Dismissed

Salimuddin Ali and 7 Ors. v. the State of Assam and Anr.

Gauhati HC11 Jan 2021Crl.Rev.P./338/2019

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a criminal revision petition challenging the rejection of a prosecution warrant application. The court upheld the Sessions Judge's view that the co-accused's belated attempt to add another accused was a dilatory tactic and lacked merit given the evidence and lapse of time.

What did the court decide?

Revision petition dismissed maintaining the impugned order.

Salimuddin Ali and 7 Ors. Vs the State of… — Civil Procedure and Limitation | Gauhati HC (2021)

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GAHC010196302019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P./338/2019

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SALIMUDDIN ALI AND 7 ORS.

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S/O LATE MANIK ALI, R/O VILL-TUKURA, P.S.-AGIA, DIST-GOALPARA, ASSAM

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2: SARIFUDDIN ALI S/O LATE MANIK ALI R/O VILL-TUKURA P.S.-AGIA DIST-GOALPARA ASSAM 3: ARIFUDDIN ALI S/O LATE MANIK ALI R/O VILL-TUKURA P.S.-AGIA DIST-GOALPARA ASSAM

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4: TAYYAB ALI @ TAYUB ALI S/O LATE ABBAS ALI R/O GOALPARIA GAON P.S.-AGIA DIST-GOALPARA ASSAM 5: AJIBAR RAHMAN S/O LATE SAHAJUDDIN R/O GOALPARIA GAON P.S.-AGIA DIST-GOALPARA ASSAM

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6: JAMER ALI S/O SUBHAN SHEIKH

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R/O GOALPARIA GAON P.S.-AGIA DIST-GOALPARA ASSAM

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7: ABDUL HUSSAIN S/O LATE JAKIR HUSSAIN R/O GOALPARIA GAON P.S.-AGIA DIST-GOALPARA ASSAM

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8: NAUSHAD ALI S/O LATE A. KADER R/O GOALPARIA GAON P.S.-AGIA DIST-GOALPARA ASSA

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VERSUS

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THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

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2:RAIJUDDIN AHMED S/O MD. JAMAL MIYA R/O KARBALA GOALPARA TOWN DIST-GOALPARA STATE-ASSAM PIN-78310

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Advocate for the Petitioner : MR. K SARMA Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

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ORDER

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Date : 11.01.2021

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Learned counsel for the petitioner is present. None appeared for the respondents.

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This revision is directed against the order dated 22.07.2019, whereby the learned Sessions Judge rejected the application filed by the present revision petitioner

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for summoning one Sofiur Rahman Talukdar as accused under Section 319 of the Cr.P.C.

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The present revision petitioner has been facing trial in Sessions Case No. 25/2008 as an accused. The revision petitioner filed an application under Section 319 Cr.PC praying for summoning one Sofiur Rahman as an accused. It was stated in the application filed under Section 419 Cr.PC that one Riajuddin, who has been examined as PW1, deposed in his evidence that one Sofiur Rahman was also involved in the offence. The said witness (PW1) purportedly stated in his deposition that Sofiur Rahman was present at the place of occurrence and when PW3 Haidar went to rescue one of the victim Mohiruddin, Sofiur assaulted him. Upon examination of the record, the learned Sessions Judge rejected the application. The operative part of the order is reproduced below:

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‘I have perused the case record from which it is found that this case is extremely ole pending and as such, it is required to be disposed of expeditiously. On the other hand, the testimony of the PW1 shows that he had mentioned that Hydor was assaulted by Sofiur without any further details regarding identity of the said Sofiur but the testimony of Hydor (PW3) does not mention anything about any accused Sofiur assaulting him and moreover, from the testimony of the witnesses it is found that one Sofiur Rahman Talukdar was one of the victims of this case who was also examined as PW2 and apart from that, the PW1 was examined on 03.06.2010 which was about nine years back but during all this time, no petition was filed under Section 319 of the Cr.P.C and considering all the facts and circumstances, I am of the opinion that the Petition No. 892/2019 is devoid of any merit and accordingly, the same stands rejected.’

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It appears from the impugned order that the alleged witness PW1 was examined on 03.06.2010. However, interestingly the instant application has been filed by the accused after 9 years, citing the evidence of PW1, who was examined before nine years.

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The learned Trial Court has mentioned in the order, that although PW1 stated that Sofiur assaulted PW3, the PW3 did not make any such statement in his evidence implicating said Sofiur Rahman and, therefore, having regard to the evidence brought on record and that the application was filed by an accused after nine years of

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recording evidence, the learned Trial Court rejected the application holding that the petition filed by the co-accused was nothing but a dilatory practice to delay the proceeding.

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Section 319 (1) of the Cr.P.C. provides that where in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. Section 319 Cr.P.C. vested discretion on the Magistrate or the Court to issue summons to any person for impleading as an accused on the basis of the evidence brought on record, if the materials brought on records so demands.

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From perusal of the impugned order and the evidence as referred to as well as the facts and circumstance under which the application was filed interestingly by a co-accused after 9 years of recording evidence, it appears to me that learned Trial Court rightly observed that the application filed by the co-accused was intended only to cause delay. The impugned order passed by the learned Trial Court in exercise of judicial discretion refusing to issue summons under Section 319 to Sofiur Rahman in the attending facts and circumstance, in my considered view, has not suffered from any illegality or impropriety requiring interference by this Court in revisional jurisdiction. Therefore, the petition is found to be devoid of merit and the same is accordingly dismissed.

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JUDGE

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Comparing Assistant

Salimuddin Ali and 7 Ors. v. the State of Assam and Anr.

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Salimuddin Ali and 7 Ors. v. the State of Assam and Anr.

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