Jitu Gogoi vs The State Of Assam And Anr
2022 Latest Caselaw 2458 Gua

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GAHC010140962022




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

                                 Case No. : Crl.Pet./688/2022

            JITU GOGOI
            S/O LATE KUBER GOGOI
            R/O DARIKAPAR NAWJAN, P.O. NAMTIAL, PATHAR, P.S. SIVASAGAR, IN
            THE DISTRICT OF SIVASAGAR, ASSAM, PIN-785640



            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY THE PP, ASSAM

            2:MS. RANJIMA BORAH
            W/O BHASKAR BARUAH

            R/O M.I. ROAD

            P.S. SIVASAGAR
             IN THE DISTRICT OF SIVASAGAR
            ASSAM
             PIN-78564

Advocate for the Petitioner   : MR. M K BORAH

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

                                     ORDER

Date : 25.07.2022

Heard Mr. M.K. Bora, learned counsel for the petitioner. Also heard Mr. D.P. Goswami, learned APP appearing for the State.

2. By filing this application under section 482 Cr.P.C., the petitioner, who is an accused in Sivasagar P.S. Case No. 110/2022 under sections 325/506 IPC corresponding to PRC No. 488/2022 pending for trial before the Court of learned Chief Judicial Magistrate, Sivasagar, has prayed for quashing of the said criminal proceeding.

3. The said proceeding was initiated upon lodging of an FIR dated 07.03.2022 by one Smti. Ranjima Borah, who had informed the Officer-in- Charge of Sivasagar P.S., inter alia, at about 1.00 PM, one Jitu Gogoi, who is an employee of Lachit College had badly assaulted and injured the informant. It was also alleged that the accused and had also threatened the informant to death with sharp weapon, and that the whole incident took place in the office chamber of the Principal and in front of CCTV. It was further alleged that there was some dispute between the informant and the accused regarding purchase of land and the informant went to the Principal of the college to discuss about the matter and sought cooperation from him, but as per plan, the accused had attacked the informant. Thus the hereinbefore referred P.S. case was registered.

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4. After investigation, the I/O has submitted the charge-sheet against the petitioner bearing charge-sheet No. 97/2022 dated 31.03.2022.

5. The learned counsel for the petitioner has submitted that for the same issue, the informant had lodged another FIR on 09.03.2022, wherein she has referred to a written agreement for purchase of the land in question, alleging that the petitioner had cheated her and that when she went to the Principal of her college, the Lachit Borphukan College, on being called by the Principal, the untoward incident of 07.03.2022 had occurred. Accordingly, it is submitted that the dispute between the parties are civil in nature. It is submitted that as against the second FIR, the petitioner had approached this Court by filing an application under section 482 Cr.P.C., which was registered as Crl.Pet. 497/2022 and this Court by order dated 03.06.2022, has stayed the further proceeding of Sivsagar P.S. Case No. 117/2022 under sections 120B/323/420 IPC till the next returnable date.

6. The learned counsel for the petitioner further submits that no ingredient of offence under section 294/323/506 IPC has been made out. It is further submitted that the allegations in the FIR is imaginary and concocted story and such story was manufactured by the respondent no.2 only to harass and humiliate the petitioner. Accordingly, it is also submitted that the allegations being imaginary, there is no evidence available in support of the allegations contained in the FIR. It is also submitted that said proceeding is liable to be quashed because the FIR was filed only for harassment of the petitioner. It is submitted that dispute between the parties are civil in nature and that the Page No.# 4/11

proceeding of PRC No. 488/2022 was an abuse of the process of Court.

7. The FIR in question is quoted below:

"Sir, With due respect, it is stated that on 07.03.2022 at about 1:00 P.M. I was badly beaten by Jitu Gogoi, an employee of the College and got severely injured and threatened me to death with sharp weapons in the office chamber of the Principal, Lachit College as well as in front of CCTV as because Jitu Gogoi took from me half of the amount to give a plot of land and executed an Agreement in the Court. I came to know that the same plot of land was sold out to other persons also. Accordingly, I went to the Principal to discuss the matter and sought cooperation from the Principal but as per plan, he attacked me and I got severely injured. Therefore I request your honour to render justice with regard to the assault caused to me as well as to return me back the amount taken to sell out the land.

This the humble prayer before your honour.

Your faithfully, Sd/- Ranjima Bora W/o Bhaskar Baruah M.I. Borah Road, Sivasagar, Contact No. 9864813041"

8. The text of the aforesaid FIR reveals that the petitioner had attacked the victim, who got severely injured. Notwithstanding that on a conjoint reading of the FIR dated 07.03.2022 and 09.03.2022, it would appear that the parties had some dispute with regard to purchase and sale of a plot of land. Nonetheless, the allegations, amongst others, also related to attack on the informant and her resultant injury. Moreover, the learned counsel for the petitioner has not been able to demonstrate from any case law or any provisions Page No.# 5/11

of the Indian Penal Code that the offence of attacking/assaulting a person and causing severe injury amounts to civil dispute between parties. Hence, no prima facie case is made out by the petitioner for quashing of the said FIR as well as the resultant proceeding, which has arisen after the charge-sheet had been submitted.

9. The law regarding quashing of proceedings under section 482 Cr.P.C. is very much settled by a 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. 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.

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10. 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 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."

11. 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 Page No.# 7/11

investi- gation by police officers under Section 156(1) of the Code except under 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."

12. 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 vs. Bhajanlal, 1992 Supp (1) SCC 335, Rupan Deol Bajaj vs. Kanwar Pal Singh Gill, Page No.# 8/11

(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 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 Page No.# 9/11

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."

13. Therefore, the Court does not find any necessity to convert itself to a trial Court and examine and find out whether any substantive evidence against the petitioner is available or not. The prosecution found sufficient incriminating materials against the petitioner, on which the charge-sheet is based. Moreover, the I/O had prima facie found materials against the petitioner and charge-sheet was submitted 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 Page No.# 10/11

to proceed with the trial.

14. 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.

15. The Court is of the further considered opinion that none of the criteria, which are indicated in the hereinbefore referred decisions 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.

16. 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 PRC No. 488/2022 pending for trial in the Court of learned Chief Judicial Magistrate, Sivasagar, arising out of Sivasagar P.S. Case No. 110/2022. Accordingly, this criminal petition is dismissed.

17. Accordingly, there would be no impediment for the learned trial Court, i.e. the Court of learned Chief Judicial Magistrate, Sivasagar to proceed with the trial.

18. None of the observations made herein would prejudice either side when the trial is taken up on merit as none of the observations made herein are intending to be construed as a finding of the Court on merit.

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19. The Registry shall transmit a copy of this order to the learned Court of Chief Judicial Magistrate, Sivasagar for records.

20. The petitioner, who is represented by his Advocate shall appear before the Court of the learned Chief Judicial Magistrate, Sivasagar on or before 12.08.2022 and await instruction from the said learned Court.

JUDGE

Comparing Assistant