Page No.# 1/8 GAHC020000222024 2025:GAU-NL:71 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : Crl. Pet./57/2024 SMTI MAMPI PAUL W/O SHRI GOPAL PAUL T.K. COMPLEX LHOMITHI COLONY P.O. DIMAPUR NAGALAND REPRESENTED BY POWER ATTORNEY HOLDER SHRI GOPAL PAUL VERSUS SMTI JARITA DAS AND ANR W/O SHRI DILIP DAS NEAR SATSANGH TEMPLE PACCA ALI P.O. BOKAJAN DIST- KARBI ANGLONG ASSAM 2:SMTI JHUMU DEBNATH W/O LATE DHRUBA DEBNATH NEAR SHIB MANDIR PACCA ALI P.O. BOKAJAN KARBI ANGLONG ASSAM ------------ Advocate for Petitioner: WATI JAMIR Advocate for Respondents : P. B. PAUL appearing for SMTI JARITA DAS AND ANR Page No.# 2/8 BEFORE HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER O R D E R 04.03.2025 Heard Mr. Wati Jamir, learned counsel for the petitioner/complainant and Mr. Pfosekho Pfotte, learned counsel for the respondents/accused persons. 2. This is an application under Section 528 read with Section 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 praying for quashing of Judgment dated 25.10.2024 passed by the Sessions Judge, Dimapur, Nagaland in Criminal Appeal No. 5/2024 and also the Order dated 31.05.2024 passed by the Judicial Magistrate (First Class), Dimapur in CR case No. 12/2022. 3. The petitioner herein states that he had filed a criminal complaint against the respondents before the learned Judicial Magistrate (First Class), Dimapur, which was registered as CR Case No. 12/2022 under Section 468/471/420/506/34 IPC. The statement of the petitioner’s Power of Attorney holder and one Swapan Dutta was recorded under Section 200 CrPC and cognizance was taken under Section 468/471/420/506/34 IPC and summon was issued to the respondents/accused persons. Aggrieved by the order issuing summons against then the respondents/accused persons approached this Court by filing a criminal petition being Criminal Petition No. 25/2022. The Hon’ble Court, by Order dated 25.04.2023 at Annexure-D allowed the criminal petition by remanding back the case to Page No.# 3/8 the Trial Court with a direction to pass necessary orders following the provisions of Section 202 CrPC before issuing summons to the respondents/accused persons as they are residing outside the jurisdiction of the court below. Thereafter, in compliance of the Order dated 25.04.2023 of this Court, the learned Judicial Magistrate (First Class), Dimapur directed the OC of Sub-Urban Police Station, Dimapur to enquire into the matter and submit the investigation report. The OC forwarded his Enquiry Report on 21.03.2024 which is at Annexure-F to the petition. The matter was thereafter fixed for consideration of charge on 31.05.2024. 4. The learned counsel for the petitioner, Mr. Wati Jamir has submitted that the CR 12/2022 was mainly filed alleging forgery of Affidavit dated 15.06.2015 (Annexure-H in Crl Petition 2 of 2024) against the respondents/accused persons. However, the respondents/accused persons were discharged by the learned JMFC, Dimapur vide Order dated 31.05.2024 under Section 245 CrPC. It is the contention of the petitioner that the learned court below had also stated in the judgment that the evidence of the prosecution under Section 244 CrPC was recorded and having arrived at the findings decided that the charge against the accused persons was groundless and, therefore, the criminal complaint 12/2022 was dismissed and the accused persons were discharged. However, the learned counsel has submitted that in reality no PWs were examined under Section 244 CrPC as the notary, who registered the alleged forged document dated 15.06.2015 was not examined, nor the expert was examined, nor any other PWs. The learned counsel also submits that the only statements which were recorded was the Section 200 CRPC statement of the complainant and one Swapan Dutta and therefore, these Page No.# 4/8 statements cannot be, by any stretch of imagination, taken as depositions under Section 244 CrPC. Learned counsel for the petitioner submits that provisions of Section 245 CrPC are very clear in as much as it provides for taking of the evidence under Section 244 CrPC before an Order under Section 245 CrPC is passed. Learned counsel has relied on the case of Ajoy Kumar Ghose –Versus- State of Jharkhand & Another reported in (2009) 14SCC 115 wherein the Hon’ble Apex Court has stated at paragraphs- 14 and 15, which is reproduced below for ready reference: “14. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C.. whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, can discharge the accused at any previous stage of the case, if he finds the charge to be groundless. 15. Essentially, the applicable Sections are Section 244 and 245 Cr.P.C., since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) Cr.P.C. or to summon its witnesses under Section 244(2) Cr.P.C. This did not happen and instead, the accused proceeded to file an application under Section 245(2) Cr.P.C., on the ground that the charge was groundless.” 5. The learned counsel also relies on the case of Sunil Mehta & Another – Versus- State of Gujarat & Another reported in (2013) 9SCC 209 wherein the Hon’ble Apex Court has laid down that the power to discharge under Page No.