Gauhati High Court
Dr. Raju Sakthivel vs The Central Bureau Of Investigation on 24 May, 2024
GAHC010138072023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Principal Seat at Guwahati
Criminal Petition No. 618/2023
1. Dr. Raju Sakthivel
S/o Mr. R. Raju,
Commissioner(Appeals)
Central GST & CE, Guwahati.
...PETITIONER
VERSUS
1. The Central Bureau of Investigation,
Through the Superintendent of Police, CBI, ACB,
Guwahati,
2. Shri Chittranjan Nath,
S/o Late Indra Prasad Nath,
R/o Majgaon, Boruachuburi,
PO-Nikamul, Tezpur, Sonitpur,
Assam-784001, Pawan Enterprise,
Tezpur.
...RESPONDENTS
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APPEARANCE:-
For the petitioner :- Ms. N. Bordoloi, Advocate,
For the respondent :- Mr. M. Haloi,
Special Public Prosecutor,
CBI, Guwahati.
:::BEFORE:::
HON‟BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing :- 30.01.2024; 17.05.2024
Date of verdict :- 24.05.2024
JUDGMENT AND ORDER
Heard Ms. N. Bordoloi, learned Counsel for the petitioner. Also
heard Mr. M. Haloi, learned Special Public Prosecutor for the respondent
No.1. None appears for the respondent No.2.
2. This petition, under Section 482 of the Criminal Procedure Code,
1973 read with Article 226 of the Constitution of India, is preferred by
Dr. Raju Sakthivel, Commissioner (Appeals), Central GST & CE,
Guwahati, for quashing the First Information Report No.
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RC0172022A0007, dated 28.09.2022, registered under sections 120B
IPC read with section 7 and 7 (A) of the Prevention of Corruption Act,
1988, registered by respondent CBI and its consequential proceedings,
being instituted on the basis of a complaint lodged by one Chittaranjan
Nath, on personal grudge and vengeance.
3. The background facts, leading to filing of the present petition, is
briefly stated as under:-
"The complainant/respondent No.2, Shri Chittaranjan Nath, being
the proprietor of Pawan Enterprise, Tezpur had executed
construction works in (i) NF Railway, Maligaon, (ii) Central Assam
Electricity Distribution Company, (iii) Assam Power Distribution
Company,(iv) Tezpur Municipality Board, (v) Apeejay Tea Limited,
during the year 2013 to 2017, and for the same he raised bills
from the said establishments and also received payment.
Thereafter, on the basis of receipt of payment, the Additional
Commissioner, Central Goods and Service Tax, Dibrugarh raised a
demand of service tax, amounting Rs. 48,43,034/, vide
adjudication order No. 02/ADC/ ADJ/ST/COMMR/DIB/18/2021-22,
dated 23.07.2021. Being aggrieved by the said order, the
complainant/respondent No.2 had filed one appeal before present
petitioner, the then Commissioner (Appeals), CGST, Central Excise
& Customs, Guwahati on 19.10.2021. Hearing of the said appeal
took place before the petitioner, but, he did not pass any order
and demanded an illegal gratification of Rs. 4,50,000/ and finally
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agreed to accept bribe of Rs. 3,75,000/ and directed the
complainant/respondent No.2 to pay the said gratification to Shri
Rajendra @ Amol D. Medhekar (A-2). Thereafter, accused
Rajendra (A-2) had directed the complainant/respondent No.2 to
hand over the said sum to Shri Avinash (A-3) and accused
Avinash (A-3) had directed the complainant to hand over the said
sum to one hawala agent, namely Shri Mahabir (A-4) which was
confirmed by Rajendra(A-2), and Mahabir (A-4) had directed the
complainant to handover the said illegal gratification to him at
Mahabir Bhawan, Athgaon, Guwahati with a brokerage charge of
Rs. 8,000, totaling Rs. 3, 83,000/, on 28.09.2022.
Then after registration of the FIR, a trap was laid on
28.09.2022 and accused Mahabir (A-4) was caught red handed in
his shop No. 29 at Mahabir Bhawan, which was in the name and
style of Good Luck Commercial Service, while demanding and
accepting Rs.3,83,000/ on behalf of the present petitioner, from
the complainant in presence of witnesses.
Thereafter, investigation was carried out and the same
culminated in submission of charge sheet on 25.01.2023, under
section 7 & 7A of Prevention of Corruption Act 1988, read with
section 120 (B) IPC against accused Raju Sakthivel (A-1), Shri
Avinash (A-3), Shri Mahabir Jain Shyamsukha (A-4). Thereafter,
on 17.02.2023, a supplementary charge sheet was filed against
accused Shri Rajendra @ Amol D. Medhekar (A-2), to stand trial
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in the court under section 120-B/419 IPC read with section 7 & 7
A of Prevention of Corruption Act, 1988 and under section 66B of
Information Technology Act, 2000."
