Gauhati High Court
Pranati Mahanta vs The State Of Assam And Anr on 21 April, 2022
Author: Robin Phukan
Bench: Robin Phukan
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GAHC010154112021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./528/2021
PRANATI MAHANTA
W/O SRI ARUP KUMAR MAHANTA
R/O H. NO. 9, CHANDAN KALITA PATH,
MANIK NAGAR, JAPORIGOG,
GUWAHATI, KAMRUP (METRO), ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:ARUP KUMAR MAHANTA
S/O LATE PRAFULLA MAHANTA
R/O H. NO. 9
CHANDAN KALITA PATH
MANIK NAGAR
JAPORIGOG
GUWAHATI
KAMRUP (METRO)
ASSA
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BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
Advocate for the Petitioner : Ms. P. Bhattacharya, Adv.
Advocate for the respondent: Mr. S. Kalita, Adv. For R-2.
Ms. B. Bhuyan, Addl. PP/R-1.
Date of hearing :15.02.2022.
&
Date of Verdict (CAV) :21.04.2022.
VERDICT (CAV)
This petition, under Section 482 of the Cr.P.C. is preferred by Smti. Pranati Mahanta, wife of Shri Arup Kumar Mahanta, for quashing the FIR, dated 16.03.2021, of Dispur P.S. Case No.1025/2021, under Section 457/380 of the IPC.
2. It is to be mentioned here that the aforesaid FIR has been lodged by Shri Arup Kumar Mahanta, husband of the petitioner on 16.03.2021, with the Officer-in-Charge Dispur Police Station, Guwahati.
3. The factual background, leading to filing of the present petition is adumbrated herein below:-
"The petitioner is the wife of the complainant - Shri Arup Kumar Mahanta, who lived in the House No. 9, Chandan Kalita Path, Manik Nagar, Japorigog. The petitioner and the complainant got married as per social Page No.# 3/10 rites and rituals of the society and they are blessed with 2 (two) children and both of them are major. The complainant, on 16.03.2021, lodged one FIR against the petitioner with the Dispur Police Station to the effect that while he was absent from his residence with effect from 09.03.2021 till 14.03.2021, the petitioner and other family members entered into his room by breaking open the lock and stolen away a sum of Rs.16 lakhs of his brother, who is a business man, and also stolen a sum of Rs.5 lakhs of his own as well as LIC documents/passbook/cheque books etc., by breaking open the lock of the goodrej and also they have committed theft of documents, duplicate keys of his car by using a ladder from their room to his room. Upon the said FIR, the O.C. Dispur, Police Station registered a case, being Dispur P.S. Case No. 1025/2021, under Section 457/380 of the IPC and started investigation. During investigation, the I.O. has obtain one search warrant from the learned Special Magistrate and conducted search in the house of the petitioner and recovered one key of Honda Amaze Car, bearing registration No. AS-01DX-4999, one policy copy of Royal Sundaram General Insurance, one R/C book of the said car registered in the name of Arup Kr. Mahanta, one service book, one segment advance due loan of SBI Car loan in the name of Arup Kr. Mahanta in present of witnesses.
4. Being highly aggrieved by the aforementioned action of police, the petitioner approach this Court by filing the present petition, on the ground, that she is no way involved in any offence mentioned in the FIR and that the concerned Officer-in-Charge, without any prima facie materials, registered the Dispur P.S. Case No. 1025/2021 under Section 457/380 of the IPC and that the Page No.# 4/10 complainant was serving as Deputy Superintendent of Police in C.I.D., Assam and retired on 28.02.2021 and since the year, 2018, the complainant had developed extra marital affairs with one Hiranmoyee Das and since then he started subjecting the petitioner to physical and mental harassment while the petitioner has objected in maintaining such affairs, he often used to threatened her and her children using vulgar language and her daughter, on 14.03.2021, lodged complaint against the complainant which was registered as Dispur P.S. Case No.1011/2021, under Section 294/506 IPC and that due to inhuman mental and physical torture upon the petitioner and her children, the petitioner on 16.03.2021 at about 2.00 PM lodged the FIR before the All Women's Police Station, Pan Bazar, Guwahati against the complainant, upon which All Women's P.S. Case No. 68/2021 under Section 498 (A)/294/506 IPC has been registered and that the allegation made in the FIR, dated 16.03.2021, is false and concocted and baseless and afterthought facts and that in spite of being searched in her house, the I.O. could not recover any cash amount as mentioned in the FIR and that the present complaint, lodged by the complainant, is only as a counter blast and to wreak vengeance against the petitioner on the basis of false, fabricated and concocted facts with mala fide intention and that no prima facie case is made out against the petitioner even after perusal of the FIR and therefore, it is contended to allow the petition by quashing the aforesaid FIR as continuance of investigation against the petitioner is an abuse of the process of the Court and the allegations are tainted with mala fide intention and absurdity and improbabilities.
