Gauhati High Court
Ranjit Saikia vs The State Of Assam And Anr on 1 December, 2021
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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GAHC010192312013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./227/2013
RANJIT SAIKIA
S/O LT. KESHAB SAIKIA R/O NAZIRANIBARI WARD NO. 5, JORHAT, P.S.
JORHAT, DIST. JORHAT, ASSAM,
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PUBLIC PROSECUTOR, STATE OF ASSAM,
2:SRI DIGANTA SAIKIA
S/O LT. AMBESWAR SAIKIA R/O ABHAYAPURI GAON P.O. DEORAJA
DIST. SIVASAGAR
ASSAM
Advocate for the Petitioner : MR.P K R CHOUDHURY
Advocate for the Respondent : PP, ASSAM
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Petition No. 227/2013
Sri Ranjit Saikia,
Son of Late Keshab Saikia,
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R/o- Naziranibari, Ward No. 5,
Jorhat, PS- Jorhat,
District- Jorhat, Assam.
...... PETITIONER
-Versus-
1. The State of Assam,
Represented by P P, Assam.
2. Sri Diganta Saikia,
Son of Late Ambeswar Saikia,
R/o Abhayapuri Gaon,
P.O.- Deoraja, District - Sibsagar, Assam.
........RESPONDENTS
Advocate for the petitioner : Mr P K Roy Choudhury,
Mr P P Baruah.
Advocates for the respondents : Mr B Sarma, APP, Assam
Mr R P Sarmah, Sr. Adv.
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of Hearing : 01.12.2021
Date of Judgment : 01.12.2021
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JUDGEMENT AND ORDER (ORAL)
The petitioner has sought for quashing of the FIR dated 28.03.2013, registered as Jorhat PS Case No. 358/2013, under Sections 406/420 of the Indian Penal Code, 1860.
2. Heard Mr P K Roy Choudhury, learned counsel for the petitioner and Mr B Sarma, learned Additional Public Prosecutor for the State of Assam. Also heard Mr R P Sarmah, learned Counsel for the private respondent.
3. The respondent No. 2 lodged an FIR against the petitioner on 28.03.2013, before the OC, Jorhat, alleging inter alia that they have executed a work for construction of drain at KKB Road, under Jorhat Municipal Road, as per order of the Chairman of the Board, as a Sub- Contractor, vide work order No. 202 for Drainage No. 76, 77, 78, 85 and 86. Though the main contractor, Mr Ranjit Saikia (present petitioner) has a due amounting to Rs. 44 lacs, to the informant, but the said amount is not paid to them although he has already withdrawn the amount from the municipal Board. On the other hand, due to financial hardship, two labourers have already died. Family members of the labourers have also lodged an FIR before Halowating Police Station. Name of some witnesses have been cited in the FIR and same was registered as aforesaid.
4. According to petitioner, he is a Class-I Contractor, doing various works under the Public Works Department as well as the Jorhat Municipal Board. So far as regards the impugned construction work, it is submitted that he duly participated in the tender process for the construction of the storm water drains and culverts at Jorhat under UIDSSMT, under Group-6 and he has signed the contract for implementation of the work and formal work order was issued to him on 25.04.2011 at a price of Rs. 117.61 lacs. After receiving of the formal order, he started the construction and collected raw materials from time to time from different persons, like Robin Buragohain and Manab Dutta and several works have already been completed.
5. So far as regards the FIR, it is submitted that there is no authenticity in the FIR, which is false, fabricated and imaginary. The petitioner himself executed the works, along with his employees, as per work order and he has no relation with the informant/respondent No. 2. It is stated that value of construction of drainage at KKB Road, is not Rs. 44 lacs, as alleged by Page No.# 4/9 the informant, but it is Rs. 103.24 lacs and the FIR has been filed only for illegal gains. It is also stated that respondent No. 2 has strong business relation with Robin Buragohain and due to certain dispute between them, now the present FIR has been filed only to pressurize the petitioner to pay the disputed amount, which he claimed from Robin Buragohain and, whereas, the petitioner never engaged the informant as Sub-Contractor. Contending that no any offence under Section 406 and or Section 420 IPC is made out against him from the FIR itself, the same is liable to be quashed and set aside.
6. I have considered the submissions advanced by the learned counsel for the petitioner as well as the learned counsel for the respondent No. 2 and also the learned Additional Public Prosecutor.
7. According to Mr Choudhury, learned counsel for the petitioner, such a vague allegation in the FIR, without there being any evidence to show that the informant was engaged as a Sub- Contractor, claiming huge amount of money from the petitioner, is itself absurd and unreasonable and, hence, not maintainable. It contends that such a claim for huge amount, without there being any document in support of the claim and, whereas, petitioner was allotted the work order, registration of the FIR, is itself bad in law, more so, the allegation in the FIR does not constitute an offence of cheating or misappropriation.
