Gauhati High Court
Crl.Pet./165/2020 on 7 March, 2022
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/11
GAHC010041402020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. Criminal Petition No. 165/2020
Sri Bhaskar Ojah,
S/o. Sri Padma Ojah,
Resident of Sunaridia, Kalayahati,
P.S. Barpeta, District: Barpeta,
Assam.
...... Petitioner
-Versus-
1. The State of Assam,
Represented by P. P., Assam.
2. Ariful Islam (Complainant),
S/o. Lt. Khariat Hussain,
R/o. Sutubakhjani, P.S. Dhubri,
District: Dhubri (Assam).
3. Abu Anis Aftab Momin,
S/o. Lt. Kobbat Hussain,
Vill: Jhagrerpar Part-I,
P.O. Khalipar, P.S. & Dist. Dhubri,
Pin- 783325. ........Respondents
Page No.# 2/11 Advocate for the petitioner : Mr. I. Rafique, Advocate for the respondent no.1 : Mr. B Sarma, Add. P.P., Assam Advocate for the respondent no.2 : Mr. Sheeladitya.
:: BEFORE ::
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN Date of Hearing : 17.02.2022, Date of Judgment : ___________ JUDGEMENT AND ORDER (CAV) Heard Mr. I. Rafique, learned counsel for the petitioner as well as Mr. B. Sarmah, learned Addl. Public Prosecutor, Assam representing respondent no.1. Also, heard Mr. Sheeladitya, learned counsel appearing for respondent no.2.
2. By way of this petition under Section 482 CrPC, the petitioner has prayed for quashing of the First Information Report (FIR) dated 24.07.2018 being registered as Dhubri Police Station Case No.1043/2018 under Section 7 of the Prevention of the Corruption Act, 1988, alleging unfair and biased investigation conducted by the Investigating Officer of Dhubri Police Station.
3. The petitioner is an Assam Police Service Officer and was posted as Deputy Superintendent of Police, Dhubri. On 24.07.2018, one Ariful Islam has filed a written FIR before the Officer-in-Charge, Dhubri Police Station alleging inter alia that a case being numbered as Dhubri P.S. Case No.654/2018 is registered in the Dhubri Police Station against the cousin elder brother of the informant, Abu Anis Aftab Momin who is the Principal of Hudurhat Dharmasala Higher Secondary School. It was alleged by the informant that the petitioner was the investigating officer of the aforesaid case, had arrested the cousin elder brother of the informant on 23.05.2018 without any investigation and then forwarded to the court situated at Guwahati. A bail application was preferred and the informant had requested the petitioner to send the case diary of the aforesaid case to the court, as called for. It was further alleged that the petitioner had initially refused to send the case diary, but when the Page No.# 3/11 informant requested the accused petitioner again, the petitioner demanded an amount of Rs.1 lakh from the informant as bribe and also told the informant that the case diary will be sent only when the aforementioned amount of Rs.1 lakh is given to the petitioner. The informant agreed to give the said amount to the petitioner for the bail of his cousin brother. The informant initially gave an amount of Rs.60,000/- to the petitioner in his office chamber and after few days, when the informant made a telephone call to the petitioner to give him the balance amount, the petitioner directed the informant to give the due amount to Krishna, who is the orderly of the petitioner. Accordingly, the informant went to the residence of the petitioner on 04.06.2018 and gave an amount of Rs.25,000/- in an envelope to said Krishna and asked him to give the amount to the petitioner. The informant further stated that the he had recorded the telephonic conversation between him and the petitioner in his own mobile phone and had also videographed the incident wherein the informant had paid the money to Krishna. The informant had alleged that the petitioner called the cousin brother of the informant after his release on bail and again demanded remaining money from the cousin brother of the informant and told the cousin brother after such payment that he (petitioner) will conclude the case. The aforesaid FIR was received and registered on 24.07.2018 as Dhubri P.S. Case No.1043/2018 under Section 7 of the Prevention of Corruption Act, 1988.
4. Subsequent to such registration of FIR, the petitioner was placed under suspension pending drawal of the departmental proceeding by an order dated 20.07.2018 issued by the Addl. Secretary to the Government of Assam, Home (A) Department. However, due to the intervention of the Hon'ble Gauhati High Court, the petitioner was reinstated in service.
