Afrid Ali @ Raja vs Atowar Rahman And Anr
2022 Latest Caselaw 2386 Gua

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GAHC010008932022




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

                                  Case No. : Crl.Pet./57/2022

            AFRID ALI @ RAJA
            S/O ALIMUDDIN ALI
            R/O UZAN BAZAR, SATPUKHURI
            P.S. LATASIL
            DIST.KAMRUP (M), ASSAM



            VERSUS

            ATOWAR RAHMAN AND ANR
            S/O LATE HAZI DUDU SEIKH
            R/O APCC ROAD, HOUSE NO. 28/A
            OPPOSITE BANI MANDIR
            HEDAYATPUR, P.S. LATASIL
            DIST.KAMRUP (M), ASSAM.

            2:THE STATE OF ASSAM
             REP. BY THE PP
            ASSA

Advocate for the Petitioner   : MS. A. MEDHI

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

                                       ORDER

Date : 20.07.2022

Heard Ms. A. Medhi, learned counsel for the petitioner. Also heard Ms. S. Khanikar, learned counsel for the respondent no.1 and Mr. Bankim Sarma, learned APP appearing for the State respondent no.2.

2. By filing this application under section 482 Cr.P.C., the petitioner, who is an accused in Latasil P.S. Case No. 198/2019 under section 438/34 IPC corresponding to PRC Case No. 1477/2020, which is tried as Sessions Case No. 145/2021, has prayed for quashing of the said criminal proceeding.

3. The said proceeding was initiated upon lodging of an FIR dated 28.06.2019 by one Atowar Rahman, who had informed the Officer-in-Charge of Latasil P.S. that on the same morning, at about 2:40 to 2:45 AM, his neighbors had informed him and his family members that fire had broken out on his vehicle bearing registration no. AS-01-BV-0054 (white colour Renault Lodgy) and he along with his wife rushed outside and found the vehicle was burning completely on flame. The informant rang the fire brigade and they came and extinguished the fire. Thereafter, the informant had immediately looked at the CCTV footing and from the CCTV camera footing, it was apparent that some miscreants had done the incident. Accordingly, the informant had handed over the CCTV camera footing to the police for taking action. Thus, the hereinbefore referred police case was registered.

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4. After investigation, the I/O had submitted had charge-sheet against the petitioner as well as others, bearing charge-sheet no. 53/2019 dated 12.09.2020.

5. It appears from the order dated 22.04.2021 passed by the learned Chief Judicial Magistrate, Kamrup (Metropolitan), Guwahati that the Court found the case exclusively triable by the Court of Sessions and therefore, committed the case for trial to the Court of learned Sessions Judge, Kamrup (Metropolitan), Guwahati. Thereafter, by order dated 16.12.2021, the learned Additional Sessions Judge No.2, Kamrup (Metropolitan), Guwahati had framed charges against the petitioner and another co-accused of having committed the offence punishable under sections 438/34 IPC. The charges were read over and explained to the petitioner and the co-accused, to which they pleaded not guilty and claimed to be tried.

6. The present criminal petition was filed on 11.01.2022. Scanned copy of the LCR has been called for and the same is received and perused.

7. The learned counsel for the petitioner has referred to the ground nos. (A) to (J) of this petition and it was submitted that even if the contents of the FIR is accepted at the face value, that does not disclose commission of any prima facie offence and that the ingredients of offence under sections 438/34 IPC were not present. It is further submitted that charges were mechanically framed without discussion of any incriminating materials against the petitioner and therefore, no case is made out against the petitioner. The learned counsel for the petitioner has also submitted that in the FIR, it has been mentioned that Page No.# 4/11

CCTV footage has been handed over to the police and therefore, she submits that the CCTV footage be called for and examined by the Court to find out if the petitioner is anyway involved in the present case in hand. It is submitted that without discussion of any material available against the petitioner, framing of charge itself is not sustainable in law. It was also submitted that the scooty, which was recovered, belonged to the other co-accused and that the petitioner is not involved in the offence in question. Therefore, it is submitted that continuation of trial would cause harassment to the petitioner and accordingly, it is prayed that the proceeding against the petitioner be quashed.

8. Opposing this application, the learned counsel for the respondent no.1 has submitted that as per the investigation carried out so far, there are materials available against the petitioner of commission of the offence and therefore, no case is made out for quashing of the criminal proceeding against the petitioner. The learned APP has also supports the contention of the learned counsel for the respondent no.1.

9. On examination of the materials available on record, it prima facie appears that there exists incriminating materials against the petitioner. As the trial is proceeding, the Court reserves any comment on the nature of evidence available as it may cause prejudice either side when the trial is taken up. There exists another reason for not disclosing the materials available against the petitioner in this order, which is an apprehension in the mind of the Court that if the nature of evidence collected by the prosecution against the petitioner is disclosed, it is quite possible that the petitioner may influence the witnesses and fair trial would be scuttled.

