Page No.# 1/13 vs The State Of Assam And Anr
2022 Latest Caselaw 3388 Gua

                                                                        Page No.# 1/13

GAHC010031152021




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

                               Case No. : Crl.Pet./115/2021

            IDRIS ALI OHEB AND ANR
            S/O. LT. NURUDDIN ALI, R/O. NO.2 SAMBARIA, P.O. AND P.S. LANKA, DIST.
            HOJAI, ASSAM, PIN-782446.

            2: AFAZ UDDIN
             S/O. LT. AHMED ALI FAKIR
            VILL. LANKAJAN
             P.O. TINIALI BAZAR
             P.S. LANKA
             DIST. HOJAI
            ASSAM


            VERSUS


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

            2:MODHU BAUL
             S/O. LT. RAM KANAI BAUL
             R/O. WARD NO.6
             LANKA
             DIST. HOJAI
            ASSAM




Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM

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BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

For the Petitioners : Mr. I A Hazarika, Advocate

For the Respondents : Mr. S Borthakur, Mr. A Deka, Advocates Mr. B Sarma, Addl PP

Date of Hearing : 17.08.2022

Date of Judgement :07.09.2022

JUDGEMENT & ORDER (CAV)

Heard Mr. I A Hazarika, learned counsel for the petitioners. Also heard Mr. S Borthakur, learned counsel, Mr. A Deka, learned counsel representing respondent No. 2 and Mr. B Sarma, learned Addl. P.P., Assam.

2. The two petitioners have filed the present application under Section 482 Cr.P.C. praying for quashing the FIR dated 07.08.2019 being registered as Lanka P.S. Case No. 371/2019 under Sections406/471 IPC read with Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989.

3. The FIR so registered reflects the followings:

I. The informant, Sri Modhu Baul has been working as assistant teacher since the year 1986 at Moulana Abdul Hannan Khan High Page No.# 3/13

School.

II. On 30.09.2016, the then In-charge headmaster of the school, namely, Idris Ali Oheb (petitioner No. 1) retired from the school.

III. On his retirement the petitioner No. 1 ought to have been handed over the charge of the Principal as per Rule to the informant being the senior most teacher.

IV. However, he has handed over the charge of the headmaster to another assistant teacher junior to the informant, namely, Afaz Uddin (petitioner No. 2) and the said Afaz Uddin was having a fake B.Ed. degree.

V. The said Afaz Uddin after taking over the post of headmaster through backdoor started filing different false cases and tried to mentally pressurize the informant.

VI. The informant had failed to get any response from the Inspector of Schools, Deputy Commissioner of Hojai and the Directorate of Secondary Education even after due application.

VII. On 30th of May, the retired head teacher informed him that the informant was not given the promotion for the reason of he being a person from Schedule Caste community. The informant further alleges that the said retired headmaster used slang languages against him alleging that he is a man from Schedule Caste etc.

VIII. Such FIR was lodged on 03.07.2019 that is after three years from the date of incident.

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4. The admitted position in the present proceeding is that the informant has not lodged the information before the police as FIR, rather the same was filed before the Director, Department of Welfare of Plain Tribes & Backward Classes for redressel of his grievances. On receipt of such complain, the Director forwarded the same to the SP, Hojai by putting a note on the body of the complaint filed by the informant and the SP, Hojai directed the concerned O/C to register a case and accordingly the FIR was registered.

5. The other undisputed fact is that when the informant was not given the charge of the headmaster by the petitioner No. 1 as alleged in the FIR, the informant also preferred a writ petition being WP(C) 9406/2019 challenging such action on the part of the present petitioner No. 1, inter-alia, alleging that the petitioner No. 2 herein is having no valid B.Ed. degree and is also junior to the informant. In the said proceeding, the learned standing counsel, Education Department took a stand that an enquiry has already been initiated on the issue of certificate of the respondent No. 5 therein/ petitioner No.2 herein.

6. And accordingly on the basis of such submission, this court under its order dated 20.12.2019 disposed of the said writ petition giving liberty to the respondent Education Department to have the enquiry to find out as to the eligibility of the candidates including the present informant and the present accused No. 2 for promotion to the post of headmaster. A period of two months was granted to complete the said enquiry.

