
| Court | Gauhati High Court |
IN THE GAUHATI HIGH COURT
( HI GH COURT OF ASSAM, NAGALAND, MI ZORAM AND ARUNACHAL PRADESH)
Criminal Appeal No. 7/2008
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Shri Kartik Chakraborty,
S/o. Shanti Bhusan Chakraborty,
R/o. Nilibari,
PS. Dhaligaon, Bongaigaon, Assam.
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Jabed Ali,
S/o. Late Md. Motior,
R/o. Nilibari,
PS. Dhaligaon, Bongaigaon, Assam.
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Ali Akbor,
S/o. Late Tamijuddin Sk,
R/o. Dangtol Bazar,
PS. Dhaligaon, Bongaigaon, Assam. …. Appellants
- Versus -State of Assam …. Respondent
Criminal Appeal No. 8/2008
Shri Ajay Chakraborty,
S/o. Late Arun Chakraborty,
R/o. South Dhaligaon (Choingapota),
PS. Dhaligaon, Bongaigaon, Assam. …. Appellant
- Versus –
State of Assam …. Respondent
Advocates present:
For the appellants : Mr. B.K. Mahajan,
Mr. A. Choudhury,
Mr. R. Ali,
Mr. N.J. Dutta, Advocates.
Mr. N. Dutta, Senior Advocate as
Amicus Curiae.
For the respondent : Mr. P. P. Baruah, P.P., Assam. Dates of hearing : 04.05.2017 & 23.05.2017 Date of judgment : 26.10.2017
BEFORE
HON’BLE MR. JUSTICE UJJAL BHUYAN HON’BLE MR. JUSTICE SUMAN SHYAM HON’BLE MR. JUSTICE PARAN KUMAR PHUKAN
JUDGMENT & ORDER
( Ujjal Bhuyan, J )
The two appeals are before us on a reference made by a Division Bench of this Court to examine and decide the following question of law: -
“Whether the expression Magistrate appearing in Section 26 of the Evidence Act would mean Judicial Magistrate or an Executive Magistrate?”
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Before we deal with the referral order and answer the question referred,
it would be apposite to make a brief reference to the two appeals out of which the reference has arisen.
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Both the appeals have been preferred against the judgment and order
dated 13.11.2007 passed by the Additional Sessions Judge (FTC), Bongaigaon in Sessions Case No.25(D)/ 2001 convicting the appellants under Sections 120(B)/ 460/ 302/ 34 I PC and sentencing them to rigorous imprisonment for 10 years with fine of Rs.5,000/ - each with a default clause for the offence under Section 460 I PC; imprisonment for life with fine of Rs.5,000/ - each with a default clause for the offence under Sections 120(B)/ 302 I PC; imprisonment for life with fine of Rs.5,000/ - each with a default clause for the offence under Sections 302/ 34 I PC.
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Shri Kartik Chakraborty, Jabed Ali and Ali Akbar are the appellants in
Criminal Appeal No.7/ 2008 whereas Shri Ajay Chakraborty is the appellant in Criminal Appeal No.8/ 2008.
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Appellant Shri Ajay Chakraborty is the husband of the deceased Anita
Chakraborty whereas appellant Shri Kartik Chakraborty is the brother of Shri Ajay Chakraborty. Jabed Ali and Ali Akbar were stated to be hired killers engaged by Shri Kartik Chakraborty at the instance of Shri Ajay Chakraborty to cause murder of Anita Chakraborty.
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The referral order dated 12.12.2013 indicates that there were matrimonial
disputes between accused No.1 Shri Ajay Chakraborty and deceased Anita Chakraborty. Accused No.1 had requested accused No.2 Shri Kartik Chakraborty, his brother, to make arrangement for causing murder of the deceased. Accused No.2 in turn engaged accused Nos.3 and 4, Jabed Ali and Ali Akbar, to cause the murder. On 09.10.1999, accused No.1 went to Cooch Bihar stating that he was going there to bring ornaments for his wife Anita leaving behind Anita in the house of her sister Smt. Gita Das. On the fateful night, Anita was sleeping in the same bed with Smt. Gita Das and her minor daughter. Husband of Smt. Gita Das, Shri Prabir Das, had gone to the residence of Shri Ajay Chakraborty to guard the house during night time in the absence of Shri Ajay Chakraborty. At around midnight, one miscreant entered into the house of Smt. Gita Das by digging a small tunnel whereafter he opened the door. Hearing the noise, Smt. Gita Das woke up and saw one person inside the room. She tried to wake her sister Anita. I n the meanwhile, another person entered into the room and came near the bed where they were sleeping. With the help of torchlight, they identified Anita whereafter they dealt repeated dagger blows on the person of Anita. They dragged her to the floor and continued to deal dagger blows on her. When Smt.