5. Petitioner has challenged the aforesaid FIR by way of this petition contending that the FIR lodged against him is false and baseless. It is stated that Abu Anis Aftab Momin (respondent no.3) is neither cousin brother of the informant nor his relative, which was disclosed to him by said person. According to the petitioner, said FIR has been lodged only to harass and humiliate the petitioner in the society, which have a demoralizing effect in the service career of the petitioner where the victim has no grievances as stated in the FIR. Therefore, a prayer has been made to quash the FIR and the entire proceeding.
6. The informant Ariful Islam and his relative brother cousin Abu Anis Aftab Momin were made as respondent nos.2 and 3 respectively, in the present petition and, in turn, they have Page No.# 4/11 appeared before the court and submitted affidavit-in-opposition. The informant in his affidavit has submitted that the said FIR has been filed only due to the immense pressure put upon him by the then Officer-in-Charge, Dhubri P.S. (without mentioning the name of the officer). It is submitted that neither FIR was filed willingly nor the petitioner has demanded money from him or paid any money as bribe, as alleged in the FIR. Further, he submitted that the respondent no.3 in no way related to him and the whole story was concocted as per direction and instructions of the Officer-in-Charge.
6. Respondent no.3 in his affidavit submitted that the informant Ariful Islam in no way related to him and the allegation made in the FIR is not true.
7. The learned counsel for the petitioner has vehemently argued that as the informant and the other person on whose behalf money was alleged to have been demanded by the petitioner, has denied such allegation in the FIR by filing affidavit(s) and as such, the entire allegation is baseless and the proceeding is liable to be quashed and set aside. It is urged before this court that when the authenticity of allegation has been denied by the informant himself, so further proceeding will be nothing but is a abuse of process of law. Supporting the argument advanced by the petitioner's side, the learned Addl. P.P. Mr. Sarmah has also submitted that the court may consider the stand taken by the respondent nos.2 and 3, which indicate that in the long run they will not support the prosecution case and it indicate that further proceeding with the case will not serve any purpose.
8. The learned counsel for the respondent nos.2 and 3 also advanced their argument in the similar tune as that of petitioner's side that the FIR was filed only at the behest of the police officials and as the genuineness of the allegation has been denied by the author of the FIR as well as the other aggrieved person, so nothing survive to proceed with the FIR.
9. This court has gone through the entire matters on record as well as the case diary including the status report submitted by the I/O.
10. As has been discussed above, the informant has not supported his own FIR by filing affidavit before this court. Now, this court has been urged upon to quash the FIR and the entire proceeding on the basis of such disclosure by the informant by invoking the provision of Section 482 CrPC. The petitioner has alleged about the unfair and bias investigation Page No.# 5/11 conducted by the investigating officer of the aforesaid Dhubri P.S., claiming himself to be an honest officer, so this court is to look into the investigation that has been carried out whether it was unfair and with biasness?
11. I have carefully examined the case diary including the statement of witnesses and found that it has been carried out to a large extent subsequent to the filing of the FIR. Coming to the allegation in the FIR, it is found that the petitioner demanded Rs.1 lakh as a bribe for sending the case diary of Dhubri P.S .Case No.654/2018 and alleging the same, he initially paid Rs.60,000/- at his chamber and on the pressure made by him for the balance amount, the informant paid the said amount in his Government quarter which was delivered through the orderly peon (Krishna) in an envelope and the said aspect of conversation and delivery of money etc. was recorded in his (informant's) mobile phone.
12. Now, as per the case diary, the following aspect has been found to have examined by the I/O, which is highlighted below:
Ø The statement of the informant was recorded as on 07.08.2018 wherein he has given detailed statement all that has been disclosed in the FIR. His mobile phone was seized and sent to CFSL for examination.
Ø The CDR analysis supported about the conversation on 04.06.2018 of the petitioner with that of informant as well as the orderly peon Krishna Kamal.