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7. Subsequent to the said order, the Director of Secondary Education, Assam passed an order after an enquiry, inter-alia, holding as follows:

"The Controller of Examination, Gauhati University, vide his letter No. GU/CON/Verification/2019/1146, dated 29.01.2019 authenticated the B.Ed. certificate issued by the said authority bearing Roll No. 1743 of the year August, 2015 in respect of Afaz Uddin as correct. The said letter of the Controller of Examination, Gauhati University has been duly communicated to the Govt. by the Inspector of Schools, Nagaon vide letter No. IS/NDC/AAP/MISC/2017/3200 dated 03.08.2019. According to the letter of the Controller of Examination, Gauhati University dated 29.07.2019, it may be assumed that the B.Ed. degree acquitted by Afaz Uddin is valid."

8. Thus, it was held by the Director of Secondary Education that B.Ed.

degree acquired by the accused No. 2 is valid. The said order dated 30.01.2020 also reflects that a regular selection process was held and in the said regular selection process, the selection committee also recommended the name of the accused No. 2 for promotion to the post of regular headmaster of the school and which has already been implemented.

9. It is submitted by the learned counsel for the informant that the said order dated 30.01.2020 has been challenged once again by the present informant by way of a writ petition registered as WP(C) 4781/2021. Though no interim order has been passed in the said proceeding, however the order dated 13.01.2020, (which is under challenged) is made subject to outcome of the writ petition.

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10. In view of the aforesaid undisputed fact and in view of the language depicted in the FIR, now this court is to determine as to whether this court can interfere with the FIR in exercise of its power under Section 482 Cr.P.C.

11. The learned counsel for the petitioners submits that no case is made out under Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 inasmuch as even if assumed that there are certain words used by the informant No. 1, admittedly same has been made inside the office chamber of the Principal and not in public view. Therefore, in such a situation, no case under Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 is made out. In support of his contention, Mr. Hazarika relies on the decision of the Hon'ble Apex Court in Hitesh Verma Vs State of Uttarakhand reported in (2020) 10 SCC 710.

12. Mr. Hazarika further contends that mala-fide is writ large in the present proceeding as it is crystal clear that the FIR has been lodged only to harass the petitioners herein inasmuch as when the informant failed in all his endeavor to become headmaster, he has lodged this FIR in the year 2019 whereas the incident occurred in the year 2016. Such conduct of the informant itself shows the mala-fide intention of the informant. No prima-facie case under Section 406 and 471 is made out, concludes Mr. Hazarika.

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13. The learned counsel for the informant/ respondent submits that this is not a rarest of the rare case wherein this court should exercise its power under Section 482 Cr.P.C. to quash the same. He further contends that prima-facie case under the provision of Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 is made out from reading of the FIR. He further contends that in view of the decision of the Hon'ble Apex Court in State of Haryana & Others Vs. Bhajanlal and Others reported in (1992) Supplementary 1 SCC 335 and Niharika Infrastructure Limited reported in 2020 10 SCC 118 and decision of this court in Apurba Kr. Choudhury and 13 Others decided on 06.05.2022 in Crl. Pet No. 351/2022 the present case is not a fit case where this court should interfere in exercise of its power under Section 482 Cr.P.C.

14. The learned Additional PP has produced the case diary as directed by this court. This court has also perused the FIR. The learned public prosecutor fairly submits that though investigation has continued, however investigation has not proceeded so far relating to offences under Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989. He submits that in the investigation it was found that the petitioner No. 2 is having two B.Ed. certificates and the investigation proceeded on the allegation of false B.Ed. certificate and not under Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989. He further submits Page No.# 8/13

that since investigation is almost at the final stage, this court should not interfere in the present proceeding inasmuch as the petitioners shall have their options even if the charge-sheet is filed to challenge the same before this court. He further submits that in view of the judgment passed in Niharika (supra), this court should not lightly interfere with the investigation of the present case.

15. The Hon'ble Apex Court settled the issue regarding the exercise of power under Section 482 Cr.P.C. by High Court in quashing FIRs/ Criminal Complaints in State of Haryana & Others Vs. Bhajanlal and Others reported in (1992) Supplementary 1 SCC 335 . The relevant paragraph, which is necessary for the present lis can be quoted hereinbelow:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to 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 formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.554 (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.

