Gauhati High Court
Page No.# 1/ vs Bicky Khan And 2 Ors on 24 February, 2026
Page No.# 1/10
GAHC010010492015
2026:GAU-AS:2767
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./87/2015
SIBO PRASAD CHOUDHURY and 5 ORS
S/O LATE SISIT KUMAR CHOUDHURY, R/O ASHOK NAGAR VILL. , P.O. and
PS. MAKUM, DIST. TINSUKIA ASSAM
2: TILESWAR GOGOI
S/O SRI KUNDAL GOGOI
R/O MAKUM PURNAGAR
P.O. and P.S. MAKUM
DIST. TINSUKIA
ASSAM.
3: RAJIB CHETIA
S/O SRI CHANDRA CHETIA
R/O VILL. DINJOYEE
P.O. and P.S. CHABUA
DIST. TINSUKIA
ASSAM.
4: JIBAN TAYE
S/O SRI DIBIRAM TAYE
R/O VILL. DHAIBARI
P.S.NITAIPUKHURI
DIST. SIVASAGAR
ASSAM.
5: TUKRESWAR CHETIA
S/O LATE SUKRESWAR CHETIA
R/OVILL. NIZ MAKUM GAON
P.O. and P.S. MARGHERITA
DIST. TINSUKI
Page No.# 2/10
ASSAM.
6: NILAKANTA BORA
S/O SRI MADHURAM BORA
R/OVILL. JELINGITUP
BHOAMUKH
DIST. JORHAT
ASSAM
VERSUS
BICKY KHAN and 2 ORS
S/O LATE AMIR KHAN
2:SMTI JYOTSNA BEGUM
W/O LATE AMIR KHAN
BOTH ARE R/ONO. 2
LAZUM GAON
MARGHERITA
P.O. MARGHERITA
DIST. TINSUKIA
ASSAM.
3:THE STATE OF ASSA
Advocate for the Petitioner : MR.K AGARWAL, MR.R J BARUA
Advocate for the Respondent : MR.A K DUTTAR-1 and 2, MR.B PURKAYASTHA(R-1 & 2),MR.A
K BARPUJARI(R-1 & 2),MR.R P KAKOTI(R-1 & 2),PP, ASSAM
Linked Case : I.A.(Crl.)/567/2022
BICKY KHAN AND ANR
S/O LATE AMIR KHAN
2: SMTI JYOTSNA BEGUM
W/O LATE AMIR KHAN
BOTH ARE R/ONO. 2
LAZUM GAON
Page No.# 3/10
MARGHERITA
P.O. MARGHERITA
DIST. TINSUKIA
ASSAM.
VERSUS
SIBO PRASAD CHOUDHURY and 6 ORS
S/O LATE SISIT KUMAR CHOUDHURY
R/O ASHOK NAGAR VILL.
P.O. and PS. MAKUM
DIST. TINSUKIA ASSAM
2:TILESWAR GOGOI
S/O SRI KUNDAL GOGOI
R/O MAKUM PURNAGAR
P.O. and P.S. MAKUM
DIST. TINSUKIA
ASSAM.
3:RAJIB CHETIA
S/O SRI CHANDRA CHETIA
R/O VILL. DINJOYEE
P.O. and P.S. CHABUA
DIST. TINSUKIA
ASSAM.
4:JIBAN TAYE
S/O SRI DIBIRAM TAYE
R/O VILL. DHAIBARI
P.S.NITAIPUKHURI
DIST. SIVASAGAR
ASSAM.
5:TUKRESWAR CHETIA
S/O LATE SUKRESWAR CHETIA
R/OVILL. NIZ MAKUM GAON
P.O. and P.S. MARGHERITA
DIST. TINSUKI
ASSAM.
6:NILAKANTA BORA
S/O SRI MADHURAM BORA
R/OVILL. JELINGITUP
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BHOAMUKH
DIST. JORHAT
ASSAM.
