Sekh Jamir And Others vs Central Bureau Of Investigation ...
2022 Latest Caselaw 2489 Cal

               IN THE HIGH COURT AT CALCUTTA
                 CIVIL APPELLATE JURISDICTION
                          (Appellate Side)


                                             MAT 432 of 2022
                                                    With
                                              CAN 1 of 2022

                                           (Through Video Conference)

                                        Reserved on: 21.04.2022
                                        Pronounced on:02.05.2022


Sekh Jamir and Others
                                                           ...Appellants

                                    -Vs-

Central Bureau of Investigation and Others
                                                       ...Respondents

Present:-

Mr. Kishore Datta, Senior Advocate Mr. Debasish Ghosh, Mr. Nilanjan Adhikari, Mr. Subhajit Roy, Advocates ... for the appellants Mr. Phiroze Edulji, Mr. Samrat Goswami, Advocates ... for the CBI Mr. Anirban Ray, GP Mr. Raja Saha, Mr. Nilotpal Chatterjee, Advocates ... for the State

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

Prakash Shrivastava, CJ:

1. This appeal at the instance of the writ petitioners is directed

against the order of the learned Single Judge dated 21st March, 2022 2 MAT 432 of 2022

whereby WPA 3312 of 2022 has been disposed of with liberty to the

appellants to avail the remedy under Section 482 of Cr.P.C.

2. The appellants had approached the Writ Court with the plea that

the First Information Report (FIR) No. 71 dated 30th March, 2021 was

lodged at Marishda Police Station, Contai sub-division under Section

302/34 of the IPC in respect of the incident which took place on 30th

March, 2021. After investigation, the charge-sheet/final report was filed

on 30th June, 2021 and on 6th December, 2021, ACJM, Contai had

committed the case for trial, but thereafter, the respondent no. 2, CBI,

had lodged the FIR on 21st December, 2021 for same offence, hence, in

the writ petition, the prayer was made to quash the FIR dated 21st

December, 2021.

3. Learned Single Judge in the order under appeal has taken the

view that in the facts of the case, interference under Article 226 of the

Constitution is not warranted especially when an alternative effective

remedy is available to the appellant under Section 482 of Cr.P.C. Hence,

liberty has been granted to avail that remedy.

4. Submission of learned Counsel for the appellant is that the CBI

has registered the second FIR without jurisdiction and that the

appellant cannot challenge the second FIR registered by the CBI in the

proceedings under Section 482 of Cr.P.C. because the second FIR has

not been registered in accordance with the provisions of the Cr.P.C. In

support of his submission, he has placed reliance upon the judgments

of the Hon'ble Supreme Court in the matter of State of Punjab vs.

Davinder Pal Singh Bhullar and Others reported in (2011) 14 SCC

770, in the matter of Gian Singh vs. State of Punjab and Others

reported in (2012) 10 SCC 303 and in the matter of State represented

by Inspector of Police vs. M. Murugesan and Another reported in

(2020) 5 SCC 251 and Madras High Court in the matter of R.

Sankarasubbu vs. The Commissioner of Police, Egmore, Chennai

and Others reported in (2013) 1 CTC 1.

                                         3                    MAT 432 of 2022



5.    Learned    Counsel    for   the   respondent   CBI   has   raised   the

preliminary objection that the writ petition is liable to be dismissed on

the ground of suppression of material and committing fraud upon the

Court by filing the incomplete charge-sheet and suppressing the

relevant page of the charge-sheet, he submits that no fresh FIR has

been registered and the CBI is carrying out the investigation as per the

dictum of the full bench judgment of this Court dated 19th August, 2021

passed in WPA(P) 142 of 2021 in the case of Susmita Saha Dutta vs.

The Union of India and Others and connected petitions and that the

CBI in the supplementary affidavit dated 14th March, 2022 filed in CAN

No. 5 of 2022 in Susmita Saha Dutta (supra) has duly disclosed this

fact and this Court in the proceedings dated 14th March, 2022, in that

case, has taken the facts on record. He submits that no second FIR has

been registered and that the appellant has remedy under Section 482 of

Cr.P.C.