4. Being highly aggrieved, the petitioner has preferred the present
petition on the following grounds:-
(i) That, the respondent No.2 had evaded service tax, claiming
false and fraudulent claim for tax exemption for more than
three financial years, amounting Rs. 77,88,683/ and thereby
caused huge loss to Government exchequer and the CGST
Commissionerate had issued show cause and demand
Notice to him for the aforesaid amount. Thereafter, he
preferred an appeal before the petitioner and that the
petitioner had no discretionary power to waive off any
service tax liability of the respondent No.2 and there was no
merit in the appeal and as such demanding of illegal
gratification from the respondent No.2 by the petitioner is
absurd and improbable and on such count it falls in the
category No.5 of the decision in the case of State of
Haryana vs. Bhajanlal reported in 1992 Supp. (1) SCC
335, and it is an abuse of the process of law by the
respondent No.2;
(ii) That, the respondent No.2 had ulterior motive to falsely drag
the petitioner as he was already facing tax liability of Rs.
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1,55,77,366 and 20% interest thereon and he had received
show cause notice dated 24.08.2013 originally proposing a
service tax liability of Rs. 77,88,683 along with 124%
mandatory penalty and he had suppressed this fact
deliberately and hoodwink the respondent No.1 into an
illusion; and the tax evading antecedent of the respondent
No.2 cast a doubt about the veracity of allegations leveled
by him against the petitioner;
(iii) That, the respondent No.1 had violated almost all the
relevant provision of law relating to filing of FIR, arrest,
personnel search, pre-trap and post trap proceeding. There
is delay in lodging the FIR and while the first demand of
bribe was made on 24.08.2022, the FIR was lodged on
14.09.2022, after a period of 20 days and reason for delay
was not mentioned in the FIR and the respondent No.1 had
failed to enquire about the same which cast serious doubt
about the veracity of the allegation in the same. Besides,
preliminary enquiry as mandated by Hon‟ble Supreme Court
in the case of Lalita Kumari vs. Govt. of U.P. & Ors.
reported in (2014) 2 SCC 1. And the allegation of
demanding of Rs.4.5 lacs by the petitioner was a simple
assertion and without any basis and the time period for
conducting preliminary from 14.09.2022 to 28.09.2022, as
stated by the respondent No.1, has not been followed and
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there was no signature of the Officer-in-Charge in the FIR,
and the claim of tax exemption mentioned in the complaint
in the FIR enclosures have not been examined; and date,
time and place of arrest has not been mentioned in the
Arrest Memo, and the ground of arrest also not attracted in
respect of the petitioner; and the guidelines of Supreme
Court has not been complied with, there was also violation
of check list as provided in section 41 and 41 A Cr.P.C. held
in Arnesh Kumar vs. State of Bihar reported in (2014)
8 SCC 273 and in the case of Satinder Kumar Antil vs.
CBI & Another reported in (2022) SCC OnLine SC
825, which is valid ground for quashing as it is an abuse of
the process of the court as held in the case of M/s
Neeharika Infrastructure Pvt. Ltd. vs. The State Of
Maharashtra reported in AIR 2021 SC 191;
(iv) That, the petitioner was abused by the respondent No.2
while he was in custody of the respondent No.1 on
29.09.2022 at around 2.00 am and he also narrated how he
had managed and fixed the petitioner in CBI Case. The
respondent No.2 had personal grudge against the petitioner
for not dropping the appeal case and he had strong motive
to implicate the petitioner in a false case and that the
instant case of the petitioner falls in the 7th category of
cases and also in 5th category of cases mentioned in the
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case of Bhajanlal (supra) and as such the FIR and
consequent proceeding deserved to be quashed;
(v) That, the petitioner has unblemished service record of 23
years and he cannot become dishonest all of a sudden and
he had rendered his service in various capacities in various
places in India and he was involved in many projects and
his works were widely applauded all over India;
(vi) In the present case against the petitioner C-DARE ground
i.e. Conspiracy, Demand, Acceptance, Recovery and
Evidence are missing and the FIR was filed without any
prima-facie material evidence relating to demand and
acceptance of bribe and he had no acquaintance with the so
called courier agent and other persons arrayed in the FIR
and that section 120B IPC is not attracted herein this case.
Besides, there is no iota of evidence to show that the so
called recovery is attributable to any demand or
acceptances, which are the twin requirement to attract
section 7 of the Prevention of Corruption Act, made by the
petitioner; and that no prima-facie offence is made out or
disclosed against the petitioner for the offence u/s 120B IPC
and section 7 or 7A of Prevention of Corruption Act;
(vii) That, the case of the petitioner falls in the category of rarest
of the rare cases as it involves the personal liberty and
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dignity of the petitioner as provided in Article 21 of the
Constitution of India, which needs to be restored;
(viii) That, the inherent power of this court under section 482
Cr.P.C. has to be exercised to prevent abuse of the process
of the court and to ensure justice;
5. The respondent CBI has filed objection petition wherein it is stated
that as per Memo of Arrest the petitioner was arrested on 29.09.2022
which was prepared in presence of two independent witnesses and the
petitioner also put his signature on 29.09.2022 and he was produced
before the court within 24 hrs. It is also stated that the respondent had
registered the FIR after verification of the facts and genuineness of the
complaint dated 14.09.2022, and sufficient materials were collected
during investigation to show the culpability of the offence and that the
investigation was conducted in a fair manner. It is also stated that this
case does not fall in the category of cases mentioned in the case of
Bhajanlal (supra) as the same has been registered after verification
of complaint and sufficient materials were collected against all the
accused persons and it has not been registered on personal grudge and
audio conversation was also recorded between the petitioner and the
complainant and co-accused and accused Mahabir (A-4) was caught red
handed on 28.09.2023 while accepting illegal gratification of
Rs.3,83,000/ on behalf of the present petitioner. And that the
complainant did not have any ulterior motive to falsely drag the
accused to court. The accused petitioner had demanded the illegal
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gratification on 24.08.2022, and thereafter, lodged the complaint with
CBI on 14.09.2022, after conducting enquiry as to how and to whom
the complaint has to be lodged and after verification CBI has registered
the FIR on 28.09.2022. It is further stated that no preliminary enquiry
was conducted here but the complaint was verified and verification
report was prepared. Further it is stated that an appeal preferred by the
complainant was pending before the petitioner had demanded illegal
gratification for passing a favorable order. It is also stated that there is
no inordinate delay in filing the FIR and investigation was carried out
without mala-fide intention and present case does not fall in the
category of rare cases to exercise the power under section 482 Cr.P.C.,
as held by Supreme Court in the case of P. Chidambaram vs.