Gita Das tried to raise hue and cry, the two miscreants threatened her in Bengali language to remain silent. After she died, the two miscreants left the room.
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On the next date, i.e., on 10.10.1999, Smt. Gita Das lodged ejahar before
the Dhaligaon Police Station on the basis of which Dhaligaon Police Station Case No.57/ 1999 under Sections 460/ 302 I PC was registered.
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I n the course of investigation, police apprehended accused Nos.3 and 4
on 25.10.1999 and made a requisition to the Additional District Magistrate, Bongaigaon for magisterial assistance in carrying out the investigation. Additional District Magistrate deputed PW 25 Md. Mitta Uddin Ahmed, Executive Magistrate, who was then serving as Extra-Assistant Commissioner, Dhubri, to assist in the investigation. Accused Nos.3 and 4 were interrogated by the police in the presence of PW 25 and in the face of sustained interrogation, they confessed that they were engaged by accused Nos.1 and 2 to cause the murder for which they were paid Rs.8,000/ -. Accused Nos.3 and 4 thereafter led the police to the place where they had concealed the dagger used for commission of the offence and the blood-stained clothes. Following the same, I nvestigating Officer arrested accused Nos.1 and 2 on 25.10.99 itself. While in custody, accused Nos.1 and 2 were produced before a Judicial Magistrate for recording confessional statement under Section 164 Cr.PC. Accordingly, confessional statement of accused Nos.1 and 2 were recorded on 29.10.1999.
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On the next day, i.e., on 30.10.2009, accused Nos.3 and 4 also made
their confessional statements which were recorded by a Judicial Magistrate under Section 164 Cr.PC.
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Upon completion of investigation, I nvestigating Officer filed charge-sheet
against the accused-persons charging the accused-persons for committing offences under Sections 120(B)/ 460/ 302/ 34 I PC.
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The offence being exclusively triable by a Court of Sessions, Chief Judicial
Magistrate, Bongaigaon passed necessary order for commitment of the case to be tried by a Court of Sessions whereafter the case was registered as Sessions Case No.25(D)/ 2001 and was assigned to the Additional Sessions Judge (FTC), Bongaigaon for trial.
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During trial, prosecution examined 27 witnesses and exhibited a number
of documents and materials to prove the case against the accused-persons. Prosecution witnesses were thoroughly cross-examined by the defence. After closure of the prosecution evidence, statement of the accused-persons were recorded under Section 313 Cr.PC. The defence case was of total denial. The accused-appellants deposed as defence witnesses. I n addition, they also adduced another witness who deposed on their behalf.
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After hearing the matter, learned Court below convicted the accusedappellants under the charged sections and sentenced them as above.
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I n the course of hearing of the appeals, learned counsel for the
appellants contended that the circumstances under which accused Nos.3 and 4 made confession to PW 25 while in police custody would not be an admissible confession in law. Such confession cannot be used as an effective piece of evidence to prove the guilt of accused Nos.3 and 4 and also to avail the same as a corroboration to prove the guilt of accused Nos.1 and 2. I t was contended that PW 25 was an Executive Magistrate and, therefore, extraction of confession by the police in front of an Executive Magistrate would not be admissible in evidence. Learned counsel referred to a Division Bench decision of this Court in the case of State of Assam vs. Anupam Das, 2007 ( 3) GLT 697, to contend that the expression “Magistrate” appearing in Section 26 of the Evidence Act, 1882 would mean a Judicial Magistrate and not an Executive Magistrate.
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The referral Bench examined the Coordinate Bench decision of this Court
in Anupam Das (supra) and extracted paragraphs 28 and 29 thereof. Thereafter, the referral Bench observed that there was some confusion in the observations made in paragraphs 28 and 29 of Anupam Das (supra); while in paragraph 28, it was held that Magistrate under Section 26 need not even be a Judicial Magistrate but in paragraph 29, it was held that Magistrate under Section 26 of the Evidence Act would only mean a Judicial Magistrate but not an Executive Magistrate. After referring to Section 26, the referral Bench held as under:-
“15. The scheme of the Code of Criminal Procedure does not envisage participation of a Judicial Magistrate...
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