5. Heard Ms. P. Bhattacharya, learned counsel for the petitioner and also heard Mr. S. Kalita, learned counsel for respondent No. 2 as well as Ms. B. Page No.# 5/10 Bhuyan, learned Addl. PP for the State of Assam.
6. Ms. P. Bhattacharya, the learned counsel for the petitioner submits that the FIR, lodged by the complainant, is the counter blast of the FIR lodged by the petitioner on 16.03.2021, against the complainant, with the All Women's Police Station, Pan Bazar, Guwahati, and that the allegation made in the FIR are absurd and improbable and tainted with manifest illegalities and the complainant has lodged the complaint to wreak vengeance upon the petitioner and that they resides in the same house as husband and wife and as such, the question of committing any theft of the documents of the car and the key and the insurance policy of the car does not arise and she has every right to use the same being the wife of the complainant. Therefore, it is contended to allow the petition.
7. On the other hand, Mr. S. Kalita, learned counsel for respondent No. 2 submits that the allegations made in the FIR disclose commission of a cognizable offence and that this Court, at this stage, cannot go into the veracity of the allegation made in the same and that issuance of search warrant and recovery of key of the car along with the documents from the house of the petitioner has substantiated the allegation made in the FIR and there is no merit in this petition and therefore, contended to dismiss the same.
8. On the other hand, Ms. B. Bhuyan, learned Addl. P.P. submits that a recovery of key and the documents of the car substantiated the allegation made in the FIR, which discloses commission of a cognizable offence and as such, this Court is not entitled to quash the proceeding invoking the inherent jurisdiction under Section 482 of the Cr.P.C.
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9. Having heard the submission of the learned Advocates of both the sides, I have carefully gone through the petition and the documents placed on record and also the scanned copy of the case diary received from the Investigating Officer (I.O.).
10. From a bare perusal of the FIR, it cannot be said that no cognizable offence is made out against the petitioner. Though, it is alleged that the impugned FIR is the counter blast of the case lodged by the petitioner against the complainant on 16.03.2021 before the All Women's Police Station, Pan Bazar, Guwahati, yet, issuance of search warrant by the learned Special Judicial Magistrate, Kamrup, Guwahati and recovery of the key of the vehicle and the documents from the house of the petitioner lends some assurance about the veracity of the allegation made in the FIR and the learned counsel for the respondents have rightly pointed this out.
11. Though it is submitted by the learned counsel for the petitioner that being the wife of the complainant, the petitioner has every right to use the car of the complainant as the same is the joint property, yet, it is the case of the petitioner that the complainant resides and dine separately in the same building but in a different floor, which is apparent from the Annexure -6 of her petition. It also appears from the FIR-Annexure-I that the room of the complainant was under lock and key and he was absent at that time and his Godrej was broke open. Therefore, taking away of the documents and key of the car from the room of the complainant, that too while he was absent, left this court unimpressed by the submission of the learned counsel for the petitioner that no offence is made out. It appears that factual foundation of the offence under Page No.# 7/10 Section 457/380 of the Indian Penal Code, which are cognizable offence, is clearly laid in the FIR.
12. While dealing with quashing of the FIR in a criminal proceeding, by invoking the inherent jurisdiction under Section 482 Cr.P.C., the Hon'ble Supreme Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra &Ors; reported in AIR 2021 SC 1918 held that:-
"i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
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;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
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ix) The functions of the judiciary and the police are complementary, not overlapping;
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;
xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
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;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a Page No.# 9/10 cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section under Section 482 of the Code of Criminal Procedure, 1973 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
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13. Having carefully examined the factual matrix of the case in hand as well as the submission of the learned Advocates of both the sides, in the light of the aforementioned guidelines, this Court is of the considered view that no case is made out to truncate the police investigation by invoking the inherent power under Section 482 Cr.P.C. It also appears that the petitioner has disputed some of the allegations made in the FIR. But, this Court, while dealing with a petition under Section 482 Cr.P.C. cannot embark upon a roving enquiry as to the reliability or genuineness or otherwise of the allegations made in the impugned FIR.
14. In view of the above discussion and findings, I find no merit in this petition and accordingly, the same stands dismissed. The parties have to bear their own cost(s).
JUDGE Comparing Assistant