8. Attention has been drawn to the work order in question (Annexure-A), given to the petitioner for construction of the work in question, vide No. JMB202 dated 25.04.2011, to contend that the entire work was allotted to the petitioner, so the claim of the informant working as a Sub-Contractor, under the petitioner is nothing but a false pretext, in order to exploit money. Such an FIR without any substance is nothing but an abuse of the process of law, so liable to be quashed. The decision of State of Haryana & Ors. -v- Bhajan Lal & Ors., 1992 Supp (1) SCC 335 , has been referred to submit that where the allegations made in the FIR itself, prima facie does not constitute any offence and a case has been filed only for personal vendetta, should not be allowed to prevail.
9. Refuting the submission of petitioner's side, the learned counsel for the Page No.# 5/9 respondent No. 2, Mr R P Sarmah, has vehemently argued that the allegation in the FIR of course disclose a prima facie case against the petitioner and only on disputed facts raised by the petitioner, which is yet to be proved, the FIR cannot be quashed, at the behest of the petitioner. It is contended that everything will come up in the course of investigation only as about the execution of the document and any other oral agreement, that may have been entered into between the parties and unless the investigation is conducted, the entirety of the matter cannot be established in a petition under Section 482 CrPC. Further, it has been submitted that the petitioner should not be afraid of a lawful investigation, that may be carried out on the basis of such FIR.
10. Mr R P Sarmah, learned counsel for respondent No. 2 has relied upon the decision of Neeharika Infrastructure Pvt. Ltd. -Vs- State of Maharashtra; 2021 SCC Online SC 315 and has submitted that the Hon'ble Supreme Court has issued the guidelines about the power and jurisdiction of this Court under Section 482 CrPC. It is stated that power under Section 482 CrPC should not be exercised in a mechanical manner.
11. The recent decision of Hon'ble Supreme Court in Ram Gopal & Anr. -Vs- State of MP; Criminal Appeal No. 1489/2012, dated 29.09.2021, has also been relied, wherein similar view is endorsed.
12. Now, adverting to the present case, it is found that the petitioner, herein, has challenged the authenticity of the allegations of the informant and has submitted certain disputed facts that the informant has some due from one another person, Robin Buragohain, who is the supplier to the petitioner's construction work, and that the informant was not a Sub-Contractor under him. Obviously, the petitioner has raised certain disputed facts, which cannot be decided in a petition under Section 482 CrPC. The authenticity of the allegations Page No.# 6/9 is again a subject matter of investigation and whether the informant will be able to establish his case is again an outcome of investigation. This Court has the limited jurisdiction to enter into such disputed facts, which is in the sphere of the investigation.
13. On scrutiny of the FIR, it reveals that the informant has also referred the same work order No. 202, which was issued to the informant and more importantly, the informant has also cited the names of four persons, as witnesses to the FIR and in view of the same, the case of the informant is to be examined in the light of the allegations in the FIR, along with the witnesses referred above and other documents, if any. Falsity of allegation cannot be assessed at this stage
14. Facts to be noted here that the impugned FIR was registered on 28.03.2013 and challenging the same, the petitioner approached to the Court on 04.04.2013 and on the day of motion on 05.04.2013, execution of the FIR was stayed and the LCR reveals that due to such stay order, no investigation was carried out, meaning thereby, the informant and no other witness was examined. As has been noted above, the disputed facts between the parties can only be ascertained only in due course of investigation. The informant is deprived of his opportunity to furnish his oral and documentary evidence (if any) and the investigating authority also cannot adhere to investigation into a cognizable offence.
15. It would be apposite to reproduce the guidelines given in Neeharika (supra) as below:-
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;
Page No.# 7/9 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;
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 Page No.# 8/9 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 cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
16. In view of the above proposition, the Court should not thwart any investigation into a cognizable offence and this Court should not go to the merit of the allegations and Police must be permitted the completion of the investigation and it would be inappropriate to pronounce the conclusion, holding that the FIR does not deserve to be investigated.
17. The inherent power under Section 482 CrPC envisages three circumstances under which the inherent jurisdiction may be exercised, namely,
i) to give effect to an order under the Court, ii) to prevent abuse of process of Court and iii) to otherwise secure the ends of justice. Such inherent power though wide, has to be exercised sparingly and in exceptional circumstances, Page No.# 9/9 and such an inherent power cannot be invoked in a routine manner.
18. In view of the above, findings and observation and in the light of the propositions of law, as discussed above, this Court is of the opinion that it is not a fit case to exercise the inherent power under Section 482 CrPC.
19. Resultantly, the petition stands dismissed. Stay order hereby vacated.
20. Return the LCR, with a direction to IO to carry out the investigation and conclude the same expeditiously, and submit F.F. as per law.
JUDGE Comparing Assistant