Patna High Court - Orders
S.M.Talha Sajid vs The State Of Bihar & Ors. on 6 April, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.147 of 2011
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S.M.Talha Sajid son of S.M. Ashfaque Hussain, R/O Mohalla Fakirakhan,
Ward no. 24, P.S. Laheriasarai, Distt- Darbhanga.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Superintendent of Police, Araria.
3. Officer Incharge of Araria Police Station. Distt-Araria.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Dhananjay Kumar, Adv.
For the Respondent/s : G.P.-7.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
8 06-04-2012Petitioner/accused has filed instant petition with a prayer for quashing of First Information Report of Araria P.S. Case No. 481 of 2010.
2. Succinctly, the case of the prosecution which originates on the basis of self statement of Ram Shankar Singh, O/C of Araria P.S. recorded on 15.11.2010 disclosing therein that he had received letter from S.P. Araria vide Memo No. 4223 dated 01.11.2010, after perusal of which he came to know that during course of supervision of other cases by S.P., S.P. came to know that petitioner S.M. Talha Sajid, the then Deputy Development Commissioner, Araria had directed vide letter no. 1726 dated 02.12.2000 addressed to Block Development Officer, Palasi for depositing the amount allotted against Indira Awas Yojna in Dehti 2 PACS in violation to the Government Circular as a result of which the incumbents could not got the amount.
3. Contention on behalf of the petitioner is that registration of the case happens to be result of incompetency of the S.P. because of the fact that there has been no allegation of misappropriation of Government money at the hands of petitioner. Also submitted that neither the S.P. nor the informant had tried to see the relevant Government's Circular by which the PACS have been allowed to function as a Bank. Further failed to go through the decision of the Government directing the concerned officials to deposit the amount in PACS for the welfare of the PACS. Further failed to acknowledge that Dehti PACS has been identified apart from others to function as a Bank and being a Government Servant, it was expected at his end to obey the direction of the Government, therefore, he had directed the Block Development Officer to deposit the amount authorizing him to operate the account according to requirement (Annexure-2,3,4,5). The aforesaid event have also been incorporated under paragraphs- 4,5,6,7,8 of the writ petition. So submitted that taking into account the averments of the self statement of informant, no offence what to talk about the Sections 406, 420, 120B of the IPC whereunder case has been registered is made out. As such, presence of FIR 3 followed with investigation will serve no fruitful purpose. Hence, the same is liable to be quashed.
4. On the other hand, learned G.P.-7 has refuted the submission advance on behalf of the petitioner and submitted that the court while exercising writ jurisdiction is forbidden to substitute itself as an investigating authority. Further submitted that in rarest of the rare case, the FIR should be permitted to be quashed that too in the background of the fact that taking into account the entirety of the allegation, if no offence is made out. So far present scenario is concerned, from own annexure of the petitioner it is evident that he had directed the Block Development Officer to deposit the amount which was to be disbursed amongst the beneficiaries of Indira Awas Yojna to be deposited in Dehti PACS in utter violation of the rules framed for facilitating Indira Awas Yojna whereunder account was to be opened in a nationalized Bank. Therefore, such action of the petitioner certainly attracts application of Section 420 of the IPC.
5. It is needless to say that FIR in an ordinary course of nature should not be quashed. However, the Hon'ble Apex Court while dealing with the issue in a catena of decision laid down principle and indicated parameters whereupon quashing of FIR has been made permissible. The same found explicated at an 4 earlier occasion in R.P. Kapur's case reported in AIR 1960 SC 866 which had subsequently been elaborately dealt with in State of State of Haryana v. Bhajan Lal & Ors. reported in AIR 1992 SC 604.
6. For better appreciation paragraph 102 of aforesaid judgment is reproduced below:-
"(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 uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of 5 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 grounds for proceedings 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 proceedings 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 malafide 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."
7. Criteria No.1 clearly specifies that if after minute scrutiny of the allegation whatever been leveled in the FIR or the complaint on its face and accepted in its entirety failed to expose a prima facie case or ingredients of any criminal offence, then in that event, the Court has been permitted to quash the FIR. That means to say, considering the allegation in its entirety has to be 6 judged to such extent and in such a manner so that one could visualize whether it attracts or gives an impression with regard to constitution of an offence.
8. Now coming to the case in hand, from plain reading of the FIR which was recorded in accordance with direction of the S.P. who gathered the text during course of supervision of other cases that by an administrative order of the petitioner, B.D.O had deposited the amount allotted for Indira Awas Yojna at Dehti PACS. There is no allegation that a single farthing was misappropriated by the petitioner or the aforesaid administrative order had facilitated misappropriation of the amount allotted for Indira Awas Yojna. In worst case, even ignoring the annexures, it could be said that the amount was deposited in the institution contrary to the Circular meant for disbursement amongst beneficiaries of Indira Awas Yojna and for that petitioner could be administratively dealt with.
9. The most surprising feature on this score comes out from the counter affidavit filed by the State which annexes supervision note of S.P. wherefrom it is evident that to that extent (with regard to depositing the amount at Dehti PACS) has been found true. So far disclosure made under paragraphs-
4,5,6,7,8 of the petition is concerned, the same has been replied 7 under paragraph-7 of the counter affidavit whereunder it has been disclosed that the same happens to be matter of record and so no comment was made thereupon. With regard to paragraphs- 8 and 9, the institution of the case along with supervision note of the S.P. has been endorsed. Thus, the State who happens to be custodian of record and which happens to be the authority for issuing the relevant directions have not questioned the genuineness of Annexure-2,3,4 and 5. That means to say there happens to be direction from the Co-operative Department, State of Bihar requesting other functionaries of the Government to deposit the amount under PACS which have been permitted by the Government to function as a Bank for its betterment as well as welfare.
10. In the aforesaid event, the direction of the petitioner while he was exercising his power as Deputy Development Commissioner directing the B.D.O for depositing the amount at Dehti PACS which has been identified to function as a Bank, cannot be considered to be in violation of any rules nor such action could attract the petitioner to be arrayed as an accused more particularly in the background of the fact that no complaint with regard to cheating, misappropriation has been leveled or alleged. Therefore, this Court finds that the narration 8 of the self statement of the informant coupled with the averments made under counter affidavit does not justify identity of the FIR.
11. Consequent thereupon, the FIR of Araria P.S. Case No. 481 of 2010 is hereby ordered to be quashed. Thus, the petition is allowed.
(Aditya Kumar Trivedi, J) perwez