Gauhati High Court
Akshay Kumar Jaiswal vs The State Of Assam And Anr on 22 September, 2020
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/6
GAHC010262652018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 1214/2018
1:AKSHAY KUMAR JAISWAL
S/O LATE LAKHIRAM JAISWAL
R/O BOKAJAN TOWN,
WARD NO. 05,
P.O. AND P.S. BOKAJAN, DIST. KARBI ANGLONG
VERSUS
1:THE STATE OF ASSAM AND ANR.
REP. BY THE PP, ASSAM
2:SRI BUDHA SINGH
S/O LATE KRISHNA MOHAN SINGH
ASSISTANT SUB-INSPECTOR OF POLICE
KHATKHATI P.S. DIST. KARBI ANGLONG- PIN - 785670
Advocate for the Petitioner : MR. M BISWAS
Advocate for the Respondent : PP, ASSAM
BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA Date : 22-09-2020 JUDGMENT & ORDER (CAV) Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. B.B. Gogoi, learned Addl. P.P. Assam for the respondents.
The petitioner Akshay Kr. Jaiswal (hereininafter referred to as the Page No.# 2/6 petitioner only) has filed this application under Section 482 of the Criminal Procedure Code praying for quashing the FIR No. 119 of 2020 and charge-sheet No. 98/2016 of Khatkhati Police Station in the district of Karbi Anglong.
The factual matrix giving rise to this matter is like this--------- On 20.10.2016, a truck bearing registration No. MN-01-6171 was going towards the State of Nagaland. Just before entering into the State of Nagaland, at Khatkhati check post, the ASI Budha Chandra Singh of Khatkhati police station stopped the truck. He found that the truck was carrying 80 bags Single Super Phosphate (Paras brand).
The police officer suspected that the aforesaid 80 bags of fertilisers were government subsidised fertilisers. He also found some anomalies in the lorry challans No. 56 dated 19.10.2016.
Narrating the aforesaid facts, the officer Budha Chandra Singh filed the FIR before police. The 80 bags fertilisers and documents found in the vehicle were seized by police.
The petitioner was summoned to the police station and he had shown them all his documents.
The petitioner is a wholesale as well as retail licence holder of fertiliser, seeds, insecticides, pesticides etc. He has been doing this business for the last 20 years under the name and style of M/s. Akshay Kumar Jaiswal.
During the pendency of the investigation, on 07.09.2017 the Judicial Magistrate at Diphu had given custody of the seized fertilisers and the documents to the petitioner.
Finally, police filed charge-sheet against the petitioner, under Section 406/411 and 420 of the IPC.
Mr. Biswas has submitted that police filed charge-sheet without proper application of mind. According to Mr. Biswas it is an admitted fact that it is the petitioner, who had sent the bags of fertilisers to Dimapur. Petitioner claims that he has the proper licence to that effect. The petitioner has filed all his documents in support of his case.
Mr. Biswas has relied upon a decision of the Supreme Court, Page No.# 3/6 rendered in Robert John D'Souza and others Vs. Steephen V.Gomes and another reported in (2015) 9 SCC 96. In this case the Supreme Court has held as under :-
"8. In view of the above facts, apparent on the record, we are of the view that the High Court and the courts below have committed grave error of law in ignoring the same. Needless to say that to constitute and offence punishable under Section 406 IPC, the essential ingredient is the "entrustment" of the property. The complaint filed by the complainant nowhere discloses that the land in question purchased in the year 1978 was entrusted to the Society for the benefit of others. It is only after entrustment is shown, it can be said that there was criminal breach of trust.
9. In Ram Narayan Popli V. CBI, this Court, per majority, has explained entrustment" in para 363 as under (SCC p. 786) "363. The term 'entrustment' is not necessarily a term of law. It may have different implications in different contexts. In its most general signification all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all."
The learned counsel has further relied upon anothe decision of the Supreme Court that was rendered in Trimbak Vs. State of M.P. reported in AIR 1954 SC 39. Para 5 of the judgment is quoted as under :-
"5. We are satisfied that this was not the correct way of approaching the decision of a case under S. 411, I.P.C. It is the duty of the prosecution in order to bring home the guilt of a person under S. 411, I.P.C. to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. There is no reliable evidence to prove either of these facts."
Mr. Biswas has submitted that the offence of criminal misappropriation is characterised by actual fraudulence appropriation of property and consequent Page No.# 4/6 misappropriation. According to the Ld.Counsel, there are no ingredients of the sections 406,411 and 420 of the Indian Penal Code in this case.
I have given my anxious consideration to the submission made by Mr. Biswas. The petitioner has admitted that he had sent the 80 bags of fertilisers to Nagaland. The petitioner is a licence holder for selling fertilisers and related agricultural chemicals. He has all the necessary documents. The only point that is to be considered here is as to whether the aforesaid 80 bags of fertilisers were government subsidised fertilisers. On this point there is no such evidence nor does the charge sheet disclose anything like that.
The seized bags are not stolen properties. Petitioner claimed that he, being a licensed dealer of fertilizers, had sent those bags of fertilisers. There is no material to suggest that the bags were Government subsidised fertilisers. The offences of criminal breach of trust or misappropriation of property are absolutely irrelevant in this case.
The power under section 482 of the Criminal Procedure Code is an inherent power of the High Court. This power is exercised in order to prevent abuse of the process of the court. In the celebrated case State Of Haryana And Ors vs Ch. Bhajan Lal And Ors reported in 1992 Supp (1) SCC 335 , the Supreme Court has held ---
"102. In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if Page No.# 5/6 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 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 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 FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In paragraph 103 of Bhajan lal,s case (supra) the Apex court has held the power of quashing a criminal proceeding should be exercised sparingly and Page No.# 6/6 with circumspection and that too in rarest of the rare cases. Apex Court further cautioned that the Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise Reverting to the case in hand, I find that there is no prima facie criminal case against the petitioner. I am satisfied that there is no possibility of future conviction of the petitioner in this case. In fact, the prosecution case against the petitioner has no legs to stand. I would have no hesitation to hold that the entire criminal case against the present petitioner came into being because of the irresponsible conduct of a police officer.
Under the aforesaid premised reasons, I agree with the petitioner and accordingly, the impugned FIR No. 119/2019 of Khatkhati P.S. and the subsequent charge-sheet No. 98/2016 dated 30.11.2016 stands quashed.
The criminal petition is disposed of.
Return the LCR.
JUDGE Comparing Assistant