Directorate of Enforcement reported in 2019 (9) SCC 24, and as
such it is contended to dismiss the petition.
6. Ms. Bordoloi, the learned Counsel for the petitioner, besides
reiterating the points mentioned herein above also argued following
points:-
(i) That the FIR was lodged on mala-fide ground and that the
complainant did not appear in the proceeding pending before
the petitioner and as such no demand can be raised;
(ii) No preliminary enquiry was conducted as required under
section 17-A of the Prevention of Corruption Act and the
circumstance of the case requires prior approval;
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(iii) That section 41A Cr.P.C. has not been complied with and as
such it is an abuse of the process of law;
(iv) That, there is delay in granting prosecution sanction under
section 19 of the P.C. Act, and the sanction order was issued
in the month of August 2023 whereas time line is only four
months in view of decision of Hon‟ble Supreme Court in
Vineet Narain & Others vs. Union Of India &
Another reported in 1998 (1) SCC 226;
(v) That foundational facts are necessary to establish a prima
facie case and in the case in hand the same are shaky and the
complaint has been filed on personal grudge;
(vi) That, the present case is false and fabricated and it falls in the
category of cases mentioned in 1,2,3,6 & 7 of paragraph
No.102 of the decision in Bhajanlal (supra);
6.1. Ms. Bordoloi, learned counsel for the petitioner, has also referred
following case laws to bolster her submission:-
(i) State of U.P. Through CBI SPE, Lucknow v. R.K. Srivastava &
Anr., reported in (1989) 4 SCC 59;
(ii) Indian Oil Corpn. v. NEPC India Ltd. &Ors., (2006) 6 SCC 736;
(iii) Narendra Mishra v. State of M.P. & Anr., 2022 SCC OnLine MP
4838;
(iv) Mohammad Wajid & Anr. v. State of U.P. & Ors., 2023 0
Supreme(SC) 690;
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(v) Salib @ Shalu @ Salim v.State of U.P. & Ors., 2023 0
Supreme(SC) 694;
(vi) Gian Singh v. State of Punjab &Anr., (2012) 10 SCC 303;
(vii) State of Karnataka v. L. Muniswamy & Ors., (1977) 2 SCC
699;
(viii) Amitava Banerjee alias Amit alias Bappa Banerjee v.State of
West Bengal, reported in (2011) 12 SCC 554;
(ix) State of W.B. & Anr. v. Mohd. Khalid & Ors., (1995) 1 SCC 684;
(x) Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia &
Anr., reported in (1989) 1 SCC 715;
(xi) Yashwant Sinha & Ors. v. Central Bureau of Investigation,
reported in (2020) 2 SCC 338;
(xii) M. Krishnan v. Vijay Singh & Anr., reported in (2001) 8 SCC
645;
(xiii) Shakson Belthissor v. State of Kerala & Anr., (2009) 14 SCC
466;
(xiv) Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra
Bhimraj Bijjaya & Ors., reported in (1990) 4 SCC 76;
(xv) Vineet Narain & Ors. v. Union of India &Anr., (1998) 1 SCC
226;
(xvi) Rajib Ghosh & Ors. v. State of Assam & Anr. [Crl.Pet.
No.326/2021, dated 22.05.2023];
(xvii) Md. Shahjahan Ali v. State of Assam & Anr. [Crl. Pet.
No.124/2022, dated 16.06.2023];
(xviii) JSVM Plywood Industries Ltd. v. State of Assam & Anr. [Crl.
