Himanjan Sarma vs The State Of Assam And 2 Ors
2022 Latest Caselaw 377 Gua

                                                                  Page No.# 1/11

GAHC010227692021




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

                                 Case No. : W.P.(Crl.)/31/2021

            HIMANJAN SARMA
            S/O LATE KARMIDEV SHARMA, R/O HOUSE NO. 12, HEM BARUAH ROAD,
            WARD NO. 4, SANTIPUR, P.O. AND P.S.-MANGALDAI, DARRANG, ASSAM-
            784125



            VERSUS

            THE STATE OF ASSAM AND 2 ORS.
            REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
            ASSAM, DISPUR, GUWAHATI, KAMRUP (M), ASSAM-781001

            2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
            ASSAM
             HOME AND POLITICAL DEPARTMENT
             DISPUR
             GUWAHATI
            ASSAM-781006

            3:THE OFFICER IN CHARGE
             FATASHIL AMBARI POLICE STATION
             FATASHIL AMBARI
             GUWAHATI
            ASSAM-78101

Advocate for the Petitioner   : MR. A K BHUYAN

Advocate for the Respondent : GA, ASSAM
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                                BEFORE
                HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                     ORDER

Date : 07.02.2022

Heard Mr. A. Bhuyan, learned Advocate for the petitioner and Mr. D. Sharma, learned Addl. Senior Government Advocate for the respondents no.1 to 3.

2. At the outset, it may be mentioned that the matter was heard on 03.02.2022 on the prayer for interim relief. It appeared from the previous orders passed in the case that all the respondents were represented by the learned Addl. Senior Government Advocate. However, while dictating this order, it appears from the cause title of the writ petition that a private individual has been arrayed as respondent no. 4 by the learned counsel for the petitioner by hand. However, in the Central Registry, the names and other particulars of only the respondent nos. 1 to 3 are reflected. Therefore, the Addl. Senior Government Advocate may not be appearing for the private respondent. Hence, it is necessary that a notice be issued on the private respondent. Therefore, let a notice returnable on 14.03.2022 be issued on the respondent no. 4. The petitioner shall take steps within 2 (two) days for service of notice on the respondent no. 4 by registered post with acknowledgment due as well by usual process.

3. As the prayer for interim relief is for interim protection with a direction upon the State respondents not to take coercive measures against the petitioner in connection with Fatashil Ambari P.S. Case No. 817/2021 under Page No.# 3/11

Sections 120B/406/409/420/469/34 of the Indian Penal Code (IPC for short), the Court is of the considered opinion that in connection with such a prayer, except for the State, the private respondent need not be heard.

4. For the purpose of this order, it would be sufficient to mention that in the FIR dated 06.12.2021, which was registered as Fatashil Ambari P.S. Case No. 817/2021 under Sections 120B/406/409/420/469/34 IPC, the petitioner is named as a beneficiary of having received over-payment of contractual dues to the extent of Rs.1.10 Crore. In order to avoid burdening the order with detailed submissions made by the respective advocates for both sides, it would suffice to mention that while the learned advocate for the petitioner had submitted that the petitioner was called to do the work after drawing up of contract agreement and the payment for paining work of Assam Cricket Association Stadium and that after due satisfaction of the contract work done and measurements being made by the PWD Authorities, the payment due to the petitioner was released. Nonetheless, on request made by the Assam Cricket Association, the petitioner had also refunded a sum of Rs.50.00 lakh. Thus, it was submitted that there might be a civil dispute, but the petitioner is not a criminal and no crime was done by the petitioner as such the ingredients of the offence under Sections 120B/406/409/420/469/34 IPC was not made out. To sustain his submissions, the learned advocate for the petitioner has referred to the materials available in the writ petition and additional affidavit filed by the petitioner. Accordingly, it is submitted that the petitioner was entitled to interim protection of no coercive action against the petitioner.

