Petitioner sought Writ Jurisdiction direction for re-investigation of a kidnapping and murder case alleging mechanical police investigation and forensic lacunae. The Court declined to intervene while the trial court was seized, noting statutory provision for filling gaps.
Writ petition disposed of without granting direction for re-investigation.
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GAHC010216212018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6794/2018
ABDUS SATTAR
S/O. LATE NAIMUDDIN MULLAH, R/O. KHESHETARI PART-II, LAKHIPUR, P.O. AND P.S. LAKHIPUR, DISTRICT GOALPARA, ASSAM.
VERSUS
1:THE STATE OF ASSAM AND 8 ORS. REPRESENTED BY THE SECRETARY/ COMMISSIONER TO THE GOVERNMENT OF ASSAM, HOME AND POLITICAL AFFAIRS DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE DIRECTOR GENERAL OF POLICE GOVERNMENT OF ASSAM ULUBARI GUWAHATI-7.
3:THE SUPERINTENDENT OF POLICE GOALPARA DISTRICT- GOALPARA ASSAM PIN- 783129.
4:THE OFFICER-IN-CHARGE LAKHIPUR POLICE STATION LAKHIPUR PO. AND P.S. LAKHIPUR DISTRICT- GOALPARA ASSAM. PIN- 783129.
5:ROBIN ROY SUB-INSPECTOR OF POLICE (I.O.) RANGSAI POLICE OUTPOST LAKHIPUR POLICE STATION DISTRICT- GOALPARA
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ASSAM PIN- 783129.
6:SAHJAHAN ALI (JUVENILE) S/O ABDUR SABAHAN VILLAGE- NIDANPUR PART-II LAKHIPUR PO/ PS- LAKHIPUR DIST.- GOALPARA ASSAM PIN- 783129. 7:ABDUL HAKIM ALI S/O LATE RAMEJ ALI VILLAGE- NIDANPUR PART-II LAKHIPUR PO/PS- LAKHIPUR DIST.- GOALPARA ASSAM (ACCUSED). PIN- 783129.
8:SMTI JARINA KHATUN W/O ABDUL KUDDUS ALI VILLAGE- NIDANPUR PART-II LAKHIPUR PO/PS- LAKHIPUR DIST.- GOALPARA ASSAM (ACCUSED). PIN- 783129.
9:ZAKIR ALAM (JUVENILE) S/O ABDUL KUDDUS ALI VILLAGE- NIDANPUR PART-II LAKHIPUR PO/PS- LAKHIPUR DIST.- GOALPARA ASSAM (ACCUSED). PIN- 783129
Advocate for the Petitioner : MR A K AZAD
Advocate for the Respondent : GA, ASSAM
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BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN
ORDER
Date : 02-11-2018
Heard Mr. A. K. Azad, learned counsel for the petitioner and Mr. D. Das, learned Addl. PP, Assam, who has assisted the Court in view of order dated 01.10.2018. Also heard Mr. R. Dhar, learned Govt. Advocate, Assam.
By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents for re-investigation of Lakhipur PS Case No. 43/2014 by an independent and impartial investigating agency.
Case of the petitioner is that on 11.02.2014, he had lodged a first information before the Lakhipur Police Station stating that his minor son Mobarak Mollah aged about 8½ years, was missing since the previous day i.e. 10.02.2014. On the day of lodging the first information i.e. on 11.02.2014, he had received two phone calls at around 9:00 a.m. and 11:00 a.m. from a mobile phone bearing No. 7896583746 demanding ransom for release of his child. On the same day, at about 2:00 p.m., Sanjib, son of Halim and Fulchand, son of Abdul Hai informed that body of the son was found in the building. On the basis of the said first information, Lakhipur PS Case No. 43/2014 was registered under Sections 365/387/302/201 IPC.
After completion of investigation, police submitted charge-sheet being charge-sheet No. 231/2016 dated 31.10.2016. As per the charge-sheet, arrested accused Sahjahan Ali, Abdul Hakim Ali and Jarina Khatun were charged with committing the offence under Sections 365/387/302/201/34 IPC and accordingly they were sent up to face trial.
It appears that being a sessions triable case, it was committed to the court of the learned Sessions Judge, Goalpara where it has been registered as Sessions Case No. 99/2017.
On a query by the Court, Mr. Azad, learned counsel for the petitioner submits that the case is at the stage of regarding of evidence of the prosecution witnesses.
Grievance of the petitioner is that investigation was carried out by the investigating officer in a very mechanical manner without examining the best witnesses i.e. Sanjib and
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Fulchand. That apart, forensic investigation into the phone calls from mobile No. 7896583746 was not carried out for matching the voice sample of the caller with that of the main accused Abdul Hakim Ali. It is further submitted that there are serious lacuna in the investigation carried out which may ultimately lead to acquittal of the accused persons. It is with such apprehension that the present writ petition has been filed.
After hearing learned counsel for the parties and on due consideration including the decision of the Supreme Court in the case of Popular Muthiah Vs State Represented by Inspector of Police reported in (2006) 7 SCC 296, Court is of the view that it would not be proper for the Writ Court to intervene at this stage when the learned Sessions Judge is in seisin of the matter. Court as well as prosecution have enough scope under the Code of Criminal Procedure, 1973 to overcome any lacuna in the investigation if indeed that be the case. It will all depend upon the primary evidence that may be adduced by the prosecution witnesses. It is for the trial Court to look into all these aspects.
That being the position, Court is not inclined to intervene at this stage.
With the above observation, writ petition is disposed of.
JUDGE
Comparing Assistant
1 issue framed by the court
Whether the Writ Court should intervene at the trial stage to direct re-investigation due to alleged mechanical investigation and forensic lacunae.
Colour shows how this judgement treated each authority
Popular Muthiah Vs State Represented by Inspector of PoliceReferred¶33
(2006) 7 SCC 296 · Who else cites this
2 provisions across 2 enactments
ABDUS SATTAR
THE STATE OF ASSAM AND 8 ORS.
UJJAL BHUYAN
As recorded by the court registry
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