7:THE STATE OF ASSAM
REPRESENTED BY PP
ASSAM
------------
Advocate for : MR. A K DUTTA
Advocate for : MR K AGARWAL appearing for SIBO PRASAD CHOUDHURY and 6
ORS
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
JUDGMENT & ORDER
Date of Hearing : 19.02.2026
Date of Judgment: 24.02.2026
Heard Mr. K. Agarwal, learned Senior Counsel assisted by Ms. P. Neog, learned
counsel for the petitioners. Also heard Mr. A. K. Dutta, learned counsel appearing for the
respondent nos. 1 & 2 and Mr. K. K. Parasar, learned Addl. P.P. for the State.
2. This is an application filed under Sections 397 and 401 read with Section 482 of
the Criminal Procedure Code, 1973, assailing the Judgment and Order dated 19.02.2015,
passed by the learned Sessions Judge, Tinsukia, in Criminal Appeal No. 62(4)/2013,
setting aside the Judgment and Order dated 27.08.2013, passed by the learned SDJM,
Margherita in G.R. Case No. 206/07 and upholding the Judgment dated 30.04.2011,
passed by the learned SDJM, Margherita in GR Case No. 206/07 with certain
modification and thereby, sentencing them to pay a fine of Rs. 1,000/- (Rupees One
Thousand) each, under Section 166/34 IPC in default of payment of fine, Simple
Imprisonment for 3(three) months, under Section 166/34 IPC and sentencing them to
undergo Rigorous imprisonment for 3(three) years and to pay a fine of Rs. 1,000/-
(Rupees One Thousand) each, in default of payment of fine, further Rigorous
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Imprisonment for 1(one) month, under Section 325/34 IPC.
3. The factual matrix leading to the arising of the instant revision petition is
summarized herein below: –
(a) The respondent no. 2 (informant) lodged an FIR dated 21.04.2007, before the
Officer In-charge, Margherita Police Station alleging, inter alia, that on 16.04.2007, one
Shri Sibu Prasad Choudhury, ASI of Margherita Police Station along with few other
constables of the said said Police Station had severely bitten up the informant’s son,
namely, Biki Khan, while he was enjoying Bihu at Margherita Central Field Bihutoli,
whereby, the aforesaid Biki Khan got serious injuries.
(b) On receipt of the FIR, the Officer In-charge, Margherita Police Station registered
Margherita P.S. Case No. 57/2007, under Sections 325/34 of the IPC against the
petitioners.
(c) After completion of the investigation, final report vide No. 25/07 dated 01.06.2007
was filed before the SDJM, Margherita. The aforesaid SDJM, Margherita, vide order
dated 07.08.2007, after recording the statement of the informant, directed the Officer In-
charge of Margherita Police Station to reinvestigate the matter and submit a report.
Accordingly, after reinvestigation, the police submitted charge-sheet against the
petitioners under Sections 166/325 IPC.
(d) After appearance of the petitioners before the learned SDJM, Margherita, charges
were framed against the petitioners under Sections 166/325 IPC. However, during the
trial, on 01.09.2009, at the stage of evidence, the learned SDJM, Margherita, altered the
charge and framed charge under Sections 166/325/34 of the IPC against the petitioners.
(e) During the trial, the prosecution examined 10(ten) witnesses and the statements of
the petitioners were recorded under Section 313 Cr.P.C. After hearing the parties and
considering the materials on record, the learned SDJM, Margherita, vide his Judgment
dated 30.04.2011, acquitted the petitioners under Sections 325/34 IPC. However, the
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learned SDJM, Margherita, found the petitioners guilty under Sections 166/34 IPC and
accordingly, sentenced them to pay a fine of Rs. 1,000/- each, in default 3(three) months
of Simple Imprisonment under Section 166 IPC.
(f) Being aggrieved by the aforesaid Judgment dated 30.04.2011, passed by the learned
SDJM, Margherita, the petitioners preferred an appeal before the learned Sessions
Judge, Tinsukia, which was registered as Criminal Appeal No. 11(2)/2011.
(g) The learned Appellate Court, upon hearing the parties and considering the materials
available on record, vide Judgment dated 01.11.2011, allowed the appeal by remanding
the case for fresh adjudication. The learned Appellate Court, while passing the aforesaid
judgment dated 01.11.2011, also made an observation that the Trial Court is at liberty to
examine further material witness/witnesses also other than Shri Mintu Pradhan.
