Gauhati High Court
Kailash Sahu vs The State Of Assam And 2 Ors on 4 April, 2022
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GAHC010100572021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./365/2021
KAILASH SAHU
S/O SOBHARAM SAHU
R/O FAKIRA BOSTI
P.S. AND DIST. HOJAI, ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY PP, ASSAM
2:SRI PRAHAD MEHERA
S/O LATE KANAI MEHRA
R/O FAKIRA BOSTI
P.S. AND DIST. HOJAI
ASSAM
3:SMT. SANGITA MEHRA
W/O PRAHAD MEHRA
R/O FAKIRA BOSTI
P.S. AND DIST. HOJAI
ASSAM
PIN-78243
Advocate for the Petitioner : MR. I A TALUKDAR
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 04-04-2022
Heard Mr. I.A. Talukdar, learned counsel for the accused/petitioner and Mr.
D. Das, learned Additional Public Prosecutor, Assam, appearing for the State
respondent No. 1. Also heard Mr. U.C. Rabha, learned counsel appearing for the
respondent Nos. 2 and 3.
2. This petition under Section 482 Cr.P.C. has been filed for setting aside and
quashing the F.I.R. of Hojai P.S. Case No. 292 of 2021 registered under Sections
447/269/270/34 of the IPC and the proceedings arising out of the said F.I.R.,
pending in the Court of the learned Chief Judicial Magistrate, Hojai.
3. The scanned copy of the case record along with the case diary as called
for is placed before the Court.
4. The petitioner's case, precisely, is that the informant/ respondent No. 2
herein lodged an F.I.R. on 28.04.2021 before the Officer-in-Charge, Hojai
Police Station alleging that on 27.04.2021 at about 12 o'clock, midnight, his
wife accused/respondent No. 3 and the accused/ petitioner herein were
involved in bad acts behind the room, where he was sleeping. Being woken
up, the informant/respondent No. 1 stepped out of his house and on
witnessing the aforesaid bad acts, he protested and thereupon, both of them
fled away.
5. Based on the above F.I.R., Hojai P.S. Case No. 292/2021 was registered
and after completion of the investigation, the police laid a charge sheet
against the petitioner and the respondent No. 3 under Sections 447/269/ 270/
34 of the IPC vide order dated 17.07.2021, passed in PRC No. 1061(H)/2021.
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6. Mr. I.A. Talukdar, learned counsel appearing for the accused/ petitioner,
contends that the instant F.I.R. came to be lodged due to misunderstanding
that developed between the informant/respondent No. 2 and the respondent
No. 3, his wife, which has already been resolved and they (husband and wife)
are living under the same roof. Mr. Talukdar vehemently submits that the
informant/respondent No. 2 lodged false F.I.R. as the accused/petitioner
refused to pay him Rs. 15,000/- as loan. Mr. Talukdar has relied on the
judgment of the Hon'ble Supreme Court rendered in the case of Vineet Kumar
and Ors. Vs. State of Uttar Pradesh and Anr., reported in (2017) 13 SCC 369 .
7. Vehemently opposing the petition, Mr. D. Das, learned Additional Public
Prosecutor, submits that as after completion of investigation, the police
submitted charge-sheet and the charges are yet to be considered by the
learned court, there is apparently a prima facie case against the accused/
petitioner and the accused/respondent No. 3 and as such, quashing of the
F.I.R. under Section 482 Cr.P.C. is, perhaps, not permissible on merit.
8. Mr. U.C. Rabha, learned counsel for the respondent Nos. 2 and 3 has
opposed the petition denying any amicable settlements between the parties
as stated by the petitioner and contends that the instant petition is brought at
a premature stage. It is further contended that where charge-sheet has
already been filed, the question of quashing of the F.I.R. does not arise. Mr.
Rabha has relevantly cited thejudgment of the Apex Court rendered in
Manjula Sinha Vs. State of U.P. and Ors., reported in (2007) 12 SCC 503.
9. I have given due consideration to the above submissions made by both
sides. Also perused records.
10. It may pertinently be pointed out that the extraordinary power under
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Section 482 Cr.P.C., the High Court can interfere only when it is satisfied that
it is necessary to prevent abuse of the process of the court and to secure the
ends of justice. The Hon'ble Supreme Court in Vineet Kumar (Supra) observed
as under.
"41. Inherent power given to the High Court under Section 482 CrPC is
with the purpose and object of advancement of justice. In case solemn
process of Court is sought to be abused by a person with some oblique
motive, the Court has to thwart the attempt at the very threshold. The
Court cannot permit a prosecution to go on if the case falls in one of the
categories as illustratively enumerated by this Court in State of Haryana
Vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be
allowed to be converted into an instrument of operation or harassment.
When there are materials to indicate that a criminal proceeding is
manifestly attended with mala fide and proceeding is maliciously
instituted with an ulterior motive, the High Court will not hesitate in
exercise of its jurisdiction under Section 482 CrPC to quash the
proceeding under Category 7 as enumerated in State of Haryana Vs.
Bhajan Lal, which is to the following effect: (SCC p.379, para 102)
"102.(7) Where a criminal proceeding is manifestly attended
with mala fide and/ or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge."
11. In the instant case, the accused petitioner has attributed the alleged
occurrence to a misunderstanding with the respondents No. 2 and 3 and
personal vendetta as the petitioner refused to pay a loan of Rs. 15,000/- to
the informant/ respondent No. 2 with whom he had a cordial relationship and
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further, that the alleged incident has already been amicably settled between
the parties. These grounds cited by the petitioner have been refuted by the
learned counsel for the respondent Nos. 2 and 3 and on the other hand, the
learned counsel for the accused/ petitioner admits that the petitioner has no
any credible evidence to show in support of the aforesaid two pleas cited in
the petition.
12. In Manjula Sinha (supra), the Hon'ble Supreme Court while dismissing a
petition observed as hereinbelow extracted-
" 14. .........................Undisputedly the charge sheet has been filed and the
same was not in question. Charges have also been framed and, therefore,
the question of quashing the FIR does not arise."
13. A perusal of the case record alongwith the case diary reveals that on
17.07.2021, the charge sheet against the accused/petitioner and the
respondent No. 3 was laid under Sections 447/269/270/34 of the I.P.C. under
Section 173 Cr.P.C. Thereafter, on 10.12.2021, the accused/ petitioner
remained absent showingcause through his engaged counsel, which was
allowed fixing 17.03.2022 for appearance. The aforesaid report under Section
173(2) Cr.P.C. purports an interference that the Investigating Officer has
found sufficient material for the trial of the accused/ petitioner and his co-
accused respondent No. 3 in connection with the aforementioned cognizable
offences. The learned trial Magistrate is yet to consider the aforesaid charges
brought against the petitioner and the respondent No. 3 which is exclusively
to the domain of the said court at the present stage of the proceeding.
14. It is further not noticed that the proceeding is attended with mala fides
or maliciously instituted by the husband of the accused/ respondent No. 3
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with anyulterior motive for wreaking vengeance due to personal grudge as
the accused petitioner allegedly refused a private loan to the informant/
respondent No. 2. There is also admittedly no evidence of amicable
settlement of the alleged incident between the parties. Therefore, in the
opinion of this Court quashing of the F.I.R., keeping apart the charge-sheet
and the consequent criminal proceeding does not arise.
15. For the reasons, set forth above, the petition stands dismissed.
Accordingly, the petition stands disposed of.
.
JUDGE
Comparing Assistant
