Gauhati High Court
Maheswar Talukdar vs The State Of Assam on 29 September, 2021
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
Page No.# 1/11
GAHC010158352021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2561/2021
MAHESWAR TALUKDAR
SON OF LATE BRIHASPATI TALUKDAR
R/O WARD NO. 4,
MUGURIA PRAGOTI NAGAR,
PATHSALA, P.S. PATACHARKUCHI, DIST. BAJALI, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR H SARMA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
Date : 29-09-2021 Heard Mr. SN Sarma, learned senior counsel assisted by Mr. HK Sarma, learned counsel for the petitioner. Also heard Mr. M Phukan, learned Public Page No.# 2/11 Prosecutor, appearing for the State respondent.
This is an application, filed under Section 439 of the Cr.PC. seeking bail of the accused-petitioner, namely, Maheswar Talukdar, in connection with Patacharkuchi Police Station Case No. 479/2021 registered under Sections 120(B)/420/409/467/468/471 of the IPC read with Sections 7/7(A)/12 of the Prevention of Corruption Act.
I have heard the learned senior counsel for the petitioner and also heard the common argument of Mr. M. Phukan, learned Public Prosecutor, Assam appearing for the State Respondent.
To understand the allegations against the petitioner, this Court would like to quote the FIR filed by the Deputy Commissioner, Bajali, dated 20.09.2021, which reads as under:
"With reference to the subject cited above, it is informed that the Revenue Circle offices are most important field level government offices which maintain record of lands belonging to government and private pattadars. These offices provide various citizen centric service like mutation, partition of land, issuing land holding certificates, land pattas processing of No- Objection certificates for land sale, etc. These services are very essential for general public without which their land transmission will be held up.
In order to strengthen the Revenue administration in the State of Assam, the Page No.# 3/11 Government had taken several initiatives. While addressing in the conference of ADC (Rev.), Circle Officers and attached Circle officers Hon'ble Chief Minister, Assam strictly warned against any sort of irregularities and corrupt practices in the Revenue Circles.
In view of the above, the undersigned request you to investigate against 17 (seventeen) brokers as indicted in the list enclosed with the letter under reference regarding alleged irregularities and corrupt practices and to book as per provisions of law."
On receipt of the above FIR, the Superintendent of Police, Bajali, forwarded the same to the Officer-in-Charge of Patacharkuchi Police Station on the same day i.e. on 20.09.2021 with instruction to register a case. The letter containing the above instructions is reproduced below for better understanding and appreciation:
"In enclosing herewith a copy of letter in original received from Shri Bharat Bhushan Dev Choudhury, IAS, Deputy Commissioner of Bajali District which will speak for itself.
Henceforth, you are hereby directed to register a case under proper section of law against all 17 (seventeen) numbers of land brokers as indicated in the list and investigate the case as per proper Page No.# 4/11 procedure of law. The action taken from your end may intimate to the undersigned within 2 (two) days for further necessary instructions. The list of 17 (seventeen) numbers of land brokers is enclosed herewith. The matter is MOST URGENT."
Learned senior counsel for the petitioner has submitted that the FIR itself does not disclose any cognizable offence as required under Section 154 of the Code of Criminal Procedure and, therefore, the case could not have been registered by the police. It has further been submitted that in the instant case, taking into account the fact that cognizable offence has not been disclosed in the FIR, the accused petitioner could not have been arrested. Learned senior counsel for the petitioner has also referred to the guidelines contained in the case of Lalita Kumari Vs. Government of Uttar Pradesh, reported in (2014) 2 SCC 1, in paragraphs 120.1 to 120.6 therein, which are reproduced below:
120.1. Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the Page No.# 5/11 commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases Page No.# 6/11
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry."
There is no denial of the fact that there is any instance on record to show that any preliminary enquiry was made in the light of the decision in Lalita Kumari (supra).
Resisting such submissions and vehemently opposing the prayer for bail of the petitioner, Mr. Phukan, learned Public Prosecutor has submitted that an FIR is not an encyclopedia requiring to reflect every details, rather, according to him, it is with a view to set the investigating machinery to motion, and to substantiate his such argument, he has referred to the decision of the Hon'ble Supreme Court in State of Uttar Pradesh Vs. Krishna Master and others, reported in (2010) 12 SCC 324, particularly paragraph-66 thereof, which is quoted below:
"66. As far as this aspect is concerned, this Court notices that the FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. The main purpose of the FIR is to enable a police officer to satisfy himself as to whether commission of cognizable offences Page No.# 7/11 is indicated so that further investigation can be undertaken by him. The purpose of the FIR is to set the criminal law in motion and it is not customary to mention every minute detail of the prosecution case in the FIR. FIR is never treated as a substantive piece of evidence and has a limited use, i.e., it can be used for the corroborating or contradicting the maker of it."
