Crl.Pet./1005/2015
2022 Latest Caselaw 782 Gua

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GAHC010214632015




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

                      Case No. : Criminal Petition No. 1005/2015

     Sri Ghanashyam Kalita,
     S/o. Late Dasarath Kalita,
     Resident of village: Bhutepowa Bari
     under P.O. Cherra Bazaar, P.S. Barpeta Road,
     District- Barpeta, Assam, PIN- 781315.
                                                            ...... Petitioner
                           -Ver


  1. The State of Assam,
     Represented by the Public Prosecutor
     to the Govt. of Assam, in the
     Gauhati High Court, Guwahati, Assam.
     PIN- 781001.


  2. Sri Gulzar Hussain,
     Son of Late Nur Mohammad,
     Resident of Vill. Balabhita,
     under P.O. and P.S. Barpeta Road,
     District- Barpeta, Assam,
     PIN- 781315.
                                                       ........Respondents

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Senior Advocate for the petitioner : Mr. B.D. Das,

Advocate for the respondent no.1 : Mr. B Sarma, Add. P.P., Assam.

:: BEFORE ::

                    HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


Date of Hearing                    : 15.02.2022,


Date of Judgment                   : 07.03.2022




                             JUDGEMENT AND ORDER (CAV)

By way of this petition under Section 482 read with Section 401 CrPC, the petitioner has prayed for stay of all further proceedings pertaining to Barpeta Road P.S. Case No.332/2015 under Section 120B/167/417/466/468/34 of IPC read with Section 7/13(2)of the P.C. Act.

2. Heard Mr. B.D. Das, learned senior counsel for the petitioner as well as Mr. B. Sarmah, learned Addl. Public Prosecutor, Assam representing respondent no.1.

3. So far as the facts of the case is concerned, an FIR was lodged by the respondent no.2 Gulzar Hussain before the Barpeta P.S. contending that he applied for the post of constable as per the advertisement of the Government of Assam dated 26.12.2014 and although he successfully completed the Physical Efficiency Test for the post of constable held in Barpeta district, but he did not find his name in the list of candidates who appeared in the written test held on 28.06.2015. He could learn that several other candidates who also passed the Physical Efficiency Test did not find place in the written examination and came to know that the constables of the Police Department namely, Dalim Deka and Ghanashyam Kalita taking advantage of their association with the higher officers of the selection process, collected huge Page No.# 3/10

amount of money from different candidates of Howly, Pathsala, Barepta, Kalgachia etc. and increased the number in the Physical Efficiency Test examination of the candidates. The aforesaid case was registered as Barpeta Road P.S. Case No.332/2015 under Section 120B/167/417/466/468/34 of IPC read with Section 7/13(2)of the Prevention of Corruption Act (for short, P.C. Act).

4. Challenge to the FIR has been made on the ground that the offences alleged against the petitioner is of vague in nature and quite improbable inasmuch as the petitioner being constable in the Assam Police, not in a position to influence the merit list of the selected candidates and such an FIR has been filed by the candidates who has not been able to secure the job. It is further contended that the petitioner at the relevant time was engaged in Bank duty and other related work and he has been falsely implicated in the FIR. On the next, it is contended that no arrest of a person can be made by the police only because of the FIR filed unless the provision under Section 41A CrPC is complied with as it would tantamount to infringement of precious fundamental rights and by not issuing a notice under Section 41A, to enabling the petitioner to explain his case, FIR is bad in law. Further, it is challenged that a case has been wrongly registered under Section 7/13(2) of the PC Act only on the allegation of the informant which is nothing but an assumption and presumption whereas the FIR does not prima facie disclose any ingredient under the said offences as mentioned in the FIR and hence the FIR is liable to be quashed and set aside.

5. I have heard submission of the learned senior counsel Mr. B.D. Das and also learned Addl. P.P. Assam, Mr. B. Sarma who has also produced the case diary.

6. Reiterating the contention that has been raised in the petition, the learned counsel for the petitioner has submitted that the court should interfere into such FIR where the allegation is general in nature without any specific mention of the ways and means how the petitioner involved in the offence as alleged. It has been contended that such an FIR can be filed by any person for redressing personal vendetta and unless specific instance of commission of an offence by the accused, an FIR is not even liable to even register.

7. Learned Addl. P.P., however submitted that there are sufficient incriminating material against the petitioner justifying the registration of the FIR as well as the continuation of Page No.# 4/10

investigation against the accused person.

8. I have given anxious consideration to the submission of both the parties and also gone through the matters on record available in the case diary.

