Gauhati High Court
Dr. Brijesh Kumar Rai vs The State Of Assam And Anr on 22 February, 2022
Author: Robin Phukan
Bench: Robin Phukan
Page No.# 1/11
GAHC010314872019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1510/2019
DR. BRIJESH KUMAR RAI
S/O SRI JAGANNATH PRASAD RAI, R/O QUARTER NO. C-66, FACULTY
QUARTERS, INDIAN INSTITUTE OF TECHNOLOGY GUWAHATI (IIT
GUWAHATI), P.S.-NORTH GUWAHATI, DIST-KAMRUP, ASSAM, PIN-781039
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:DR. GAURAV TRIVEDI
S/O VIDHYA BHUSAN SHARMA
R/O QUARTER NO. D-89
FACULTY QUARTERS
INDIAN INSTITUTE OF TECHNOLOGY GUWAHATI (IIT GUWAHATI)
P.S.-NORTH GUWAHATI
DIST-KAMRUP
ASSAM
PIN-78103
Advocate for the Petitioner : Mr. S. Dey
Advocate for the Respondent : Ms. S. Jahan, Addl. P.P., Assam
Mr. B. Chakravorty, for R.2 Page No.# 2/11 :::BEFORE:::
HON'BLE MR. JUSTICE ROBIN PHUKAN Date of hearing : 20.01.2022 Date of verdict : 22.02.2022 VERDICT (CAV) This Application under Section 482 of the Cr.P.C. is preferred by the petitioner, namely, Dr. Brijesh Kumar Rai, for quashing the F.I.R. No. 105/2019 of North Guwahati Police Station and the Charge-Sheet No. 50/2019 filed by the North Guwahati Police Station in criminal proceeding of PRC Case No. 367/2019, pending before the Court of learned Chief Judicial Magistrate, Kamrup, Amingaon.
2. The factual background leading to filing of the present petition is briefly stated as under:
"The petitioner is serving as Assistant Professor at IIT, Guwahati. In the year 2015, the petitioner had brought to light the irregular manner in which M. Tech Programme of one Mr. Neeraj Kumar was being conducted by his Supervisor-Dr. Gaurav Trivedi, the respondent No. 2 herein, in contravention of M. Tech Ordinances of IIT, Guwahati. Consequent upon the said irregular case being pointed out by the petitioner, studentship of Page No.# 3/11 Mr. Neeraj Kumar was terminated. The role of respondent No. 2, which raised serious question about his integrity, was ignored and no action was taken against him and since then the respondent No. 2 was vindictive towards the petitioner. In the late 2018, the petitioner had informed the authorities of IIT, Guwahati that the respondent No. 2 was trying to implicate him and to force him to commit some mistake. Then on 26.07.2019, the respondent No. 2 interrupted a lecture being delivered by the petitioner and repeated the same on 02.08.2018. When the petitioner asked the respondent No. 2 to desist from interpreting his lecture, then some argument took place between him and the respondent No. 2 and the respondent No. 2 provoked the petitioner by passing comments on the age of the petitioner's wife and, subsequently, the petitioner lodged a complaint with the Director of IIT, Guwahati and, thereafter, the respondent No. 2 also lodged a complaint with the Director of IIT, Guwahati against the petitioner. The respondent No. 2 also lodged an F.I.R. against the petitioner even though he was the actual culprit. The respondent No. 2 is a dishonest person with questionable morality and victimized the petitioner for pointing out the irregularities committed by the respondent No. 2 and he harassed the petitioner by abusing the process of law and, therefore, the petitioner approached this Court praying for quashing the F.I.R. No. 105/2019 of North Guwahati police Station and the subsequent Charge-Sheet No. 50/2019 in connection with the aforesaid F.I.R. and also the criminal proceeding of PRC Case No. 367/2019, pending before the Court of learned Chief Judicial Magistrate, Kamrup, Amingaon.
