Gauhati High Court
Page No.# 1/ vs The State Of Assam And Anr on 16 August, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010143812022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./786/2022
ANITA DEY AND 2 ORS
D/O LATE HARU CHANDRA DEY
R/O C/O LATE HARU CHANDRA DEY
PRESENTLY ALLOTTED/OCCUPIED BY NARAYAN CHANDRA DEY
(KHALASI OF N.F. RAILWAY), MALIGAON RAILWAY QUARTER NO. 96-B,
NAMBARI HILL TOP ROAD, P.O. MALIGAON,
P.S. JALUKBARI, GUWAHATI- 781011
DIST. KAMRUP (METRO ), ASSAM
2: SRI RAJA DEY
S/O LATE HARU CHANDRA DEY
R/O C/O LATE HARU CHANDRA DEY
PRESENTLY ALLOTTED/OCCUPIED BY NARAYAN CHANDRA DEY
(KHALASI OF N.F. RAILWAY)
MALIGAON RAILWAY QUARTER NO. 96-B
NAMBARI HILL TOP ROAD
P.O. MALIGAON
P.S. JALUKBARI
GUWAHATI- 781011
DIST. KAMRUP (METRO )
ASSAM
3: SRI RAGHAV DEY
S/O LATE HARU CHANDRA DEY
R/O C/O LATE HARU CHANDRA DEY
PRESENTLY ALLOTTED/OCCUPIED BY NARAYAN CHANDRA DEY
(KHALASI OF N.F. RAILWAY)
MALIGAON RAILWAY QUARTER NO. 96-B
NAMBARI HILL TOP ROAD
P.O. MALIGAON
P.S. JALUKBARI
GUWAHATI- 781011
Page No.# 2/11
DIST. KAMRUP (METRO )
ASSA
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SRI SANJIB BHATTA
S/O LATE HARENDRA BHATTA
C/O M/S D.S. REALTORS
HAVING IS REGISTERED OFFICE AND PRINCIPAL AREA OF BUSINESS AT
A.T. ROAD
ROAD
PANDAV NAGAR
P.S. JALUKBARI
GUWAHATI- 781012
DIST. KAMRUP (METRO(
ASSA
Advocate for the Petitioner : MR. S C BISWAS
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 16.08.2022 Heard Mr. S.C. Biswas, learned counsel for the petitioners. Also heard Mr. Bhaskar Sarma, learned APP for the State.
2. By this criminal petition filed under section 482 of the Criminal Procedure Code (CrPC for short), the petitioners are seeking quashing of the proceeding of C.R. Case No. 600C/2020 pending for trial before the Court of learned Judicial Magistrate First Class, Kamrup (Metropolitan), Guwahati.
Page No.# 3/11
3. The case of the petitioners, in brief, is that they are the owners of plot of land and they had entered into an agreement dated 19.02.2015 with M/s D.S. Realtors, which is a partnership firm of the respondent no.2 as one of the partners. The said agreement was for development of land and construction of a multi-storied apartment by the said developer/builder. It is also projected that in course of time, the partners of the M/s D.S. Realtors had manufactured a forged/fraudulent sale deed to project that the land of the petitioners was sold to them and on the strength of purported manufactured/forged/fraudulent sale deed, mutation was also done in the name of the beneficiaries of the manufactured sale deed. This has resulted in filing of Civil Suit and other criminal proceedings by the petitioners. Thereafter, certain posters were allegedly affixed in various parts of the boundary of the said disputed land and other parts of the locality, warning the public to deal with the said land or for purchasing any flat constructed by the builder firm, i.e. M/s D.S. Realtors. Aggrieved by the said posters, the respondent no.2 had filed a complaint case, which was registered as C.R. Case No. 600 C/2020, alleging that the petitioners had defamed the respondent no.2. It may be mentioned that several other aspects has been raised by the petitioners in the present petition, which has not referred to in this order as the same does not relate to the facts concerning the defamation case registered as C.R. Case No. 600C/2020.
4. The learned counsel for the petitioners has submitted that there is no material on record in the complaint petition to show that the said posters were put up by the petitioners and although the posters contain the name of the printer, the printer was not proceeded with in the complaint petition. It is submitted that in order to wriggle out from the suit and other complaints/FIR Page No.# 4/11 filed by the petitioners for fraudulently manufacturing a sale deed and consequent fraudulent mutation in their names, the respondent no.2 has filed a false case against the petitioners and that on a reading of the complaint petition, no case of defamation is made out against the petitioners. Hence, it is submitted that the said proceeding is to break vengeance against the petitioners and the said defamation case has been filed as a leverage for compelling the petitioners to withdraw various suits and criminal proceedings, which has been filed by them against the respondent no.2 and his partnership firm and the other partner of the said firm. Hence, by placing reliance in the ratio laid down in the case of State of Haryana & Ors. Vs. Bhajanlal, 1992 Supp (1) SCC 335, it is submitted that the complaint case is liable to be quashed.
5. Considered the submissions made by the learned counsel for the petitioners, and perused the materials on record and also heard the learned APP appearing for the State.