9. In the FIR, although the informant has not indicated that petitioner demanded bribe or anything and the same paid by him but he has indicated that the present petitioner along with another has collected huge amount of money from various candidates and also alleged about the illegalities carried out in the examination for the recruitment to the post of police constable. In that view of the matter, the registration of the case in respect of cognizable offence in terms of the decision in Lalita Kumari vs. State of U.P., (2014) 2 SCC 1, cannot be held as bad in law, as has been contended.

10. On perusal of the case diary, it reveals that the I/O has examined various witnesses/candidates who appeared in the said examination and large number of witnesses have stated about the collection of money by Police personnel. Some of the witnesses of the police department have admitted about taking of money from the candidates and one Police constable Tapan Deka has admitted about collection of money amounting to Rs.3,80,000/- from one Jitumoni Kalita in collusion with the present petitioner, but subsequently the money was returned by Tapan Deka to him as he could not provide the job. From the note of the I/O, also it appears that there being sufficient evidence to suggest the complicity of the petitioner, a thorough investigation is necessary. Above named police constable Tapan Deka has already been arrested and forwarded to the court finding his complicity but due to the stay granted by this court, further investigation could not be carried out.

11. After going through all entirety of the matter in the case diary, the fact that certain illegality has crypt up in the selection process of constable as alleged in the FIR suggesting the complicity of the present petitioner, this court is of the opinion that the investigation should come to a logical end. Interference in the investigation so far as regard the offences under the Prevention of Corruption Act, which is serious in nature, should not be indulged by a court of law by invoking the provision of Section 482 CrPC.

12. Power of High Court under Section 482 CrPC, to quash the proceeding is distinct and different from power of compounding offence under Section 320 CrPC. Before exercise of Page No.# 5/10

inherent quashment power under Section 482, the High Court must have due regard to the nature and gravity of the crime and its social impact. In the present case, charge is under the Prevention of Corruption Act and only on the fact that the informant could not narrate the entire nature of transaction etc., cannot be a ground to set aside the FIR where sufficient material has come up during the investigation on the basis of such FIR.

13. After going through all materials on record, this Court is of the opinion that the challenge to the FIR has been made at a very initial stage, where the investigating officer could not proceed to enquire into the matter. Such inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from doing any prima facie decision in a case where all the facts are incomplete and hazy, more so when the evidence has not been collected. Exercise of such power is not a rule but an exception and it cannot be exercised at the whims and caprice, but it is to be exercised with due care and caution.

14. In landmark judgment in State of Haryana and Ors. v. Bhajan Lal and Ors, 1992 Supp (1) SCC 335, the Hon'ble Supreme Court has held that High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceeding without allowing the investigating agency to complete its task. Certain guidelines have been identified when the FIR/complaint can be quashed:

"102.(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 FIR do not disclose a cognizable offence, justifying an investigation 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 Page No.# 6/10

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 Act concerned (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 Act concerned, 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.

Above guideline is followed by subsequent decisions as mentioned below:

(i) R.P. Kapur v. State of Punjab, (AIR 1960 SC 866);

(ii) Kurukshetra University v. State of Haryana [(1977) 4 SCC 451;

(iii) State of A.P. v. Golconda Linga Swaymy [(2004) 6 SCC 522;

(iv) Zandu Pharmaceutical Works Ltd. v. Mohd. Saharaful Haque, [(2005) 1 SCC 122];

(v) Sanapareday Maheedhar Seshagiri v. State of Andhra Pradesh, [(2007) 13 SCC 165];

(vi) State of Andhra Pradesh v. Bajjoori Kanthaiah, [(2009) 1 SCC 114];

(vii) State of Maharashtra v. Arun Gulab Gawali, [(2010) 9 SCC 701];

(viii) State of Orissa v. Ujjal Kumar Burdhan, [(2012) 4 SCC 547];

15. The law on the exercise of powers under Section 482 CrPC, has been succinctly laid down that such statutory power has to be exercised sparingly in the circumspection and in Page No.# 7/10

the rarest of rare cases to prevent the abuse of process of law or to prevent miscarriage of justice.

16. Summarizing all the decisions on the subject, in a recent decision in M/s. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Ors . in Criminal Appeal No.330/2021 dated 13.04.2021, the Hon'ble Supreme Court has concluded as follows:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offence;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of Page No.# 8/10

investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/ summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal(supra),has the jurisdiction to quash the FIR/complaint;

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 Page No.# 9/10

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 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/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482Cr.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.

17. In view of the findings and observations above, this Court is of the opinion that it is not a fit case to invoke the provision of Section 482 CrPC. Accordingly, the present petition stands dismissed.

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Return the case diary.

JUDGE

Comparing Assistant