Pet. No.454/2020, dated 31.08.2023];
(xix) State of Haryana &Ors. v. Ch. BhajanLal & Ors., reported in
1992 Supp (1) SCC 335;
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(xx) P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC
24;
(xxi) M/s Neeharika Infrastructure Pvt. Ltd. v. State of
Maharashtra &Ors., reported in (2021) 19 SCC 401;
(xxii) M/s Indian Oil Corporation v. M/s NEPC India Ltd. &Ors.,
reported in 2006 0 Supreme(SC) 645;
(xxiii) M.S. Bindra v. Union of India &Ors., reported in (1998) 7 SCC
310;
(xxiv) Sardul Singh Caveeshar v. State of Bombay, reported in 1957 0
Supreme(SC) 70;
7. Whereas, Mr. M. Haloi, the learned special P.P. has canvassed
following points for consideration of this court:-
(i) That, from a bare perusal of the FIR, a clear case, under
section 7 of the Prevention of Corruption Act, is made out
and as such none of the grounds mentioned in paragraph
No. 102, in the case of Bhajanlal (supra) is attracted
herein this case;
(ii) That, there was clear demand of Rs. 4,50,000/ from the
complainant by the accused/petitioner;
(iii) That, approval for investigation under section 17-A is not
required as demanding of bribe by the accused/petitioner is
not at all related to discharging of official duty;
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(iv) That, no preliminary enquiry is required to be conducted and
the same is not mandatory in view of already settled
principles of law so laid down in the case of Central
Bureau Of Investigation (CBI) vs. Thommandru
Hannah Vijayalakshmi @ T.H., 2021 AIR OnLine 2021
SC 869
(v) That, sanction to prosecute the accused/petitioner was
granted by the President;
(vi) That, some of the accused namely, Rajendra is a hawala
agent and he was arrested in this case;
(vii) That, there is no merit in this petition and the same has to
be dismissed;
8. In her reply to above, Ms. Bordoloi submits that the informant was
not present at the time of hearing of the appeal preferred by him and
that the informant had evaded tax and he had filed the case with mala-
fide intention. Ms. Bordoloi, further submits that no prima-facie case is
made out as foundational facts are necessary to establish a prima-facie
case which are shaky herein this case. Therefore, Ms. Bordoloi has
contended to allow this petition.
9. Having heard the submission of learned Advocates of both sides, I
have carefully gone through the petition and the documents placed on
record and the scanned copy of the record of the learned court below
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and also gone through the case laws referred by learned counsel for
both the parties.
10. Before directing a discussion to the points so raised by learned
Advocates of both sides, we deemed it appropriate to discuss the
relevant case laws presently holding the field. When and how the FIR
and Criminal proceeding is to be quashed, and the power of High Court
under section 482 Cr.P.C. is elaborately dealt with in the case of
Sanapareddy Maheedhar And Another vs. State Of Andhra
Pradesh And Another reported in 2007 (13) SCC 165, where it has
been held that -
"26. At this stage, we may also notice the parameters laid down
by this Court for exercise of power by the High Court under
Section 482 Cr.P.C to give effect to any order made under the
Cr.P.C or to prevent abuse of the process of any court or
otherwise to secure the ends of justice. In R.P. Kapur v. State
of Punjab [AIR 1960 SC 866] this Court considered the
question whether in exercise of its power under Section 561A of
the Code of Criminal Procedure, 1898 (Section 482 Cr.P.C. is
parimateria to Section 561A of the 1898 Code), the High Court
could quash criminal case registered against the appellant who
along with his mother-in-law was accused of committing offences
under Section 420, 109, 114 and 120B of the Indian Penal Code.
The appellant unsuccessfully filed a petition in the Punjab High
Court for quashing the investigation of the First Information
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Report (FIR) registered against him and then filed appeal before
this Court. While confirming the High Court‟s order this Court laid
down the following proposition:
The inherent power of High Court under Section 561A,
Criminal P.C. cannot be exercised in regard to matters specifically
covered by the other provisions of the Code. The inherent
jurisdiction of the High Court can be exercised to quash
proceedings in a proper case either to prevent the abuse of the
process of any court or otherwise to secure the ends of justice.
Ordinarily criminal proceedings instituted against an accused
person must be tried under the provisions of the Code, and the
High Court would be reluctant to interfere with the said
proceedings at an interlocutory stage. It is not possible, desirable
or expedient to lay down any inflexible rule which would govern
the exercise of this inherent jurisdiction.
27. This Court then carved out some exceptions to the above
stated rule. These are:
(i) Where it manifestly appears that there is a legal bar against
the institution or continuance of the criminal proceedings in
respect of the offences alleged. Absence of the requisite sanction
may, for instance, furnish cases under this category;
(ii) Where the allegations in the First Information Report or the
complaint, even if they are taken at their face value and accepted
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in their entirety, do not constitute the offence alleged; in such
cases no question of appreciating evidence arises; it is a matter
merely of looking at the complaint or the First Information Report
to decide whether the offence alleged is disclosed or not;
(iii) Where the allegations made against the accused person do
constitute an offence alleged but there is either no legal evidence
adduced in support of the case or the evidence adduced clearly or
manifestly fails to prove the charge. In dealing with this class of
cases it is important to bear in mind the distinction between a
case where there is no legal evidence or where there is evidence
which is manifestly and clearly inconsistent with the accusation
made and cases where there is legal evidence which on its
appreciation may or may not support the accusation in question.
In exercising its jurisdiction under Section 561-A the High Court
would not embark upon an enquiry as to whether the evidence in
question is reliable or not. That is the function of the trial
magistrate, and ordinarily it would not be open to any party to
invoke the High Court‟s inherent jurisdiction and contend that on
a reasonable appreciation of the evidence the accusation made
against the accused would not be sustained.
28. In State of Haryana v Bhajanlal [1992 Supp. (1) SCC
335] this Court considered the scope of the High Court‟s power
under Section 482 of Cr.P.C and Article 226 of the Constitution to
quash the FIR registered against the respondent, referred to
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several judicial precedents including those of R.P. Kapoor v.