In this context, he has also referred to the decision in Kirender Sarkar & Ors vs State Of Assam, reported in (2009) 12 SCC 342, wherein the Hon'ble Supreme Court in para-11 held as follows :
"11. The law is fairly well settled that FIR is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events. When essentially material facts are disclosed in the FIR that is sufficient. FIR is not substantive evidence and cannot be used for contradicting testimony of the eye witnesses except that may be used for the purpose of contradicting maker of the report. Though the importance of naming the accused persons in the FIR cannot be ignored, but names of the accused persons have to be named at the earliest possible opportunity."
Page No.# 8/11 He has further referred to the decision in Alagarsamy & Ors vs. State By Deputy Superintendent Of Police, Madurai reported in (2010) 12 SCC 427, in para 39, to impress this Court on the issue that the FIR is not a be-all and end-all of the matter, wherein it has been held as follows:
"39. After all, the FIR is not a be-all and end- all of the matter, though it is undoubtedly, a very important document. In most of the cases, the FIR provides corroboration to the evidence of the maker thereof. It provides a direction to the Investigating Officer and the necessary clues about the crime and the perpetrator thereof. True it is that a concocted FIR, wherein some innocent persons are deliberately introduced as the accused persons, raises a reasonable doubt about the prosecution story, however, a vigilant, competent and searching investigation can despoil all the doubts of the Court and on the basis of the evidence led before the Court, the Court can weigh the inconsistencies in the FIR and the direct evidence led by the prosecution. It is not a universal rule that once FIR is found to be with discrepancies, the whole prosecution case, as a rule, has to be thrown. Such can never be the law."
Page No.# 9/11 In the light of the submissions made by the learned counsel senior for the petitioner, this Court would like to decide the bail prayer of the petitioner on merit on the basis of the materials available/placed before this Court. So far the legal issues raised, as indicated above, suffice it to say that this Court is dealing with applications for bail and not a proceeding for quashment challenging legality of the FIR itself. Therefore, this Court would confine itself to the materials in the case diary vis-à-vis the FIR for consideration of the prayer for bail of the petitioner.
On perusal of the case diary, it is found that certain documents/papers were seized from the petitioner, as indicated below:-
Maheswar Talukdar- two original sale deeds and one photo copy of the sale deed over non judicial stamp papers.
There is no instance in the case diary to indicate that these seized documents are not legal or were executed by practicing fraud etc. The seizure witnesses have subscribed to the seizures only and, on merit of the facts, they are not found to have made any statement. There is also no material in the case diary to indicate that the aforesaid documents/papers, bank pass books etc. seized were illegal or procured by any means not approved by law. There is also no instance found in the case diary, as of now, that the petitioner had bribed or influenced some public servant and no public servant is found to have been named in the instant case to have been involved with such offences. On the other hand, the FIR contains only vague and unspecific allegation. There is also no material on record to indicate that any person has made specific complaint against the petitioners in respect of commission of offences punishable under the provisions of law under which the case has been registered.
Page No.# 10/11 On perusal of the entire materials in the case diary, as indicated above, this Court finds that the petitioner deserves to be granted bail in the absence of specific accusation with materials subscribing such accusation at this moment. In view of the above, in the considered view of this Court, the petitioner is entitled to grant of bail.
Accordingly, the accused-petitioner, named above, shall be released on bail in connection with the case aforementioned on their furnishing bail bond of Rs.30,000/- with one suitable surety of the like amount, to the satisfaction of learned Special Judge, Assam.
The direction for bail is further subject to the conditions that the accused- petitioner:
(a) shall not leave the territorial jurisdiction of learned Special Judge, Assam, without prior written permission from him;
(b) shall not hamper with the investigation, or tamper with the evidence of the case;
(c) shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
(d) shall during the continuation of the investigation, the petitioner shall not meet/communicate with any of the witnesses of the case, in any manner.
This Court would like to make it clear that the order granting bail to the Page No.# 11/11 petitioner is made on the basis of the materials available in the case diary in respect of individual petitioner and, therefore, shall not be treated as a precedent for other accused.
In terms of the above, this bail application stands disposed of. Return the case diary.
JUDGE Comparing Assistant