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Md. Rekibur Rahman vs Yashmine Sultana And Anr on 18 March, 2020

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GAHC010064522020

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

Case No. : Crl.Pet. 276/2020

1:MD. REKIBUR RAHMAN
S/O MAJIBUR RAHMAN, R/O GARIGAON (PAHLANPARA), P.S.-JALUKABRI,
GUWAHATI, DIST-KAMRUP(M), ASSAM, PIN-781014

VERSUS

1:YASHMINE SULTANA AND ANR.
W/O MD. REKIBUR RAHMAN, D/O MD. TAZIM ALI, R/O VILL-PATRAPUR,
F.O-KENDUA, P.S.-BAIHATA CHARIALI, DIST-KAMRUP(ASSAM), PIN-781121

2:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSA

Advocate for the Petitioner : MR. M K BORO

Advocate for the Respondent : PP, ASSAM (R2)

BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY

ORDER

Date : 18-03-2020

Heard Mr. M.K. Boro, learned counsel for the petitioner and Mr. B.J. Dutta, learned
Additional Public Prosecutor for the State of Assam.

The petitioner by this criminal petition preferred under Section 482, Code of Criminal
Procedure, 1973 (CrPC), has sought to invoke the inherent power of this Court seeking
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setting aside and quashing of an order dated 11.02.2020 passed by the Court of learned Sub-

Divisional Judicial Magistrate (M), Rangia in complaint case, C.R. No. 12 C/2020 and an order
dated 05.03.2020 passed by the Court of learned Additional Sessions Judge, Kamrup at
Rangia in Criminal Revision No. 07/2020.

The relevant facts, in brief, leading to the institution of this petition can be exposited
as follows : the petitioner and the respondent no. 1 got married on 31.08.2018 by registering
the marriage before the Kazi and thereafter, performing marital rituals socially as per Muslim
customary laws. After the marriage, they started their conjugal life at the matrimonial house
at Pahlanpara, Garigaon, Guwahati. Dispute started surfacing between them immediately
thereafter and since 10.06.2019, the respondent no. 1 leaving the matrimonial house, started
to live at her parental house. Allegations and counter allegations are made by the parties
against each other, which need not be adverted to in this order.

It transpires that on 04.02.2020, the respondent no. 1 had filed a complaint case
before the Court of learned Sub-Divisional Judicial Magistrate, Kamrup, Rangia for commission
of an offence under Section 406, Indian Penal Code (IPC) and the said complaint has been

registered and numbered as C.R. Case No. 12 C/2020. A prayer was also made for issuance of
a search warrant under Section 93, CrPC for recovery of stridhan articles and other
documents of the respondent no. 1 from the house of the petitioner, who has been arrayed
as the accused in the said complaint case. A list of stridhan articles and other documents was
annexed to the said complaint, which is also enclosed in this petition at page no. 18. After
examination of the complainant i.e. respondent no. 1 under Section 200, CrPC and another
witness under Section 202, CrPC, the learned Magistrate had taken cognizance of an offence
under Section 406, IPC by the order dated 11.02.2020 and issued summons for appearance
of the petitioner. Upon consideration of the materials made available, the learned Magistrate
deemed it fit to issue a search warrant for recovery of the stridhan articles and other
documents of the respondent no. 1, as per the list at page no. 18, on the ground that there
was possibility that the petitioner might damage the same.

Aggrieved by the said order dated 11.02.2020, the petitioner had preferred a revision
petition under Section 399, CrPC before the Court of learned Sessions Judge, Kamrup at
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Rangia which has been registered as Criminal Revision No. 07/2020. The learned Additional
Sessions Judge, Kamrup by order dated 05.03.2020, had admitted the revision petition by
issuing notice to the respondent no. 1 herein. It was observed that the prayer of stay of the
order of issuance of search warrant for recovery by the learned Magistrate, would be
considered on the returnable date i.e. 24.04.2020.

It is submitted on behalf of the petitioner in this petition that the issuance of search
warrant by the learned Magistrate was made on the mere asking of the respondent no. 1 on
the basis of a list annexed to the complaint petition without any prima facie evidence as
regards purchase of stridhan articles prior to the marriage. It is averred in the petition that
the petitioner married the respondent no. 1 without taking any stridhan articles from the
family of the respondent no. 1 and accepted her only in one pair of wearing apparels.

In the order dated 11.02.2020, no reason had been recorded by the learned Court
which had enable it to arrive at a prima facie satisfaction that if a search warrant was not
issued on that day, there was every possibility that the stridhan articles and other documents
mentioned in the list, would be damaged by the accused.

It is submitted by Mr. Dutta that as the matter of legality and validity of the order
dated 11.02.2020 itself is under consideration of the learned Additional Sessions Judge,
Kamrup, Rangia in Criminal Revision No. 07/2020 with the admission of the criminal revision
petition for hearing, it would be in the fitness of things that the same shall be considered by
the said Court itself as the matter for stay of the operation of the search warrant is posted for
consideration on 24.04.2020. Mr. Boro, learned counsel for the petitioner has endorsed the
said submission of Mr. Dutta.

Upon consideration of the facts projected on behalf of the petitioner in this petition
and taking into consideration the submission of the learned counsel for the parties, I am of
the considered view that the legality and correctness of the order dated 11.02.2020 shall be
gone into by the learned Court of Additional Sessions Judge, Kamrup, Rangia in Criminal
Revision No. 07/2020, instead of any consideration of the said issue by this Court as the
matter is posted on 24.04.2020 for the said purpose before the said Court which has called
already for the LCR.

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Accordingly, this petition is disposed of with the direction to the learned Court of
Additional Sessions Judge, Kamrup, Rangia to consider the matter of stay of the operation
and/or execution of the search warrant issued by the learned Magistrate on 11.02.2020 as
regards recovery of the stridhan articles and other documents, as per the list annexed by the
respondent no. 1. It is deemed appropriate in the interest of justice, that till such
consideration is made on 24.04.2020, the operation of the order dated 11.02.2020 in so far
as the execution of the search warrant is concerned, be kept in abeyance and it is accordingly
done.

With the above observations made and directions given above, this criminal revision
petition stands disposed of.

JUDGE

Comparing Assistant

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