State of Punjab (supra), State of Bihar v. J.A.C. Saldanha
[1980 (1) SCC 554] and State of West Bengal v. Swapan
Kumar Guha [1982 (1) SCC 561] and held that the High Court
should not embark upon an enquiry into the merits and demerits
of the allegations and quash the proceedings without allowing the
investigating agency to complete its task. At the same time, the
Court identified the following cases in which the FIR or complaint
can be quashed.
(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 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.
29. The ratio of Bhajan Lal‟s case has been consistently followed
in the subsequent judgments. In M/s Zandu Pharmaceutical
Works Ltd. V. Mohd. Sharaful Haque (supra), this Court referred
to a large number of precedents on the subject and observed:
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"11....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. Court must be
careful to see that its decision in exercise of this power is based
on sound principles. The inherent power should not be exercised
to stifle a legitimate prosecution. The High Court being the
highest court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has not been
collected and produced before the court and the issues involved,
whether factual or legal, are of magnitude and cannot be seen in
their true perspective without sufficient material. Of course, no
hard-and-fast rule can be laid down in regard to cases in which
the High Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. It would not be proper for
the High Court to analyse the case of the complainant in the light
of all probabilities in order to determine whether a conviction
would be sustainable and on such premises arrive at a conclusion
that the proceedings are to be quashed. It would be erroneous to
assess the material before it and conclude that the complaint
cannot be proceeded with. In a proceeding instituted on
complaint, exercise of the inherent powers to quash the
proceedings is called for only in a case where the complaint does
not disclose any offence or is frivolous, vexatious or oppressive. If
the allegations set out in the complaint do not constitute the
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offence of which cognizance has been taken by the Magistrate, it
is open to the High Court to quash the same in exercise of the
inherent powers under Section 482 of the Code. It is not,
however, necessary that there should be meticulous analysis of
the case before the trial to find out whether the case would end
in conviction or acquittal. The complaint has to be read as a
whole. It, if appears that on consideration of the allegations in the
light of the statement made on oath of the complainant that the
ingredients of the offence or offences are disclosed and there is
no material to show that the complaint is mala fide, frivolous or
vexatious, in that event there would be no justification for
interference by the High Court. When an information is lodged at
the police station and an offence is registered, then the mala fides
of the informant would be of secondary importance. It is the
material collected during the investigation and evidence led in
court which decides the fate of the accused person. The
allegations of mala fides against the informant are of no
consequence and cannot by themselves be the basis for quashing
the proceedings.
In the aforementioned judgment, this Court set aside the
order of the Patna High Court and quashed the summons issued
by the First Class Judicial Magistrate in Complaint Case No.1613)
of 2002 on the ground that the same was barred by limitation
prescribed under Section 468 (2)) Cr.P.C.
Page 21 of 42
30. In Ramesh Chand Sinhas case (supra) this Court quashed the
decision of the Chief Judicial Magistrate, Patna to take cognizance
of the offence allegedly committed by the appellants by observing
that the same was barred by time and there were no valid
grounds to extend the period of limitation invoking section 473
Cr.P.C.
11. Thereafter, in paragraph No.31 of the judgment Hon‟ble Supreme
Court has held as under:-
"A careful reading of the above noted judgments makes it clear
that the High Court should be extremely cautious and slow to
interfere with the investigation and/or trial of criminal cases and
should not stall the investigation and/or prosecution except when
it is convinced beyond any manner of doubt that the FIR does not
disclose commission of any offence or that the allegations
contained in the FIR do not constitute any cognizable offence or
that the prosecution is barred by law or the High Court is
convinced that it is necessary to interfere to prevent abuse of the
process of the court. In dealing with such cases, the High Court
has to bear in mind that judicial intervention at the threshold of
the legal process initiated against a person accused of committing
offence is highly detrimental to the larger public and societal
interest. The people and the society have a legitimate expectation
that those committing offences either against an individual or the
society are expeditiously brought to trial and, if found guilty,
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adequately punished. Therefore, while deciding a petition filed for
quashing the FIR or complaint or restraining the competent
authority from investigating the allegations contained in the FIR
or complaint or for stalling the trial of the case, the High Court
should be extremely careful and circumspect. If the allegations
contained in the FIR or complaint discloses commission of some
crime, then the High Court must keep its hands off and allow the
investigating agency to complete the investigation without any
fetter and also refrain from passing order which may impede the
trial. The High Court should not go into the merits and demerits
of the allegations simply because the petitioner alleges malus
animus against the author of the FIR or the complainant. The
High Court must also refrain from making imaginary journey in
the realm of possible harassment which may be caused to the
petitioner on account of investigation of the FIR or complaint.
Such a course will result in miscarriage of justice and would
encourage those accused of committing crimes to repeat the
same. However, if the High Court is satisfied that the complaint
does not disclose commission of any offence or prosecution is
barred by limitation or that the proceedings of criminal case
would result in failure of justice, then it may exercise inherent
power under Section 482 Cr.P.C."