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3. The respondent No. 2 also filed objection to the petition filed by the petitioner, wherein, he has denied each and every averments made by the petitioner in his petition. It is stated that the petitioner is a very arrogant and rogue kind of person and in a incident that took place on 23.09.2017, the petitioner assaulted an Assistant Professor of IIT, Guwahati, Dr. B. Anand, and a criminal proceeding, being North Guwahati P.S. Case No. 88/2017, under Sections 341/294/325/506 IPC, is pending against him and the Charge-Sheet has been filed and now the proceeding is pending for trial before the Chief Judicial Magistrate, Kamrup (R). And in connection with the said case, disciplinary proceeding was also initiated against the petitioner, which culminated in imposing of major punishment of compulsory retirement upon the petitioner, vide Order dated 01.01.2020, and as such, he is not now in service of IIT, Guwahati. It is also stated that the present petition has been filed by the petitioner with mala fide intention to mislead this Court for setting aside the duly instituted criminal proceeding against him and therefore, it is contended to dismiss the petition."
4. Heard Mr. S. Dey, learned counsel for the petitioner. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. B. Chakravorty, learned counsel for the respondent No. 2.
5. Mr. S. Dey, learned counsel for the petitioner, submits that the F.I.R. against the petitioner was lodged with mala fide intention and that the case has been registered under Sections 294/323/506 of the Indian Penal Code and except Section 294 of the Indian Penal Code, all the offences are non-cognizable and the ingredients of the offences, as alleged in the F.I.R. and Charge-Sheet, Page No.# 5/11 are not made out and as such, the filing of F.I.R., investigation thereof and the trial pending before the Court of learned Chief Judicial Magistrate, Amingaon, is nothing but an abuse of the process of law and, therefore, it is contended to allow the petition by quashing the aforesaid F.I.R. and the subsequent Charge- Sheet and the proceeding of PRC Case No. 367/2019, pending before the learned Court below. In support of his submission, Mr. Dey, learned counsel for the petitioner, also referred following case laws to make good of his submission.
(i) Maqbool Fida Husain Vs. Rajkumar Pandey & etc. : 2008 SCC OnLine Del 562;
(ii) Director General, Directorate General of Doordarshan & Ors. :
(2006) 8 SCC 433;
(iii) Ajay Goswami Vs. Union of India & Ors.: (2007) 1 SCC 143.
6. On the other hand, Mr. B. Chakraborty, learned counsel for the respondent No. 2, submits that none of the ground mentioned in the petition has been substantiated here in this case and the petition is not at all maintainable and the registration of the case and the subsequent investigation and submission of Charge-Sheet thereof is not the abuse of the process of law and, therefore, Mr. Chakraborty, learned counsel for the respondent No. 2, contended to dismiss the petition. Mr. Chakraborty, learned counsel for the respondent No. 2, also referred one case law of Hon'ble Supreme Court in Gorige Pentaiah Vs. State of Andhra Pradesh, reported in (2008) 12 SCC 531, in support of his submission.
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7. Whereas, Ms. S. Jahan, learned Additional Public Prosecutor for the State respondent No. 1, submits that no offence under Sections 194/323/506 IPC is made out from a bare perusal of the FIR and the Charge-Sheet and as such, the petition for quashing the proceeding is not maintainable. Ms. Jahan also referred one case law of Kerela High Court in Dhanisha vs. Rakhi N. Raj & Ors. :MANU/KE/0611/2012, to contend that in the given facts and circumstances on the record and the tone and tenor of the words and the meaning of the words used and the shock caused to the respondent No. 2 and intention behind using it before his students clearly shows that the offence under Section 294 IPC is made out against the petitioner.
8. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also the case laws referred to by the learned Advocates of both sides and I find sufficient force in the submissions, so advanced by Mr. B. Chakraborty, learned counsel for the respondent No. 2 as well as by Ms. S. Jahan, learned Additional Public Prosecutor for the State respondent No. 1 and I find that the case law, viz, Gorige Pentaiah (supra), also fortify their submissions.
9. While dealing with the power of High Court, under Section 482 of the Cr.P.C., the Hon'ble Supreme Court, in the case of Gorige Pentaiah (supra), has held as under:
"This Court in number of cases has laid down the scope and ambit of Courts' power under Section 482 of the Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent Page No.# 7/11 abuse of the process of the Court. Inherent power under Section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of Court; and
(iii) to otherwise secure the ends of justice.
Inherent power under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this Section itself. Authority of the Court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."
10. In State of Haryana Vs. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Hon'ble Supreme Court has held only in following cases, by way of illustration, the power under section 482 Cr.P.C. or the extra-ordinary power under Article 226 of the Constitution of India can be exercised to quash an FIR, :-
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an 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 F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case Page No.# 8/11 against the accused.