6. On perusal of the complaint case, being C.R. Case No. 600C/2020, it cannot be outrightly said that if the contents of the said complaint petition is taken in its face value and accepted in its entirety, do not, prima facie, constitute any offence or make out a case against the petitioners, or it does not disclose any cognizable offence. At this stage, the Court does not make any comment on the nature of evidence available to support the contention raised in the complaint petition. Nonetheless, it cannot be said that the case made out in the complaint petition is so absurd and inherently improbable or that on the basis of the same no prudent person can arrive at a conclusion that there is no sufficient ground to proceed against the petitioners. It appears to be Page No.# 5/11 a general rule that while considering a quashing petition under section 482 CrPC, the materials furnished by the defence cannot be looked into. However, there would be no bar for the trial Court to consider the same at the time of trial. However, the said proposition is not absolute. If in a given case, the defence material is of such sterling and impeccable quality, which is capable of completely negating the allegation of the FIR/complaint, a Court is not totally debarred from taking into account such defence materials in the interest of securing the ends of justice. If one needs an authority on the point, the case of Rajiv Thapar & Ors. v. Madan Lal Kapoor, (2013) 3 SCC 330 , the Supreme Court of India had observed as follows:-
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/ complainant's case without allowing the prosecution/ complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC, the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC, to quash Page No.# 6/11 such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under section 482 CrPC:
30.1 Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? 30.2 Step two: whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3 Step three: whether the material relied upon by the accused, has not been refuted by the prosecution/ complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? 30.4 Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
7. In the present case in hand, even for the time being, it is assumed that there is no merit in the contents of the complaint petition and that the same was a counter-blast to the suits and criminal proceeding filed by the petitioners against the respondent no.2 and others, it is for the learned trial Court to examine the said aspect at the stage of hearing the parties on the plea of discharge of the accused as envisaged under section 245 Cr.P.C. Therefore, in the opinion of the Court, such an opportunity can be availed by the petitioners at an appropriate stage.
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8. At the stage of explanation of charges as envisaged under section 245 CrPC, the concerned trial Court can conveniently examine if any legal evidence exists or not. There may be two circumstances, one where "there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made", and secondly "a case where there is legal evidence which, on appreciation, may or may not support the accusations". It may also happen that at the stage of explanation of charges, the trial Court may not find any material to proceed with the trial. However, to arrive at such conclusion, the learned trial Court would have to examine the legal evidence available in the case records and then to satisfy itself as to whether such evidence supports the accusations against the petitioners.
9. It is too well settled that the High Court in exercise of inherent power to quash the FIR and consequential proceeding, has to exercise the said power with circumspection. In this regard, the Court is reminded of the case of R.P. Kapur v. State of Punjab, AIR 1960 SC 866 , where the Supreme Court of India had summarised some categories of cases where inherent power can and should be exercised to quash the proceedings, they are as under:
"(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
10. We may also refer to the decision of the Supreme Court of India in the case of State of Orissa v. Saroj Kumar Sahoo, (2005) 13 SCC 540 . Paragraphs 10-12 thereof is quoted below:-
Page No.# 8/11 "10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.
The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal, (1992) Supp (1) SCC 335. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows:
"102. (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 uncontroverted 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, 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 Page No.# 9/11 the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, 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. As noted above, the powers possessed by the High Court under Section 482 CrPC are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 and Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1.] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar, (1990) Supp SCC 686, State of Bihar v. P.P. Sharma, (1992) Supp (1) SCC 222, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194, State of Kerala v. O.C. Kuttan, (1999) 2 SCC 651, State of U.P v. O.P Sharma, (1996) 7 SCC 705, Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397, Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728 and Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259.]
12. The above position was again reiterated in State of Karnataka v. M. Page No.# 10/11 Devendrappa, (2002) 3 SCC 89 and State of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691."
11. Thus, in light of the discussions above, the Court is not inclined to exercise its inherent power under section 482 CrPC to examine the proceeding of C.R. Case No. 600 C/2020 and to give an opinion which touches upon the factual matrix, which ought to be left to the wisdom of the learned trial Court. In this regard, the Court is of the considered opinion that as the petitioners would get an opportunity to make their submission at the time of consideration of charges as envisaged under section 245 CrPC, which would meet the ends of justice.
12. In view of above, the Court is also inclined to observe that the learned trial Court has not committed any jurisdictional error. With the above observation, this criminal petition for quashing of the complaint case, i.e. C.R. Case No. 600C/2020 under sections 120(B)/449/500/ 506/507/511/34 IPC is dismissed at the motion stage without issuance of notice on the respondents.
13. None of the observations made herein shall be treated as final opinion of the Court and therefore, none of the parties would suffer any prejudice at any stage of trial.
14. The Registry shall send a copy of this order to the Court of Judicial Magistrate First Class, Kamrup (Metropolitan), Guwahati to be retained on record.
15. As indicated above, it would be open to the petitioners to invoke Page No.# 11/11 the provisions of section 245 Cr.P.C. at an appropriate stage and pray for discharge. If such an application is filed, the learned trial Court shall consider the same on its own merit without influenced by any observation made in this order.
JUDGE Comparing Assistant