12. In the case of M/S Indian Oil Corporation vs. M/S Nepc
India Ltd., & Ors reported in 2006 (6) SCC 736, Hon‟ble Supreme
Page 23 of 42
Court has culled out the relevant principle for the purpose of quashing
complaint as under:- :
(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
Page 24 of 42
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 proceeding 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. Again, in the case of Dineshbhai Chandubhai Patel Vs. The
State Of Gujarat, reported in (2018) 3 SCC 104, following earlier
decision in State Of West Bengal & Ors vs. Swapan Kumar Guha
& Ors., reported in (1982) 1 SCC 561, it has been held that High
Court cannot decide the issue arising out of the case like an
investigating agency or/and appellate authority decides, by little
realizing that it was exercising its inherent jurisdiction under Section
482 of the Code of Criminal Procedure. In the case of Swapan Kumar
Guha (supra), it was held that right of inquiry is conditioned by the
Page 25 of 42
existence of reason to suspect the commission of a cognizable offence
and they cannot, reasonably, have reason so to suspect unless the
F.I.R., prima facie, discloses the commission of such offence. If that
condition is satisfied, the investigation must go on. The Court has then
no power to stop the investigation, for to do so would be to trench
upon the lawful power to investigate into cognizable offences.
14. Thereafter, in the case of M/s Neeharika Infrastructure Pvt.
Ltd. (supra), by a three Judge Bench of Hon‟ble Supreme Court has
dealt with the issues as under:-
************
***********
(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;
********** Page 26 of 42 *************
(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 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;
*********** **************
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;
*********** ***********."
15. In the case Mohd. Akram Siddiqui v. State of Bihar reported in (2019) 13 SCC 350, where it has been held as under:-
"5. Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding Page 27 of 42 will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung v. Essem Chemical Industries; State of Haryana v. Bhajan Lal and Harshendra Kumar D. v. Rebatilata Koley to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered."
16. Again in the case of CBI v. Arvind Khanna, reported in (2019) 10 SCC 686, Hon‟ble Supreme Court has held as under :-
"17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.
18. In our view, the assessment made by the High Court at this stage, when the matter has been taken Page 28 of 42 cognizance of by the competent court, is completely incorrect and uncalled for."
17. The proposition of law, which can be crystallized from the discussion made herein above, is that this court cannot embark on an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. Exercise of the inherent powers to quash the proceedings, when it is instituted on complaint, is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The requirement is that the complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, then the inherent powers under Section 482 of the Code can be invoked and quash the same.
18. Bearing the above principles in mind, now an endeavour will be made to find out whether any case for quashing the criminal proceeding arising out of the First Information Report No. Page 29 of 42 RC0172022A0007, dated 28.09.2020, registered under sections 120B IPC read with section 7 and 7 (A) of the Prevention of Corruption Act, 1988, is made out or not.
19. Here in this case, I find that following facts and circumstances have emerged from a bare perusal of the First Information Report, No. RC0172022A0007, dated 28.09.2020:-
(i) The respondent No.2, Shri Chittaranjan Nath, is the proprietor of Pawan Enterprise, Tezpur who had executed construction works in (i) NF Railway, Maligaon, and in some other establishments such as Central Assam Electricity Distribution Company, Assam Power Distribution Company, Tezpur Municipality Board, Apeejay Tea Limited.
(ii) During the year 2013 to 2017 he had raised bills from the N.F. Railway and also received payment.
(iii) Then, on the basis of receipt of payment, the Additional Commissioner, Central Goods and Service Tax, Dibrugarh raised a demand of service tax, amounting Rs. 48,43,034/ vide adjudication order No. 02/ADC/ADJ/ST/COMMR/DIB/ 18/2021-22, dated 23.07.2021.
(iv) Against the said order, dated 23.07.2021, the respondent No.2 had filed one appeal before present petitioner, who was serving at the material point of time, as Commissioner Page 30 of 42 of (Appeals), CGST, Central Excise & Customs, Guwahati on 19.10.2021.
(v) Though the hearing of the said appeal took place before the petitioner, yet, he did not pass any order;
(vi) Instead he had demanded an illegal gratification of Rs.
4,50,000/ from the respondent No.2;
(vii) Ultimately, he had agreed to accept bribe of Rs. 3.75,000/ and directed the complainant to pay the said amount to Shri Rajendra @ Amol D. Medhekar (A-2).
(viii) Then accused Rajendra (A-2) had directed the complainant to hand over the said sum to Shri Avinash (A-3);
(ix) Then accused Avinash (A-3) had directed the complainant to hand over the said sum to one hawala agent, namely Shri Mahabir (A-4) which was confirmed by Rajendra(A-2)
(x) Then accused Mahabir (A-4) had directed the respondent No.2 to handover the said amount of illegal gratification to him at Mahabir Bhawan, Athgaon, Guwahati
(xi) Then accused Mahabir (A-4) demanded a brokerage charge, amounting Rs. 8,000, totaling Rs.3,83,000/, on 28.09.2022 from the respondent No.2;
Page 31 of 42(xii) Thereafter, respondent No.2 had lodged the FIR and upon registration of the same a trap was laid on 28.09.2022, and accused Mahabir (A-4) was caught red handed in his shop No. 29 at Mahabir Bhawan, while demanding and accepting Rs.3,83,000/ on behalf of the petitioner, from the respondent No.2;
(xiii) Thereafter, having carried out the investigation charge sheet was laid on 25.01.2023, against the present petitioner, Shri Avinash (A-3) and Shri Mahabir Jain Shyamsukha (A-4) to stand trial under section 7 & 7A of Prevention of Corruption Act, 1988 read with section 120 (B) IPC;
(xiv) Thereafter, on 17.02.2023, a supplementary charge sheet was filed against accused Shri Rajendra @ Amol D. Medhekar (A-2), to stand trial under section 120-B/419 IPC and under section 7 & 7 A of Prevention of Corruption Act and under section 66B of Information Technology Act, 2000.