# 5/8 Section 245 CrPC can be exercised only after taking all the evidence that is referred to in Section 244 CrPC. In view of the above, the learned counsel states that the matter needs to be remanded back to the learned court below for proceeding in accordance with law. 6. Learned counsel has also contended that he had filed an appeal against the Order of the JMFC being registered as Criminal Appeal 5/2024 before the learned Sessions Judge, Dimapur. However, the said appeal was also dismissed by the learned Sessions Judge by an Order dated 25.10.2024 basing on the same grounds as taken by the learned JMFC in the Order dated 31.05.2024. The contention of the petitioner before the learned Sessions Judge with Section 244 CrPC was not taken into consideration by the learned Sessions Judge and, therefore, the petitioner is before this Court praying for a direction to remand back the matter to the learned JMFC, Dimapur for taking up fresh proceedings under Section 244 CrPC and to quash the order of the Sessions Judge dated 25.10.2024. 7. Learned counsel, Mr. Pfosekho Pfotte has appeared on behalf of the respondents/accused persons and has stated that this petition has been filed under the BNSS, 2023 whereas the proceedings before the Trial Court was a proceeding under the CrPC and therefore, the present petition being filed under Section 528 read with Section 438 and 442 of the BNSS is not maintainable. Learned counsel for the respondents/accused persons has also referred to the Enquiry Report dated 21.03.2024 at Annexure-F, wherein the Enquiry Officer has come to the conclusion that the issue pertaining to the gifting of shares to one Mr. Hetoi Awomi had already been resolved during the meeting with Nagaland Medicine Dealers Page No.# 6/8 Association on 02.06.2015 and, therefore, the respondents/accused persons had no reason to forge the said alleged document on 15.06.2015. The respondents/accused persons also refers to their affidavit-in- opposition filed in Crl.Pet 2/2024 and has submitted that the ‘Resolution of Understanding’ dated 02.06.2015 at Annexure-R3 to the affidavit-in- opposition filed by the respondent no. 1 clearly shows that the issue between the parties regarding the transfer of shares to Shri Hetoi Awomi had already been resolved and the Power of Attorney holder of the petitioner is also a signatory in the Resolution. Therefore, the issue of forgery does not arise in the present case. The respondent also refers to the depositions of the complainant/petitioner and one Shri Swapan Dutta which is at page 56 and 57 in the present Crl.Pet 57/2024 and has stated that these depositions are the depositions of the PWs under Section 244 CrPC and therefore, the mandate of Section 244 CrPC has been complied with by the learned Trial Court. It is, therefore, submitted for the respondents/accused persons that there is no infirmity in the impugned judgment dated 31.05.2024 or the Order dated 25.10.2024. He has, therefore, prayed that the petition may be dismissed. 8. This Court has considered the submissions of the parties and perused the records before this Court as well as the scanned copy of the LCR in CR 12/2022 from the court of the Judicial Magistrate (First Class), Dimapur. From the records of the JMFC, Dimapur, it is seen that the court had taken cognizance of the case under Section 468/471/420/506/341 IPC. On that day, the learned court had received the list of PWs and accordingly, examined them under Section 200 CrPC. Thereafter, there is no record to show that the requirements of Section 244 CrPC have been complied with Page No.# 7/8 as the statements recorded under Section 200 CrPC cannot be said to be the evidence of the prosecution under Section 244 CrPC. 9. The directions of the Hon’ble Apex Court as given in the case of Ajoy Kumar Ghose (supra) and Sunil Mehta & Another –Versus- State of Gujarat & Another (supra) relied upon by the petitioner is very clear regarding the legal position that the evidence of the prosecution has to be recorded and opportunity given for cross-examination before the accused can be discharged under Section 245 CrPC. More so, in a case like the present one when the allegation is one of forgery under Section 468 IPC, without examining the notary who had registered the alleged forged document dated 15.06.2015 and without examining the hand-writing expert the learned Trial Court could not have arrived at a conclusion that the charge against the accused persons were groundless. 10. In respect of the maintainability of the petition it is seen that the present petition was filed on 09.12.2024, by which time the BNSS, 2023 had come into force in the country. Even though the proceedings of the learned Court below were under IPC and the CrPC, the present petition being filed under the BNSS is maintainable. In view of the above observations and in view of the law as laid down by the Hon’ble Apex Court, the present petition is disposed of by remanding back the matter to the learned Judicial magistrate (First Class), Dimapur to continue with the proceedings in accordance with the provisions of the CrPC by following the requirements of Section 244 before passing an Order under Section 245 CrPC. Consequently, the Order dated Page No.# 8/8 25.10.2024 passed by the Principal Sessions Judge, Dimapur in Criminal Appeal 5/2024 is also set aside. 11. The case is returned to the file of the learned JMFC Dimapur. The parties are directed to appear before the learned court below on 24.03.2025. The learned JMFC, Dimapur is directed to take up the CR 12/2022 from the stage of Section 244 CrPC. Registry is directed to return the LCR to the learned JMFC, Dimapur along with a copy of this order. JUDGE Comparing Assistant