(4) Where, the allegations in the F.I.R. 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 F.I.R. 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."
11. It is to be mentioned there that the F.I.R. (Annexure-7), dated 02.08.2019, which is being sought to be quashed here in this petition, was lodged by the respondent, Dr. Gaurav Trivedi, alleging that on 02.08.2019, in between 10.57 a.m. to 11.00 a.m., he requested the petitioner, Dr. Brijesh Kumar Rai, to finish his class. But, the petitioner took some more time to finish his lecture and after that he came out of the class and threatened the respondent not to disturb him otherwise he has to face dire consequences. Then the respondent asked the petitioner repeatedly not to use filthy language and not to threaten him else he will report to the competent authority and by that Page No.# 9/11 time, the whole of M. Tech 1 st year Communication Engineering students gathered around them and the petitioner continued using filthy words such as "Madarchod", "Behanchod", "Suar" etc. in front of all the students, security officer, academic section persons etc. and thereafter, he congratulate the petitioner for his marriage in a cordial way but instead of ending the chaos, the petitioner became violent and held his neck to strangulate him. But the security persons and one of the students saved him otherwise he would have sustained severe injury and in the process, his shirt got torn and the petitioner pushed him as well and the said incident happened in front of many of his students and other persons and he suffered lot of humiliation and mental harassment.
12. Upon the said F.I.R., the Officer-In-Charge, North Guwahati Police Station, registered a case being North Guwahati P.S. Case No. 105/2019, under Sections 294/323/506 of the Indian Penal Code and investigated the same, which culminated in submission of Charge-Sheet, dated 31.08.2019, against the petitioner under Sections 294/323/506 of the Indian Penal Code.
13. A cursory perusal of the F.I.R. and also the Charge-Sheet and further the record of the learned Court below, including the statement of the witness, recorded under Section 161 of the Cr.P.C., this Court left unimpressed by the submission advanced by Mr. S. Dev, learned counsel for the petitioner, that no offence under Sections 294/323/506 of the Indian Penal Code are made out against the petitioner so as to invoke the inherent jurisdiction of this Court under Section 482 of the Cr.P.C. It appears that the petitioner has used filthy words such as "Madarchod", "Behanchod", "Suar" etc. in front of all the students, security officer, academic section persons etc. and thereafter, the Page No.# 10/11 petitioner became violent and held the neck of the respondent to strangulate him in the process his shirt got torn and the petitioner pushed the respondent as well and the said incident happened in front of many of his students and other persons and he suffered lot of humiliation and mental harassment. Thus, a prima-facie case under sections 294/323/506 of the Indian Penal Code appears to be made out against the petitioner and though offence under Sections 323/506 IPC are non-cognizable offence, yet the offence under Section 294 IPC is cognizable offence and as such, police can investigate the same without permission of the Magistrate.
14. I have carefully gone through the case laws: (i) Maqbool Fida Husain (supra) (ii) Director General, Directorate General of Doordarshan & Ors.(supra), and (iii) Ajay Goswami (supra), referred to by Mr. S. Dey, learned counsel for the petitioner, and I find that the aforesaid judgments mainly dealt with the freedom of press and also freedom of expression and also dealt with obscenity. The said cases proceed on their own facts and circumstances and none of the ratios laid down therein are applicable in all force to the facts and circumstances of the instant case. On the other hand I find sufficient force in the submission made by the learned counsel for the respondent No. 2 and 1 and the case laws, referred by them, also fortified the same.
15. The present case does not fall in any of the category of the offence mentioned in the case of Bhajan Lal (supra). Whether the ingredients of the offence under sections 294/323/506 of the Indian Penal Code are made out or not that has to be found out during trial only and it is the function of the Trial Page No.# 11/11 Court, which cannot be determined by this Court while dealing with a petition under Section 482 of the Cr.P.C. It is now a settled proposition of law that the power under section 482 Cr.P.C. has to be exercised sparingly, carefully and with great caution. Reference can be made to a decision of the Hon'ble Supreme Court in the case of Gorige Pentaiah (supra).
16. In the result, I find no merit in this petition and accordingly, the same stands dismissed.
17. Interim order, if any, stands vacated.
18. The parties are directed to appear before the learned Court below and to face trial.
JUDGE Comparing Assistant