20. The scanned copy of the case record of the learned court below also indicates that the I.O. had examined several witnesses and collected sufficient incriminating materials against the present petitioner, in support of the allegations made in the FIR and thereafter submitted charge sheet against the present petitioner along with three others.
Page 32 of 4221. These facts and circumstances, as enumerated in paragraph No.14 above, that have emerged from a bare perusal of the FIR and from the scanned copy of the record of the learned court below, goes a long way to indicate the foundational facts constituting the offence under section 120B IPC and section 7 and 7A of the Prevention of Corruption Act are clearly made out against the present petitioner. And if we consider the submission of Ms. Bordoloi, in the light of the principles laid down in the case of M/s Neeharika Infrastructure Pvt. Ltd. (supra), as discussed herein above, we are left unimpressed by her submission that no case is made out against the petitioner and that the story, so set out in the FIR, is improbable. And therefore, we are unable to record concurrence with the same.
22. As discussed herein above, in the case in hand, the allegations against the petitioner are under sections 7 & 7A of Prevention of Corruption Act, 1988 read with section 120 B IPC. Further, the factual foundation of the said offences seems to be clearly laid in no uncertain terms in the FIR. And further it appears from the scanned copy of the record of the learned court below that sufficient materials are collected by the I.O. during investigation, in support of the allegations made in the FIR. Whether said factual foundation of the offences laid in the complaint would be sufficient to disclose the ingredients of the offences against petitioners, has to be considered at the stage of trial. Such an enquiry cannot be embarked on at this stage as held by Hon‟ble Supreme Court in the case of M/s Neeharika Infrastructure Pvt.
Page 33 of 42Ltd. (supra), Mohd. Akram Siddiqui (supra) Arvind Khanna (Supra).
23. There is nothing on the record to suggest that the legal process is being utilized for any oblique purpose by the respondents. Though it was argued strenuously by Ms. Bordoloi, the learned Counsel for the petitioner, that the FIR was being lodged with mala-fide intention against the petitioner by the respondent No.2, yet, in the given facts and circumstances of the case in hand, and as discussed herein above, the said submission left this court unimpressed. Therefore, the ratio laid down in the case of Bhajanlal's (supra), as relied upon by Ms. Bordoloi would not advance the case of the petitioner.
24. It is to be noted here that in the case of P. Chidambaram (supra) it has been held by the Hon‟ble Supreme Court that power under section 482 Cr.P.C. is to be exercised in rare cases, where there is a clear abuse of power and non-compliance of the provisions falling under Chapter-XII of the Code of Criminal Procedure.
Requirement of Preliminary Enquiry:-
25. The requirement of preliminary enquiry before registration of an FIR has been dealt with by Hon‟ble Supreme Court in Thommandru Hannah Vijayalakshmi(supra), wherein it has been held as under:-
"In view of the above discussion, we hold that since the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under Page 34 of 42 the CrPC, PC Act or even the CBI Manual, for this Court to issue a direction to that affect will be tantamount to stepping into the legislative domain. Hence, we hold that in case the information received by the CBI, through a complaint or a "source information" under Chapter 8, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence."
26. It is to be noted here that Hon‟ble Supreme Court has considered its earlier decision in Lalita Kumari (supra), in the above noted case. Thus, it appears that preliminary enquiry is no longer mandatory when the FIR or complaint discloses commission of a cognizable offence and as such this court is unable to agree with the submission of Ms. Bordoloi, learned counsel for the petitioner. On the other hand, I find substance in the submission of Mr. Haloi, the learned counsel for the respondent No.2 and the case law referred by him also strengthen his submissions. Therefore, this court is inclined to record concurrence with the submissions of Mr. Haloi.
Delayed prosecution sanction:-
27. The record reveals that after completion of investigation the investigating officer had submitted charge sheet on 25.01.2023, under section 7 & 7A of Prevention of Corruption Act 1988 read with section 120 (B) IPC against the present petitioner along with Shri Avinash (A-
3), Shri Mahabir Jain Shyamsukha (A-4) and supplementary charge Page 35 of 42 sheet on 17.02.2023, against accused Shri Rajendra @ Amol D. Medhekar (A-2), to stand trial under section 120-B/419 IPC and under section 7 & 7 A of Prevention of Corruption Act 1988 and under section 66B of Information Technology Act, 2000. But, the prosecution sanction, as it appears from the Annexure -„A‟ of the additional affidavit of the respondent No.1, dated 10.11.2023, to prosecute the petitioner was granted by the President on 17.08.2023, vide Sanction Order No. 05/2023.
28. While dealing with the timeline of granting prosecution sanction under section 19 of the of the 1988 Act, in the case of Vineet Narain (supra) Hon‟ble Supreme Court has issued some direction to the Central Bureau of Investigation and also to the Central Vigilance Commission (CVC) and one of the directions, amongst others is that:-
"15. Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month, may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office."
29. Thus, there appears to be substance in the submission of Ms. Bordoloi, the learned counsel for the petitioner. But, what remains to be seen is what would be the consequence of violation of above timelines and can it be a ground for quashing the proceeding. Be it noted here that the learned counsel for the petitioner has canvassed this issue of violation of timeline as one of the grounds for quashing the petition.