6. We have heard the learned Counsel for the parties and perused

the record. A complete charge-sheet has been placed before us by the

respondent no. 2 which reveals that the appellant had not filed the last

page of the charge-sheet which clearly mentions about permission to

take up further investigation under Section 173(8) of Cr.P.C. and to

submit supplementary charge-sheet in continuation of investigation in

respect of the rest FIR named and other accused persons, if sufficient

evidence is found as well as if arrest is made in future and obtaining

Chemical Examination Reports from FSL, Kolkata. This apparently

shows that the appellants had not approached the Writ Court with

clean hands, therefore, they are not entitled to any relief in the petition.

7. Referring to the various documents, learned Counsel for the

respondent no. 2 has pointed out that no fresh FIR has been registered

but the FIR has been re-registered with the CBI to undertake further

investigation.

4 MAT 432 of 2022

8. Even otherwise the order of the learned Single Judge reveals that

appellants have not been left remediless. Learned Single Judge has

found that the appellants have alternative effective remedy under

Section 482 of the Cr.P.C. which they can avail, therefore, has found in

the facts of the case that interference in exercise of the jurisdiction

under Article 226 is not warranted. It is settled position in law when the

remedy under Section 482 is available, the High Court should be loath

and circumspect to exercise the jurisdiction under Article 226. The

Hon'ble Supreme Court in the matter of State of H.P. vs. Prithi Chand

and Another reported in (1996) 2 SCC 37 has held:

"13. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When investigating officer spends considerable time to collect the evidence and places the charge- sheet before the court, further action should not be short- circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power. The accused involved in an economic offence destabilises the economy and causes grave incursion on the economic planning of the State. When the legislature entrusts the power to the police officer to prevent organised commission of the offence or offences involving moral turpitude or crimes of grave nature and are entrusted with power to investigate into the crime in intractable terrains and secretive manner in concert, greater circumspection and care and caution should be borne in mind by the High Court when it exercises its inherent power. Otherwise, the social order and security would be put in jeopardy and to grave risk. The accused will have field day in destabilising the economy of the State regulated under the relevant provisions."

5 MAT 432 of 2022

9. Considering the similar issue in reference to exercise of power

under Article 32 of the Constitution when the remedy under Section

482 of the Cr.P.C. was available, the Hon'ble Supreme Court in the

matter of Arnab Ranjan Goswami vs. Union of India and Others

reported in (2020) 14 SCC 12 has held that:

"57. We hold that it would be inappropriate for the Court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR No. 164 of 2020 under investigation at N.M. Joshi Marg Police Station in Mumbai. In adopting this view, we are guided by the fact that the checks and balances to ensure the protection of the petitioner's liberty are governed by the CrPC. Despite the liberty being granted to the petitioner on 24-4-2020, it is an admitted position that the petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. The petitioner must be relegated to the pursuit of the remedies available under the CrPC, which we hereby do. The petitioner has an equally efficacious remedy available before the High Court. We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at N.M. Joshi Police Station in Mumbai which can be considered by the High Court. Therefore, we are of the opinion that the petitioner must be relegated to avail of the remedies which are available under the CrPC before the competent court including the High Court."

10. The view which is taken by the learned Single Judge is duly

supported by the above judgments of the Hon'ble Supreme Court. Since,

alternative efficacious remedy under Section 482 of the Cr.P.C. is 6 MAT 432 of 2022

available which the appellants may avail in accordance with law,

therefore, we are not examining the issue on merit which has been

argued before this Court by referring to several judgments.

11. Hence, for the reasons assigned above we find no ground to

interfere in the order of the learned Single Judge. The appeal is

accordingly dismissed.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE

Kolkata 02.05.2022 ___________ PA (RB)

(A.F.R./ N.A.F.R)