Legally Bharat

Gauhati High Court

S/O Late Ragendranath Boro vs Jagat Konwar And 4 Ors on 13 September, 2024

Author: Kalyan Rai Surana

Bench: Kalyan Rai Surana

                                                           Page No.# 1/8

GAHC010015402024




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

                            Case No: I.A.(Crl.)/674/2024


         BHUPEN BORO

         S/O LATE RAGENDRANATH BORO
         R/O NARAKASUR NAGAR
         P.S. DISPUR
         GUWAHATI-6
         DIST. KAMRUP (M)
         ASSAM


          VERSUS

         JAGAT KONWAR AND 4 ORS
         S/O LATE TAMULI KONWAR R/O NARAKASUR NAGAR
          P.S. DISPUR
          GUWAHATI-6
          DIST. KAMRUP (M)
          ASSAM

         2:SRI NAGEN BHUYAN
         S/O LT. CHAYARAM BHUYAN
         R/O NARAKASUR NAGAR

         P.S. DISPUR
          GUWAHATI-6

         DIST. KAMRUP (M)
         ASSAM

         3:SRI NARAYAN KALITA
         S/O BHABIT KALITA
         R/O NARAKASUR NAGAR
                                              Page No.# 2/8

P.S. DISPUR
 GUWAHATI-6

DIST. KAMRUP (M)
ASSAM

4:SRI GAJENDRA RABHA
S/O LT. KAYENCHA RAM RABHA
R/O NARAKASUR NAGAR

P.S. DISPUR
 GUWAHATI-6

DIST. KAMRUP (M)
ASSAM

5:THE STATE OF ASSAM
REP. BY THE PP
ASSAM
------------
Advocate for : MR. K D CHETRI
Advocate for : PP
ASSAM appearing for JAGAT KONWAR AND 4 ORS



Linked Case : I.A.(Crl.)/675/2024

BHUPEN BORO
S/O LATE RAGENDRANATH BORO
R/O NARAKASUR NAGAR
P.S. DISPUR
GUWAHATI-6
DIST. KAMRUP (M)
ASSAM


VERSUS

JAGAT KONWAR AND 4 ORS
S/O LATE TAMULI KONWAR R/O NARAKASUR NAGAR
 P.S. DISPUR
 GUWAHATI-6
 DIST. KAMRUP (M)
 ASSAM

2:SRI NAGEN BHUYAN
S/O LT. CHAYARAM BHUYAN
                                                                      Page No.# 3/8

          R/O NARAKASUR NAGAR

          P.S. DISPUR
           GUWAHATI-6

          DIST. KAMRUP (M)
          ASSAM

          3:SRI NARAYAN KALITA
          S/O BHABIT KALITA
          R/O NARAKASUR NAGAR

          P.S. DISPUR
           GUWAHATI-6

          DIST. KAMRUP (M)
          ASSAM

          4:SRI GAJENDRA RABHA
          S/O LT. KAYENCHA RAM RABHA
          R/O NARAKASUR NAGAR

          P.S. DISPUR
           GUWAHATI-6

          DIST. KAMRUP (M)
          ASSAM

          5:THE STATE OF ASSAM
          REP. BY THE PP
          ASSAM
          ------------
          Advocate for : MR. K D CHETRI
          Advocate for : PP
          ASSAM appearing for JAGAT KONWAR AND 4 ORS



                                BEFORE
                HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                     ORDER

Date : 13.09.2024
Heard Mr. K.D. Chetri, learned counsel for the applicant. Also heard Mr.
R. De, learned counsel for the opposite parties.

Page No.# 4/8

2. The opposite parties are the petitioners in the connected Crl.Pet.
85/2024.

3. By filing I.A.(Crl.) 674/2024, the applicant, who is the son of
respondent no.1 in the connected Crl.Pet. 85/2024 has prayed for being
substituted as the respondent no.1 upon death of the sole respondent on
21.04.2024. The deceased respondent was the complainant, on whose
complaint, Complaint Case No. 3518/2017 was registered before the Court of
Chief Judicial Magistrate, Kamrup (M), Guwahati. The respondents have filed the
connected criminal petition, praying for quashing of the complaint case.

4. I.A.(Crl.) 675/2024 contains prayer for vacating the order dated
10.04.2024, passed by this Court in Crl.Pet. 85/2024, thereby staying the
proceedings of the complaint case.

5. I.A.(Crl.) 674/2024 has been filed under provisions of Order XXII Rule
1 CPC for substitution.

6. In order to examine as to whether the applicant can be substituted on
not, it would be appropriate to examine the contents of the complaint petition.
The paragraph nos. 1 to 10 and prayer of the complaint petition (except the
cause title) are quoted below:

“1. That the petitioner is a local people of Narakasur Nagar Guwahati-6, under P.S.
Dispur, in the district of Kamrup(M)Assam.

2. That the Complainant submitted written complainant against the accused No.1
Sri Jagat Konwar on 26/05/2017 stating Sri Jagat Known has illegally taking water
supply connection from Narakasur Water supply project.

3. That the authority after receiving the written complainant and take necessary
action against Sri Jagat known and removable the illegal connection of water in the
residence of Sri Jagat Konwar.

4. That the complainant states that the accused persons illegally convent a general
meeting was sitting on 11/6/2017 in the Narakasur Namghar premises and at the time
Page No.# 5/8

of meeting the accused persons physically attract the complainant and also threaten
him not disturb them in the earlier course of time of this project.