Page 36 of 42This question stands answered by Hon‟ble Supreme Court in the case of Vijay Rajmohan v. CBI, reported in (2023) 1 SCC 329, in the following paragraphs:-
"30. The intention of Parliament is evident from a combined reading of the first proviso to Section 19, which uses the expression "endeavour" with the subsequent provisions. The third proviso mandates that the extended period can be granted only for one month after reasons are recorded in writing. There is no further extension. The fourth proviso, which empowers the Central Government to prescribe necessary guidelines for ensuring the mandate, may also be noted in this regard. It can thus be concluded that Parliament intended that the process of grant of sanction must be completed within four months, which includes the extended period of one month.
31. If it is mandatory for the sanctioning authority to decide in a time-bound manner, the consequence of non- compliance with the mandatory period must be examined. This is a critical question having no easy answer. In Subramanian Swamy (2012) 3 SCC 64, this Court suggested that Parliament may consider providing deemed sanction if a decision is not taken within the prescribed period. The appellant herein contends the very opposite that the criminal proceedings must be quashed if the decision is not taken within the prescribed period.
32. In the first place, non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceedings because the prosecution of a public servant for corruption has an element of public Page 37 of 42 interest having a direct bearing on the rule of law [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC
64. The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of the rule of law which is fundamental in the administration of justice. Delay in granting such sanction has spoilt many valid prosecutions and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds. ...77. By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and determination of the allegations against corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right."] . This is also a non- sequitur. It must also be kept in mind that the complainant or victim has no other remedy available for judicial redressal if the criminal proceedings stand automatically quashed. At the same time, a decision to grant deemed sanction may cause prejudice to the rights of the accused as there would also be non-application of mind in such cases.
33. It is in between these competing interests that the Court must maintain the delicate balance. While arriving at this balance, the Court must keep in mind the duty cast on the competent authority to grant sanction within the stipulated period of time. There must be a consequence of dereliction of duty to giving sanction within the time specified. The way Page 38 of 42 forward is to make the appointing authority accountable for the delay in the grant of sanction."
30. In view of above decision, this court is of the considered opinion that there is no merit in the submission of Ms. Bordoloi, the learned counsel for the petitioner. Accordingly, the same stands repudiated.
Mala fides, ulterior motive on the part of the informant to falsely implicate the petitioner:-
31. Though, the learned counsel for the petitioner submits that the complainant/respondent No.2 had implicated the petitioner falsely as he was already facing tax liability of Rs. 1,55,77,366 and 20% interest, yet, such a plea, which appears to be an ex-facie a defence plea that has to be considered at the stage of trial. It is worth mentioning herein this context that in the case of State of Bihar v J.A.C. Saldhana and Ors., reported in (1980) 2 SCR 16 Hon‟ble Supreme Court has held that when the information is lodged at the police station and an offence is registered, the mala fides of the informant would be of secondary importance. It is the material collected during the investigation which decides the fate of the accused person. Same principle is echoed in the case of M/s Zandu Pharmaceutical Works Ltd. vs. Md. Sharaful Haque & Anr. reported in 2005 (1) SCC 122, also wherein Hon‟ble Supreme Court has held that when an information is lodged at the police station and an offence is registered, then the mala-fides of the informant would be of secondary importance. It is the material collected Page 39 of 42 during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. Notably, in the above mentioned case, Hon‟ble Supreme Court has also taken into consideration its earlier decision in Bhajanlal (supra).
32. Again in the case of Central Bureau of Investigation vs. Aryan Singh etc. reported in 2023 SCC OnLine SC 379, Hon‟ble Supreme Court has held as under:-
"11. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge sheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried."
Violation of law relating to FIR, including delay, arrest, personal search, trap proceeding:-
Page 40 of 4233. Though the learned counsel for the petitioner has submitted that the respondent CBI had violated the relevant provision of law relating to filing of FIR, arrest, personnel search, pre-trap and post trap proceeding and also pointed out about delay in lodging the FIR, yet, this court is of the considered view that these issues can be looked into at the trial not at this stage, as held in the case of Aryan Singh (supra) where it has been held that in an application for quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini trial.
34. Thus, form the given facts and circumstances on the record and also from the submissions, so advanced by Ms. Bordoloi, the learned counsel for the petitioner, this court is unable to derive its satisfaction that very exceptional circumstances or „rarest of rare case‟ is found to be made out by the petitioner so as to invoke the extra ordinary jurisdiction of this court, under section 482 Cr.P.C., as held in the case of Bhajan Lal (supra) and in M/s Neeharika Infrastructure Pvt. Ltd. (Supra). I have carefully gone through the other judgments, referred by Ms. Bordoloi, the learned counsel for the petitioner. There is no quarrel at the Bar about the proposition of law, so laid down in the said cases. But, reference to all those judgments, to the considered opinion of this court, is found to be not necessary to decide the issue so raised in this petition and therefore, detail discussion of the same is found to be not necessary at this stage.
Page 41 of 4235. In the result, I find no merit in this petition and accordingly, the same stands dismissed. The parties have to bear their own costs. Stay, if any, granted earlier, stands vacated.
JUDGE Comparing Assistant Page 42 of 42