The Dlrso Cum Deputy Commissioner vs Jambey Tsering And 3 Ors
2021 Latest Caselaw 2688 Gua

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GAHC010152422021




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

                              Case No. : I.A.(Crl.)/387/2021

            THE DLRSO CUM DEPUTY COMMISSIONER, TAWANG
            GOVERNMENT OF ARUNACHAL PRADESH



            VERSUS

            JAMBEY TSERING AND 3 ORS.
            S/O LATE LAMA DORJEE, R/O GYANKHAR VILLAGE, P.O.-LEMBERDANG
            AND P.S.-TAWANG, ARUNACHAL PRADESH

            2:THE STATE OF ARUNACHAL PRADESH
            THROUGH ITS PUBLIC PROSECUTOR
             GOVERNMENT OF ARUNACHAL PRADESH

            3:THE SUPERINTENDENT OF POLICE
            TAWANG DISTRICT
            ARUNACHAL PRADESH

            4:THE OFFICER-IN-CHARGE
             POLICE STATION
            TAWANG
            ARUNACHAL PRADES

Advocate for the Petitioner   : MS. B CHOWDHURY

Advocate for the Respondent : GA, AP
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                                    :: BEFORE ::
               HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN

                                     ORDER

03.10.2021

Heard Mr. A. Chowdhury, learned counsel for the applicant/respondent no.2 as well as Mr. T.T. Tara, learned counsel representing respondent no.1/petitioner. Also heard Mr. NNB Choudhury, learned Addl. Advocate General, State of Arunachal Pradesh representing respondent nos.2, 3 and 4.

2. By way of this Interlocutory Application, the applicant/respondent no.2 has sought for recalling and vacating the interim order dated 12.08.2021 passed in the Crl. Pet. 17(AP)/2020 (renumbered as Crl. Pet. No.448/2021, on being transferred from Arunachal Pradesh to the Principal Seat at Guwahati).

3. Briefly stated the respondent no.1 herein as petitioner in Crl. Petn./17/2020 preferred a petition under Section 482 CrPC for quashing and setting aside the FIR pertaining to Tawang P.S. Case No.14/2019 under Section 188 IPC read with Section 14 (i) of the Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants Act), 2003 (for short, referred to as "the Act of 2003"), which was registered as Criminal Petition No.17/2020 on the ground that without giving an opportunity to the petitioner of being heard, a criminal case has been filed against him with mala fide intention only to harass the respondent no.1/petitioner, whereas "the Act of 2003" provides certain procedure for eviction of the unauthorised person occupying Government land illegally to be drawn by the Estate Officer.

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4. On the basis of aforesaid petition and after hearing the learned counsel for the respondent no.1/petitioner and the learned counsel for the State, on the day of Motion, this Court vide order dated 16.03.2020 set aside the aforesaid FIR pertaining to the Tawang P.S. Case No.14/2019. The aforesaid order was challenged before the Hon'ble Supreme Court by the present applicant/respondent no.2 (informant/complainant) as the DLRSO-cum- Deputy Commissioner, Tawang and by order dated 30.07.2021, the Hon'ble Apex Court set aside the aforesaid order of this Court of the Single Bench and the matter was remanded back for disposal in accordance with law, holding that the High Court procedurally went wrong in disposing of the Criminal Petition No.17(AP)/2020.

5. In terms of the above direction, this Court restored the Crl. Pet. No.17/2020 and passed an order dated 12.08.2021 while issuing notice to the respondents, after hearing the parties, further investigation of the FIR pertaining to Tawang P.S. Case No.14/2019 was stayed. On the other hand, on the basis of the petition filed by the respondent no.1/petitioner herein before the trial court that the FIR of the aforesaid case has already been set aside by order dated 16.03.2020, the learned trial court by order dated 28.05.2020 has closed the GR Case No.37/2019 arising out of Tawang P.S. Case No.14/2019.

6. At this juncture, the applicant (respondent no.2 in the main Crl. Pet. No.17/2020) herein has come forward with the present application for vacating the order dated 12.08.2021 passed by this Court whereby the investigation has been stayed, whereas, the aforesaid case has already been charge sheeted on 16.03.2020 i.e. prior to passing of the impugned order (12.08.2021) and the respondent no.1/petitioner by suppressing the fact has prayed for closure of the case before the trial court referring to the order dated 16.03.2020, on the basis Page No.# 4/8

of the same, the learned trial court has closed the proceeding which is stated to be bad in law and such interim order dated 12.08.2021 cannot be sustained and liable to be vacated. It is challenged that both the orders dated 16.03.2020 as well as 12.08.2021 have been obtained by suppressing material fact by misleading the court and on that score alone, the petition under Section 482 CrPC filed by the respondent is liable to be quashed.

7. The learned counsel for the applicant/respondent no.2 Mr. A. Chowdhury has vehemently urged before this Court that such an interim order of stay of investigation during the pendency of the petition under Section 482 CrPC, without any cogent reason, is itself not sustainable in terms of the judgment passed in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 SCC OnLine SC 315 wherein it has been held that- " even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order."