(h) On such remand, the learned Trial Court issued summons to the aforesaid Mintu
Pradhan to be examined under Section 311 Cr.P.C., fixing 28.12.2011. Subsequently, the
aforesaid Mintu Pradhan was examined on 21.03.2012. After examination of the
aforesaid PW-11, Mintu Pradhan, the respondent no. 2 filed an application under Section
311 Cr.P.C., with a prayer to examine more witnesses in the case. The learned SDJM,
vide it’s order dated 18.05.2012, rejected the aforesaid prayer of the respondent no. 2
and against the aforesaid order dated 18.05.2012, the respondent no.2 preferred a
revision petition before the Hon’ble Gauhati High Court. The Hon’ble Gauhati High
Court, after hearing the parties and considering the materials on record, vide order dated
07.02.2013, dismissed the aforesaid criminal revision petition.
(i) Thereafter, the learned SDJM, Margherita, upon hearing the parties, came to a
conclusion that the prosecution had failed to bring home the guilt of the petitioners
levelled under Section 325/166/34 of IPC and accordingly, vide Judgment and Order
dated 27.08.2013, passed in GR Case No. 206/2007, acquitted all the petitioners from
the charges under Section 325/166/34 IPC.
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(j) Being aggrieved by the aforesaid Judgment & Order dated 27.08.2013, acquitting
the petitioners, the respondent nos. 1
& 2 preferred an appeal in the Court of learned Sessions Judge, Tinsukia, under Section
372 of Cr.P.C. The aforesaid appeal was registered and numbered as Criminal Appeal
No. 62(4)/2013. The learned Sessions Judge, Tinsukia, upon hearing the parties, came to
the conclusion that the Judgment dated 30.04.2011, passed by the learned SDJM,
Margherita, in GR Case No. 206/2007, convicting the petitioners under Sections 166/34
IPC and having found no irregularity or illegality or infirmity in the aforesaid judgment,
set aside the Judgment and Order dated 27.08.2013, passed by the learned SDJM,
Margherita.
(k) Accordingly, vide Judgment dated 19.02.2015, passed in Criminal Appeal No.
62(4)/2013, the learned Sessions Court, Tinsukia, upheld the judgment of the learned
SDJM, Margherita, dated 30.04.2011 with a slight modification that the petitioners have
been found guilty under Sections 166/34 IPC and they were sentenced to pay a fine of
Rs. 1,000/- each, in default of payment of fine, Simple Imprisonment of 3(three) months,
under Sections 166/34 IPC. The learned Sessions Judge, Tinsukia, had also found that
petitioners guilty under Sections 325/34 IPC and accordingly, the petitioners were
sentenced to undergo Rigorous Imprisonment for 3(three) years and to pay a fine of Rs.
1,000/- only each, in default of payment of fine further Rigorous Imprisonment of
1(one) month.
(l) Being aggrieved and dissatisfied with the Judgment and Order dated 19.02.2015,
passed in the aforesaid Criminal Appeal No. 62(4)/2013 by the learned Sessions Judge,
Tinsukia, the petitioners have filed the instant criminal revision petition.
4. Mr. K. Agarwal, learned Senior Counsel, at the very beginning submitted that
though he has several grounds to argue his case on merit, he would like to argue on a
procedural mistake apparently committed by the learned Sessions Judge, Tinsukia, in
passing the Judgment & Order dated 19.02.2015.