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(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."

16. This court has occasion to peruse the case diary produced by the learned Additional Public Prosecutor, which clearly reveals that the investigation was carried out in a direction relating to the validity and otherwise of the B.Ed. certificate relied on by the present petitioner No. 2 for his appointment as headmaster of the school in question. The learned Additional Public Prosecutor is correct that the investigation proceeded on allegation on the validity of the B.Ed. certificate and not under Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989.

17. From perusal of the record including the case diary, this court is of the considered opinion that no case under Sections 406 or 471 IPC is made out.

18. Section 406 IPC depicts criminal breach of trust and a bare reading of FIR and the statement recorded so far there is no material which shows that anything was entrusted upon the petitioners herein Page No.# 10/13

and the present petitioners herein had dishonestly miss-appropriated or converted the same to their own use or dishonestly used or dispossessed the property entrusted to them.

19. So far relating to Section 471 IPC, though there was an allegation that the certificate of the petitioner is not genuine, however, the University authority, who issued the certificate had clarified that the certificate issued in favour of the petitioner was a genuine certificate. The allegation leveled in the FIR and the material so far collected do not disclose an offence under Section 471 IPC.

20. Further, the material available on record including the FIR, the earlier orders of this courts and sequence of events show that the dispute basically revolves around claim and counter claim by the informant and petitioner No. 2 regarding the post of the headmaster in the school in question. The Director after verification and pursuant to the order of this court in WP(C) 9406/2019, passed the order, which was quoted hereinabove and such fact discloses that no prima-facie of forgery is made out inasmuch no specific allegation is available that the petitioners had made false document with intention to use the same for purpose of cheating.

21. The facts also remain that the present petitioner has also been regularly selected as headmaster of the school. The writ petition filed by the informant being WP(C) 4781/2021 assailing the decision of the Director of Secondary Education is pending and this court has declined Page No.# 11/13

to pass any interim order. All aforesaid uncontroverted fact clearly reveals that the dispute basically relates to service and not a criminal dispute. Thus, this court for the aforesaid reason, do not find any prima-facie case under Sections 406 and 417 IPC.

22. This court is also of the considered opinion that the Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 and the object thereof is to deter caste based humiliations such insult/ intimidations to the members of the Schedule Caste and Schedule Tribes communities. When such insults etc. are made with the intention of demening a victim on account of he/ she belonging to Schedule Caste and Schedule Tribes communities, the provision can be attracted.

23. The present case record as discussed hereinabove, discloses that dispute touching the service and promotion to the post of headmaster has been going on between the petitioner No. 2 and the informant. The case of the petitioner is also that the alleged offending word has been uttered by the petitioner No. 1 to deprive the petitioner from getting appointed/ posted as headmaster. The factual aspect also shows that the occurrence took place in a private meeting between the parties and therefore, no case under Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 is made out. There is no material to show that the utterance of words by the petitioner have any ingredients which promote or attempt to promote feelings of enmity, hatred or ill will against the members of the Schedule Caste Page No.# 12/13

and Schedule Tribes inasmuch as no such allegation is leveled in the FIR.

24. In Niharika (supra) the Hon'ble Apex Court has depreciated passing of interim order on mere asking. The ratio in Niharika (supra) nowhere over ruled the judgment in Bhajanlal (supra) inasmuch as in Niharika (supra) the Hon'ble Apex court re-iterated the laid down principle under which, High Court can exercise its jurisdiction under Section 482 Cr.P.C. to quash criminal proceeding. No ratio has been laid down in Niharika (supra) that in any case and in any circumstance, the High Court cannot interfere with the investigation in exercise of its power under Section 482 Cr.P.C. This court is of the considered opinion that in view of the discussion and reason given hereinabove, the petitioner has made out a case for interference under Section 482 Cr.P.C. Therefore, the judgment of Niharika (supra) though heavily relied on by the learned counsel for the informant is having no application in the given fact and circumstance of the present case.

25. In the aforesaid backdrop, this court is of the view that no case under Section 406, 417 and 471 of the IPC and under Section 3 (U) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 is made out. Therefore, the impugned FIR dated 07.08.2019 is hereby set aside and quashed.

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26. Accordingly, this criminal petition is allowed.

JUDGE

Comparing Assistant