5. In support of his submissions, the learned advocate for the Page No.# 4/11

petitioner has placed reliance on the following cases, viz., (i) Order dated 22.11.2021 by Supreme Court of India in SLP (Crl.) 8788/2021 - Param Bir Singh v. The State of Maharashtra & Ors.; (ii) Order dated 26.10.2021 by Supreme Court of India in Crl. Appeal 1285/2021 - Mitesh Kumar Jha v. The State of Karnataka & Ors.; (iii) Order dated 15.02.2019 by Supreme Court of India in Crl. Appeal 238/2019 - Prof. R.K. Vijayasarathy & Anr. v. Sudha Seetharam & Anr.; (iv) Judgment dated 08.08.2019 by Supreme Court of India in Crl. Appeal 834/2017 - The Commissioner of Police & Ors. v. Devender Anand & Ors.; (v) Order dated 09.11.2012 by Gauhati High Court in Crl.Rev. Pet. 140/2005 - Riju Samanta v. The State of Assam & Ors.; (vi) Harshendra Kumar D. v. Rebatilata Koley & Ors., (2011) 3 SCC 351; (vii) Order dated 22.12.2021 by Gauhati High Court in Crl.Pet 796/2021 - Kowstava Buragohain v. The State of Assam & Anr.; (viii) Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors., 2021 SCC OnLine SC 315.

6. Per contra, the learned Additional Senior Government Advocate has opposed the prayer for interim relief. Moreover, by placing reliance on paras 65 and 80 to 82 of the case of Neeharika Infrastructure (supra), it has been submitted that an order in the nature of "no coercive action" was not warranted as the petitioner has the liberty to avail appropriate remedy by approaching this Court under Section 438 of the Criminal Procedure Code (CrPC for short) for a prayer for anticipatory bail.

7. It is seen from the various judgments and orders cited at the Bar by the learned advocate for the petitioner that it is well settled that an FIR can be quashed by the High Court in exercise of power under Article 226 of the Page No.# 5/11

Constitution of India as well as by filing an application for quashing of the FIR under Section 482 CrPC. Therefore, this order is not required to be burdened with discussions on the cases cited because said legal proposition has not been opposed by the learned Additional Senior Government Advocate.

8. Therefore, it is required to be examined whether it would be appropriate for the Court in a composite application filed under Article 226 of the Constitution of India read with Section 482 CrPC to issue an interim order to the effect that "No coercive action" is taken against the petitioner.

9. It is seen that in a case concerning a co-accused in the present case, i.e. Fatashil Ambari P.S. Case No. 817/2021, this Court in the case of Kowstava Buragohain (supra), the co-ordinate Bench of this Court while entertaining a Criminal Petition under Section 482 CrPC, had granted the interim relief of no coercive action to be taken against the petitioner therein till the next date of listing. The other case of Riju Samanta was also one under Section 482 CrPC.

10. In the aforesaid context, it would now be appropriate to quote the para-65, 80, 80(xv) to 80(xviii) of the case of Neeharika Infrastructure (supra), which is as under:-

"65. The aforesaid is required to be considered from another angle also. Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the Page No.# 6/11

evidence may no longer be available. Therefore, in case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr.P.C. being satisfied, he may be released on anticipatory bail by the competent court. Therefore, it cannot be said that the accused is remediless. It cannot be disputed that the anticipatory bail under Section 438 Cr.P.C.

can be granted on the conditions prescribed under Section 438 Cr.P.C. are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged. Still in case a person is apprehending his arrest in connection with an FIR disclosing cognizable offence, as observed hereinabove, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. As observed by this Court in the case of Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC 453, though the High Courts have very wide powers under Article 226, the powers under Article 226 of the Constitution of India are to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre- arrest of the accused persons. It is further observed that in entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 Cr.P.C. proceedings. It is further observed that on the other hand whenever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its powers under Article 226 of the Constitution of India, keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. However, such a blanket interim order of not to arrest or "no coercive steps" cannot be passed mechanically and in a routine manner.

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80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

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xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the Page No.# 8/11

interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/ chargesheet is filed under Section 173 Cr.P.C., while dismissing/ disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) 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.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

11. It is seen that in exercise of power to grant bail, whether under Section 438 CrPC or under Section 439 CrPC, the Court calls for the case diary for the purpose of granting bail and/or for making interim bail absolute.