5. That the accused persons practically danger in nature and they formed a illegal
committee Narakasur PWSS through a general member included inspite of S.C.
member which is mandatory in this project.

6. That the complainant states the commission of illegally connecting water pipe
are evidenced from the report of PHE authority when they after verification found the
illegal activities of the accused disconnected the connection as per letter No.
AEE/PHE/Ghy/56-34/2017/8/77/dtd. 26/07/2017 issued by the Assistant Executive
Engineer, PHE, Guwahati, Sub-Division in this connection, a Photostat copy of the said
letter copy of which was endorsed to complainant’s Advocate in the light of his notice
16/06/2017 is annexed hereto and marked jointly as Annexure I.

7. That the complainant further states at the behest of the accused the committee
was formed to fulfill his evil design in the formation of the committee.

8. That under the circumstances it is crystal clear that the accuseds (sic.) have
committed offence as mentioned above.

9. That the statement mentioned above will prove the case in due course trial.

10. That this petition made bonafide for the interest of justice.

It is therefore prayed that Your Honour would be
pleased to take cognizance of the matter and issue
process against the accuseds (sic.) under appropriate
provision of law for justice.”

7. From the above, it is seen that the complaint petition does not contain
any averment that the respondents/opposite parties had committed any offence
whatsoever against the applicant, namely, Bhupen Boro.

8. The learned counsel for the applicant has only submitted that the High
Court of Orissa in the case of Sanjit Kumar Mishra & Ors. v. Ranjit Mishra,
Crl.Rev. No. 579/2011, decided on 06.09.2022, after discussing the case of
Chand Devi Daga v. Manju K. Humatani, (2018) 1 SCC 71 , Ashwin Nanubhai
Vyas v. State of Maharashtra, AIR 1967 SC 983, Balasaheb K. Thackeray & Anr.
v. Venkat, (2006) 5 SCC 530, and J.K. International v. State (Govt. of NCT of
Delhi) & Ors., (2001) 3 SCC 462 had allowed substitution.

Page No.# 6/8

9. In the case of Chand Devi Daga (supra), the Supreme Court of India
had referred to Section 249 Cr.P.C. and has held that the accused can be
discharged in the absence of the complainant only when the offence can be
lawfully compounded or is not cognizable, but not in respect of non-
compoundable offence, such as one under Section 426/506 IPC.

10. The case of Ashwin Nanubhai Vyas (supra) involve offences under
Section 417/493/496 IPC and the complaint was by the wife against the
husband, accusing him of going through a sham marriage with her, made her
pregnant and caused abortion. It is after the complaint was filed, the wife had
died and her mother applied for substitution. Under such facts, it was held that
the mother could continue the prosecution herself.

11. In the case of Balasaheb K. Thackeray (supra), the offence that was
committed was punishable under Section 302 IPC. Such an offence is an offence
against the State and can be continued by the Public Prosecutor and under such
circumstances, it was held that the legal heirs can continue prosecution.

12. From the contents of the complaint petition, it ex facie does not
disclose commission of any cognizable offence. In the accusation made in
paragraph-4 of the complaint petition, the words used are “the accused persons
physically attract the complainant” and “also threatened him not to disturb them
in the earlier course of time of this project”.

13. The scanned copy of the trial court records, which was called for has
been examined. The complaint case was filed on 16.08.2017 and except for the
incidents which had occurred on 26.05.2017 and 11.06.2017, no other incident
is narrated. There is only a reference to Advocate’s notice dated 16.06.2017 and
letter dated 26.07.2017.

Page No.# 7/8

14. The text of the complaint case as extracted above cannot be read to
mean or construe that any non-compoundable offence is prima facie made out.
It would be now relevant to quote the provisions of Section 249 and 256 Cr.P.C.

15. Paragraph 8 of the case of Ashwin Nanubhai Vyas (supra) is quoted
below:

“……. The later view is distinctly in favour of allowing the prosecution to continue
except in those cases where the Code itself says that on the absence of the
complainant the accused must be either acquitted or discharged. The present is not
one of those cases and in our judgment the Presidency Magistrate was right in
proceeding with the inquiry by allowing the mother to carry on the prosecution, and
under S. 495 the mother may continue the prosecution herself or through a pleader.
We see no reason why we should be astute to find a lacuna in the procedural law by
which the trial of such important cases would be stultified by the death of a
complainant when all that the S. 198 requires is the removal of the bar. The appeal
fails and it will be dismissed.”

16. Having regard to the decision of the Supreme Court of India in the case
of Ashwin Nanubhai Vyas (supra) cited by the learned counsel for the applicant,
the Court is of the considered opinion that as the complaint petition does not
disclose commission of any offence which is non-compoundable, the prayer for
substitution of the applicant as substituted respondent no.1 in the connected
Crl.Pet. 85/2024 is rejected.

17. The other cases cited by the learned counsel for the petitioner has not
overruled the decision of the Supreme Court of India in the case of Ashwin
Nanubhai Vyas (supra) and therefore, those cases need not be discussed.

18. Moreover, it may also be stated that the provision of Order XXII Rule 1
CPC cannot be made applicable in respect of a criminal petition filed under
Section 482 Cr.P.C.

19. Resultantly, the applicant has not been able to make out any case for
Page No.# 8/8

vacating out the interim order dated 10.04.2024 passed in the connected
criminal petition.

20. Thus, I.A.(Crl.) No. 674/2024 and I.A.(Crl.) No. 675/2024 are both
dismissed.

JUDGE

Comparing Assistant

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