8. Highlighting the factual background, it is submitted that the applicant/respondent no.2 herein has lodged the complaint in the capacity of holding additional charge of DLSRO, apart from being a Deputy Commissioner. Thus, the bone of contention of the present petitioner is that the respondent has deliberately obtained the report from trial court by concealing the factum of filing charge sheet.

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9. The learned counsel for the respondent no.1/petitioner has filed their affidavit-in-opposition vehemently disputing the averments made in the application contending inter alia that the as the aforesaid Tawang P.S. Case No.14/2019 has been challenged by filing a petition under Section 482 CrPC raising the plea of mala fide with malice, therefore, the court was of the considered opinion that the prayer made by him has substance and accordingly it was allowed. He further contents that the aforesaid order was passed having heard the fair submission of the learned Government Advocate. The authority of the present petitioner to challenge the aforesaid order is also disputed. So far as regards the filing of charge sheet, it is submitted that the respondent has no knowledge about filing of the charge sheet in Tawang P.S. Case No.14/2019 and has denied the allegation of suppression of material fact on his part. Further, it is submitted that the petitioner failed to show any harm or prejudice that would preclude the proceeding of the Tawang P.S. Case No.14/2019 which was stayed till disposal of the criminal petition and thus prayer for vacating the interim order is devoid of merit, and rather it brings forth the applicant/respondent no.2 machiavellian intention to prosecute the respondent no.1/petitioner.

10. Challenging certain other aspects on merit of the case, it is submitted that the applicant/respondent no.2 misusing his official position and power has lodged the complaint in his official capacity and contended the FIR pertaining to the aforesaid case under section 188 IPC is void, ab initio and the application is liable to be dismissed.

11. Heard the learned Addl. Advocate General Mr. NNB Choudhury who has produced the Case Diary pertaining to the Tawang P.S. Case No.14/2019 and has submitted that the case has already ended in charge sheet.

12. I have considered the rival submission of both the parties and gone Page No.# 6/8

through the matters on record.

13. As the impugned order dated 12.08.2021 pertaining to stay of the investigation is under challenge in the present application, so this Court would confine only to the same and the submissions challenging the merit of the main petition, which is pending before this Court cannot be entertained.

14. Now, going by the background of the case, it is an admitted position that on earlier occasion this Court on the petition so filed by the respondent no.1/petitioner under Section 482 CrPC, set aside the Tawang P.S. Case No.14/2019 on 16.03.2020 and as the aforesaid order quashed and set aside by the Hon'ble Supreme Court, and the Crl.Pet. No.17/2020 was restored to the file, this Court vide order dated 12.08.2021 stayed the investigation of the aforesaid P.S. case on the prayer of the respondent no.1/petitioner herein.

15. The record also reveals that on the basis of the submission of the respondent no.1/petitioner the FIR pertaining to the aforesaid case has been quashed and set aside by order 16.03.2020. The learned trial court has also closed the G.R. Case that was registered on the basis of the Twang P.S. Case No.14/2019. In the meantime, as the order of this Court dated 16.03.2020 was set aside by the Hon'ble Supreme Court, the original case was restored and the investigation of the case was stayed by the impugned order of this Court on 12.08.2021. From the Case Diary as well as the report of the I/O that has been produced before this Court, it reflected that accused Jambey Tsering has violated the prohibitory order of the Estate Officer-Cum-DC, Tawang by constructing a building on the Government land without any allotment order from the Government, the case was registered and after completion of the investigation, charge sheet was filed on 16.03.2020 and the same was forwarded to the Hon'ble Court on 19.03.2020.

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16. I have gone through the Case Diary that has been produced which contain the charge sheet as mentioned above but this Court refrained itself of discussing the other matter in the Case Diary save and except the stage of the investigation. It is an admitted position that the case has been ended in charge sheet dated 16.03.2020 and in view of that matter, while the investigation has already been completed in the year 2020, the stay of investigation in the year 2021 itself became infructuous. It is to be noted that at the time of passing such order, no status report of the case was obtained nor there was any submission in this regard, so the court passed the impugned order primarily on the basis of the submission of the petitioner's side/respondent no.1.

17. So far as regards the contention raised by the applicant's side that the respondent was aware of filing of the charge sheet, the same cannot be brought on record, as the LCR pertaining to the aforesaid case has not been produced as to whether any process was served upon the respondent after receipt of such charge sheet, save and except the order dated 28.05.2020 passed by the learned Magistrate about closure of the case, no any order of the court has been placed on record.

18. So far so good, it is an admitted position that the investigation of the aforesaid Tawang P.S. Case No.14/2019 has been completed as on 16.03.2020 and that being so, the order of staying investigation virtually became inoperative and redundant in the eye of law and facts. The resistance made by the learned counsel for the respondent no.1/petitioner is not sustainable. Although in appropriate case stay of investigation can be granted in a petition under Section 482 CrPC, but while it is brought to the notice of the court though the investigation has been completed, the order to stay of investigation cannot survive.

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19. In view of the matters on record as discussed above, this court is of the opinion that interim order directing stay of investigation has lost its credibility and hence cannot sustain. As a corollary, the interim order dated 12.08.2021 stands vacated.

Interlocutory application is accordingly allowed and disposed of.

Return the case diary.

JUDGE

Comparing Assistant