IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE:

SONITPUR AT TEZPUR

PRESENT : Smt. M.R. Sharma

Additional Sessions Judge
Sonitpur, Tezpur

CRIMINAL REVISION NO. 53 (S-3) OF 2013

[Revision under Section 397/399 CrPC against the Order dated
16-08-2013 passed by Smt. B. Kshetry, learned Additional
Chief Judicial Magistrate, Sonitpur, Tezpur, in connection with
C.R. Case No. 56 of 2013.]

1. Musstt. Rahima Khatoon

2. Khalilur Rahman

Both are resident of village Singitali

P.S – Tezpuri, Dist - Sonitpur …. Petitioners

-VERSUS-

1. Ainul Haque,
Resident of Village Singitali
P.S – Tezpuri, Dist - Sonitpur

2. The State of Assam ….. Opposite Parties

A PPEARANCE

For the petitioner : Sri A.K. Saikia, Advocate

For the Opposite Party : Sri H. Serai,

Addl. Public Prosecutor

Date of Hearing : 02-09-2013

Date of Judgment : 02-09-2013

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J U D G M E N T

This Criminal Revision arose on a petition filed

under Section 397/ 399, Cr.P.C. challenging the legality,
propriety and correctness of the order dated 16-08-2013
passed by Smt. B. Kshetry, learned Additional Chief
Judicial Magistrate, Sonitpur, Tezpur, in connection with
C.R. Case No. 56 of 2013.

2. The case of the accused-petitioners, in brief, is

that in C.R. Case No. 56 of 2013, the learned Additional
Chief Judicial Magistrate, Sonitpur, Tezpur, on 01-04-2013
examined the complainant-Respondent No. 1 u/s 200
Cr.P.C. and without any further inquiry u/s 202 Cr.P.C.
took cognizance and offence u/s 447 / 323 / 506 of the
Indian Penal Code against the Revision Petitioner Khalilur
Rahman and Rahima Khatoon, and the Magistrate directed
to issue process against them. It is further alleged in the
Revision Petition that on 16-08-2013, the learned counsels
for the Respondent No. 1 (Complainant) filed a petition
before the learned trial Court to rectify the name of
‘Rahima Khatoon’ instead of ‘Rahela Khatoon’ in the
summons served on her as well as in the original petition.
But the learned Addl. Chief Judicial Magistrate without
hearing the petition, allowed the said petition and passed
order to issue summons to Rahima Khatoon, the present
petitioner No. 1.

3. Being highly aggrieved and dissatisfied with the

impugned order dated 16-08-2013, passed by the learned
trial Court, the petitioners have preferred this present
revision on the following grounds :

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i). That the learned Additional Chief Judicial

Magistrate, Sonitpur, Tezpur has committed
grave error in law and facts while taking
cognizance of the offence against the Revision
Petitioners and hence the order dated
16-08-2013 cannot be sustain in law;

ii). that the learned lower Court has failed to apply

its judicial mind and passed the impugned order
in mechanical way and as such the same is
liable to be interfered by the Revisional
Court ;

iii) that the petition dated 16-08-2013 of the

respondent was vague and indefinite and is not
maintainable in the eye of law as the petition is
not signed and verified by the complainant-
respondent;

iv) that the learned Additional Chief Judicial

Magistrate, Sonitpur, Tezpur should have fix a
date for hearing of both the parties for ends of
justice;

v) that without further inquiry u/s 200 Cr.P.C.

Rahima Khatoon cannot be summoned as an
accused;

vi) that the learned Additional Chief Judicial

Magistrate, Sonitpur, Tezpur on 01-04-2013
found prima facie case against the Revision
Petitioners Khalilur Rahman and Rahela Begum
and not against Rahima Khatoon. As such the
learned Magistrate cannot not revised her own

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order as per provisions of law by passing the

impugned order dated 16-08-2013;

Under the above facts and circumstances, the

Revision Petitioners have prayed to admit this petition and
after hearing the petition also set aside the impugned
order of the learned trial Court below.

4. On perusal of the certified copy of impugned

order and hearing of the learned advocate, I find that it is
a fit case to admit for hearing of the Revision. Hence, the
revision is admitted for hearing.

On going through the Revision Petition, I find

that the records need not be called for, and the case can
be disposed of without the calling of records.

5. In this context, after going through the petition

and after perusing the order sheet and the other
documents enclosed including the Complaint _Petition, the
evidence u/s 200 Cr.P.C. and also the summons as well as
the petition, on which the order was passed against which
this Revision is preferred, I find that once cognizance was
taken by the Court on the 1st Complaint petition where the
complainant has given the name of accused as
Musstt. Rahela Begum and subsequently on being given an
application by the learned counsel that summons should
be sent in the name of not Rahela Begum but Rahima
Khatoon, the same cannot be allowed. More so, when the
said Complaint petition has snot been signed by the
complainant and is without any verification or affidavit, the
learned trial Court by entertaining the said petition and
allowing the same had probably passed order without
applying the judicial mind and so, is not maintainable.

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Once cognizance is taken against an accused in a certain

name without a proper hearing on appearance of the
accused person, the amendment cannot be altered or
amended and summons cannot be issued again in a new
name, address of the accused being the same.

6. For the reasons stated above, the revision

Petition is allowed and the learned trial Court is directed
to proceed as per provisions of law and after appearance
of the accused persons on the summons already issued,
can decide the matter if the complainant so desires.

The Revision Petition is disposed of on contest.

This judgment is given under my hand and the

seal of this Court on this 2nd day of September, 2013.

(M.R. Sharma)
Additional Sessions Judge
Sonitpur : Tezpur

Dictated and corrected by me

And every page bears my signature.

(M.R. Sharma)
Additional Sessions Judge
Sonitpur : Tezpur

Transcribed and typed on dictation by me –

(I. Goswami )
Stenographer