12. Without the perusal of the case diary, the Court only has the petitioner's version of the incident but not what is disclosed in course of Page No.# 9/11

investigation. In this writ petition, the petitioner has not prayed for bail. If an order of bail is granted, the Court granting bail has the inherent power to impose conditions under which bail has been granted. However, if an order of "no coercive action" is granted in a writ petition, that would be absolutely vague, it may be misinterpreted to mean as if the petitioner cannot even be examined in course of investigation. Therefore, in order to avoid any incorrect understanding of the order granting "no coercive action", following the ratio laid down in the case of Neeharika Infrastructure (supra), it would be appropriate to give liberty to the petitioner to file an appropriate application for pre-arrest bail, if so advised. In this regard, it is clarified that the pendency of this writ petition shall not be a bar for the petitioner to seek statutory remedy of seeking bail in accordance with law.

13. However, considering the concern as expressed by the Supreme Court of India in the herein before cited case of Neeharika Infrastructure (supra) that an order of "no coercive action" has a potential of misinterpretation, the other cases cited by the learned counsel for the petitioner do not come to the aid of the petitioner. Accordingly, Court is inclined to refuse such blanket interim protection to the petitioner.

14. Therefore, in order to ensure that the investigation of the Fatashil Ambari P.S. Case No. 817/2021 is not delayed at this stage, the Court deems it appropriate to pass appropriate orders to call for the case diary and/or scanned copy thereof only after notice is served on the respondent no. 4 and after the writ petition is admitted for hearing.

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15. Nonetheless, although the observations made in this para are not related to adjudication of this case, the Court is inclined to observe as follows:-

a. It has been observed that the normal practice followed in this Court that when a matter is filed under Article 482 CrPC, such matters are listed as a Criminal Petition before the Bench taking up criminal petitions for quashing. In such cases, the State is represented by the learned Public Prosecutor and/or the Assistant Public Prosecutor of the State, as the case may be.

b. However, in this quashing application filed under Article 226 read with Article 482 CrPC, the same is registered as writ petition and the State is represented by the Additional Senior Government Advocate.

c. Para-16 under heading "(C) Representation of State in the High Court"

under Chapter-I of Part-II of the Law Department Manual (commonly called as Legal Remembrancer Manual), relating to Criminal Rules, it is provided that "The Senior or one of the Junior Government Advocates will conduct criminal prosecution in the High Court ." In Part-III of the Law Department Manual, the "Rules for the Government Advocates of the Assam High Court" is provided for. The same appears to be only for the Senior and Junior Government Advocates.

d. In the Law Department Manual, although reference is made for conducting prosecution in criminal matters by the Senior Government Advocate and Junior Government Advocate(s), but it prima facie appears that the Law Department Manual does not deal with the point as to whether the Public Prosecutors and Additional Public Prosecutors Page No.# 11/11

or the Senior Government Advocate and Junior Government Advocate(s) have been assigned the duty to appear in quashing applications presented before the High Court either under Article 226 of the Constitution of India or under Section 482 CrPC.

e. Therefore, in the quest of having clarity in the matter as to whether the quashing applications are to be only conducted by the Senior and Junior Government Advocates or by the Public Prosecutors and Assistant Public Prosecutors, it is deemed appropriate that the State Government be asked to respond as to whether the Public Prosecutors or Assistant Public Prosecutors within the meaning of Section 25 of the CrPC or Senior Government Advocate and Junior Government Advocate(s) should appear for the State before the High Court in quashing applications.

16. Be that as it may, the Registry shall examine as to whether those writ petitions, where prayer is made for quashing the FIR or complaint cases, and/or any other criminal prosecution, etc., be listed before the Bench assigned to adjudicate criminal petitions for quashing and if the proposition finds favour of the Registry, the Registry shall thereafter, place the matter before the Hon'ble The Chief Justice for his kind consideration on the administrative side.

17. Awaiting service of notice on the respondent no. 4 and response by the State, list the matter on 14.03.2022.

JUDGE

Comparing Assistant