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10. The law regarding quashing of proceedings under section 482 Cr.P.C. is very much settled by catena of judgments both by the Supreme Court of India as well as by this Court. It is well established that the power to quash proceeding should be used sparingly and that should be after some circumspection. It should only be exercised to see that the process of law is not abused or misused. The learned counsel for the petitioner has not been able to show any authority on the point that at the stage of considering quashing of criminal proceeding, including the complaint/FIR or charge-sheet, that the High Court in exercise of power under section 482 Cr.P.C. would have the jurisdiction to embark upon an enquiry as to the probability, reliability or the genuineness of the allegations made therein. In the considered opinion of the Court, the inherent power under section 482 Cr.P.C. envisages three circumstances under which inherent jurisdiction may be exercised, firstly, to give effect to the Code of Criminal Procedure, secondly, to prevent abuse of the process of any Court, and thirdly, to otherwise secure the ends of justice. The rule of inherent power appears to be derived from the maxim of "Quadolex aliquid alicui concedit, concedere videtur id sine quo ipsa, ess uon potest ", which means that when the law gives a person anything, it gives him also all those thing without which the thing itself cannot exist. Thus, while exercising the power under section 482 Cr.P.C., the High Court normally not function as a Court of appeal or revision. The inherent power of the Court is to be exercised for the purposes of " ex deito justitiae", i.e. to do real and substantial justice for which the Court exists.

11. It would be relevant to refer to the decision of the Supreme Court of India in the case of Janta Dal v. H.S. Chowdhary, (1992) 4 SCC 305, wherein the Page No.# 6/11

Court has observed as under:

131. Section 482 which corresponds to Section 561A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim "Quadolex a liquid alicia concedit, conceder videtur id sine quo ipso, ess uon protest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.

132. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."

12. It would be relevant to refer to the decision of the Supreme Court of India in the case of State of Haryana & Ors. Vs. Bhajanlal, 1992 Supp (1) SCC 335, wherein it has been observed as follows:

"102. ...... In the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulates and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under Page No.# 7/11

an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(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."

13. It would also be relevant to refer to the decision of the Supreme Court of India in the case of Indian Oil Corporation Vs. NEPC India Ltd., reported in (2006) 6 SCC 736, wherein power of the Court under section 482 Cr.P.C. relating to quashing of complaint and criminal proceeding have been summarized, is quoted below:

"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692, State of Haryana Page No.# 8/11

vs. Bhajanlal, 1992 Supp (1) SCC 335, Rupan Deol Bajaj vs. Kanwar Pal Singh Gill, (1995) 6 SCC 194, Central Bureau of Investigation v. Duncans Agro Industries Ltd., (1996) 5 SCC 591, State of Bihar vs. Rajendra Agrawalla, (1996) 8 SCC 164, Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259, Medchl Chemicals & Pharma (P) Ltd. v.

Biological E. Ltd., (2000) 3 SCC 269, Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168, M. Krishnan vs Vijay Kumar, (2001) 8 SCC 645, and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122. The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the Page No.# 9/11

mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP, (2000) 2 SCC 636, this Court observed:

"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

14. Therefore, the Court does not find any necessity to convert itself to a trial Court and examine the CCTV footage to find out whether any substantive Page No.# 10/11

evidence against the petitioner is available or not. The prosecution found sufficient incriminating materials against the petitioner, on which charge-sheet is based. Moreover, the learned Sessions Court, upon committal of the matter for trial, had prima facie examined the charge-sheet and found it to be a fit case for trial. Furthermore, it cannot be said that upon reading of the FIR or the contents of the charge-sheet that no cognizable offence can be said to have been committed. Under such circumstances, the High Court in exercise of power under section 482 Cr.P.C., ought not to substitutes its wisdom on the jurisdiction to be exercised by the learned trial Court, which had found material to proceed with the trial.

15. As already indicated above, from the materials available in the case diary, it cannot be said that absolutely no case is made out against the petitioner and therefore, the Court has no material to also presume that the process of trial would cause any undue hardship or the petitioner would suffer any prejudice if the trial is allowed to proceed on the basis of materials available on record.

16. The Court is of the further considered opinion that none of the criteria, which are indicated in the hereinbefore referred decision of the Supreme Court of India, are found to be attracted in the present case, warranting quashing of the entire criminal proceeding against the petitioner.

17. In view of the discussions recorded above, the Court does not find any merit in the present criminal petition for quashing of the criminal proceedings of Sessions Case No. 145/2021 pending for trial in the Court of learned Additional Page No.# 11/11

Sessions Judge, Kamrup (Metropolitan), Guwahati, arising out of Latasil P.S. Case No. 198/2019. Accordingly, this criminal proceeding is dismissed.

18. Accordingly, there would be no impediment for the learned trial Court, i.e. the Court of learned Additional Sessions Judge No.2, Kamrup (Metropolitan), Guwahati to proceed with the trial.

JUDGE

Comparing Assistant