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5. The learned Senior Counsel submits that the learned Sessions Judge, Tinsukia,
while setting aside the Judgment and Order dated 27.08.2013, passed by the learned
SDJM, Margherita, in GR Case No. 206/2007, acquitting the petitioners, upheld the
Judgment dated 30.04.2011, passed by the learned SDJM, Margherita, acted illegally on
the face of the record as he had exceeded his jurisdiction. He submits that the Judgment
dated 30.04.2011, passed by the learned SDJM, Margherita, was set aside by the learned
Sessions Judge, Tinsukia, vide it’s Judgment and Order dated 01.11.2011, passed in
Criminal Appeal No. 11(2)/2011 and remanded the case for fresh adjudication granting
liberty to examine further material witnesses. He submits that since the Judgment dated
30.04.2011 had already been set aside and therefore, non-existent in the eyes of law, the
same could not have been considered by the learned Sessions Judge, Tinsukia, by
upholding the same. He submits that the learned Sessions Judge, Tinsukia, was only
required to looked into and examine the merits of the Criminal Appeal No. 62(4)/2013,
which was filed assailing the Judgment and Order dated 27.08.2013. Therefore, he
submits that rather than considering the legality of the Judgment and Order dated
27.08.2013, passed in GR Case No. 206/2007, by examining the merit of a non-existent
Judgment & Order dated 30.04.2011, passed by the learned SDJM, Margherita in GR
Case No. 206/2007, the learned Sessions Judge, Tinsukia, had committed a grave error
and has gone beyond his jurisdiction. Therefore, he submits that on this ground alone,
the instant criminal revision petition should be allowed and remanded to the learned
Sessions Judge, Tinsukia, for fresh consideration and hearing.
6. Mr. A. K. Dutta, learned counsel appearing for the respondent nos. 1 & 2, though
initially objected to such submissions made by the learned Senior Counsel for the
petitioners, later on, he did not disagree to the proposition of remanding the matter back
to the learned Sessions Judge, Tinsukia, due to the procedural lapse committed while
passing the impugned Judgment dated 19.02.2015.
7. Mr. K. K. Parasar, learned Addl. P.P., acknowledged the apparent error committed
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by the learned Sessions Judge, Tinsukia, and is in agreement with the submission and
proposal made by the learned Senior Counsel for the petitioners.
8. This Court, on consideration of the submissions made by the learned counsel
appearing for the respective parties and on perusal of the impugned order dated
19.02.2015, as well as other materials brought on record is of the considered view that
there is a sustainable ground in the argument forwarded by the learned Senior Counsel
appearing for the petitioners.
9. It is apparent that the Judgment dated 30.04.2011, passed by the learned SDJM,
Margherita, was in essence set aside by the learned Sessions Judge, Tinsukia, vide his
order dated 01.11.2011 in Criminal Appeal No. 11(2)/2011, wherein, it has been
specifically stated that the learned Sessions Judge, Tinsukia, was of the opinion that the
case is a fit case for remand of fresh adjudication in the light of the observations made in
the discussion. It was further observed that the learned Trial Court shall be at liberty to
examine further materials/witnesses other than Shri Mintu Pradhan. It was also
mentioned that the appeal was allowed and the case was remanded for fresh trial in the
light of the observations made in the discussion. Therefore, there is no ambiguity that
the Judgment dated 30.04.2011, passed by the learned SDJM, Margherita, in GR Case
No. 206/2007 was, in fact, set aside. So, when the matter was remanded to the learned
SDJM, Margherita, the same was freshly heard and considered and after recording the
statement of the aforesaid Mintu Pradhan (PW-11), under Section 311 Cr.P.C., passed
the Judgment and Order dated 27.08.2013. Therefore, when the matter was heard afresh
by the learned SDJM, Margherita, and upon consideration of the examination of PWs,
including PW-11, i.e., Monti Pradhan, passed the Judgment and Order without
considering the Judgment and Order dated 30.04.2011 and therefore, there was no
occasion for the learned Sessions Judge, Tinsukia, to get the non-existent Judgment and
Order dated 30.04.2011 for reconsideration and examination on merits.
10. In view of the aforesaid discussions and findings of this Court, this Court is of the
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considered opinion that the instant criminal revision petition should be allowed on the
aforesaid ground alone and should be remanded to the learned Sessions Judge, Tinsukia,
to consider and hear the Criminal Appeal No. 62(4)/2013 afresh without taking into
consideration the Judgment and Order dated 30.04.2011, which has already been set
aside by the learned Sessions Judge, Tinsukia, vide it’s order dated 01.11.2011.
11. Accordingly, it is directed that the learned Sessions Judge, Tinsukia, shall hear the
Criminal Appeal No. 11(2)/2011 on its own merit and decide the same within a period of
2(two) months from passing of this order, as the case relates back to an FIR lodged in
the year 2007.
12. Consequently, the instant criminal revision petition is disposed of with the
aforesaid directions.
JUDGE
Comparing Assistant