Ø The said orderly Krishna Kamal who worked in the official residence of the petitioner, another working as a cook Kanailal Sarma in their statement under Section 161 and 164 CrPC have supported about such payment made by the informant. It is stated that informant came to the official residence of the petitioner and delivered an envelope containing money with a direction to give the same to the petitioner and accordingly they gave the packet to the petitioner.
Ø The informant has admitted about the seizure of the mobile phone and hence he cannot deny the CDR (which goes against the version of the informant, now raised).
Page No.# 6/11 Ø In his statement Abu Anis Aftab Momin has admitted all about the fact that has been alleged in the FIR and his statement was recorded on 04.09.2018.
Ø The accused petitioner in his statement has admitted about the investigation he carried out in respect of Dhubri P.s .Case No.654/2018 (as mentioned in the FIR) as against the accused Abu Anis Aftab Momin although he has denied the allegation.
Ø As per the I/O, there are sufficient evidence against the accused person and with due permission of the court, charges under Section 13(1)(b) and the read with Section 13(2) of Prevention of Corruption Act and Section 98(a)/99(6) of Assam Police Act, 2007 has been added.
Ø So far as regard the revocation of the suspension and reinstatement of the petitioner, it is found that this court in WP(C) 7564/2019 has set aside the suspension order dated 20.07.2018 holding that same is not sustainable in view of the disciplinary proceeding that has been initiated much after 90 days from the date of suspension, placing reliance upon the decision of Hon'ble Apex Court in Ajay Kr. Choudhury v. Union of India, (2015) 7 SCC 291 . Obviously, the petitioner was not reinstated on the basis of the merit of the case but for the delay in holding the disciplinary proceeding.
Ø In his status report, the I/O has submitted that the investigation of the case has been completed after examining the bank statement of the accused petitioner, opinion of expert from CFSL on the basis of voice sample collected from the informant and the accused petitioner and has also collected the certificate under Section 65B of the Indian Evidence Act. The case is pending for receipt of prosecution sanction and soon after receipt of sanction, Final Form will be submitted.
13. The aforesaid findings in the investigation has sufficiently made out a case against the accused petitioner and there appears no any unfairness in the investigation to suggest biasness as alleged by the petitioner. Present petition has been filed after approx 2 years of the filing of the FIR, while investigation progressed a lot and at such juncture, the plea taken Page No.# 7/11 by the informant and other cannot be entertained in view of their statement given before the I/O at the initial stage of investigation. The cryptic affidavit by both private respondent nos.2 and 3 inspire no confidence and liable to be discarded, which might have been filed under undue influence. Facts to the noted that the same informant who lodged the serious allegation has now cryptically withdrawn his allegation simply with an assertion that the FIR was filed under the pressure of a police officer but he has not named the officer. In view of the apparent findings during the investigation, where even the employee under the petitioner has supported the facts narrated in the FIR as well as other materials also lend support to the contention raised in the FIR and when the investigation has almost completed prior to filing of this petition, such a prayer for quashing appears to be not bona fide.
14. The offence under the present case against public servant and the charges are framed under the Prevention of Corruption Act. The law so far as the quashing of FIR as well as the criminal proceeding is well settled.
15. Power of High Court under Section 482 CrPC, to quash the proceeding is distinct and different from power of compounding offence under Section 320 CrPC. Before exercise of inherent quashment power under Section 482, the High Court must have due regard to the nature and gravity of the crime and its social impact. Such inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving any prima facie decision in a case where evidence has been collected to a large extent. Exercise of such power is not a rule but an exception and it cannot be exercised at the whims and caprice, but it is to be exercised with due care and caution.
16. The law on the exercise of powers under Section 482 CrPC, has been succinctly laid down that such statutory power has to be exercised sparingly in the circumspection and in the rarest of rare cases to prevent the abuse of process of law or to prevent miscarriage of justice.
17. In landmark judgment in State of Haryana and Ors. v. Bhajan Lal and Ors, 1992 Supp (1) SCC 335, the Hon'ble Supreme Court has held that High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceeding without allowing the investigating agency to complete its task. Certain guidelines have been issued Page No.# 8/11 when the FIR/complaint can be quashed.
18. In Gian Singh v. State of Punjab and Anr., (2012) 10 SCC 303 , three Judges Bench of the Hon'ble Supreme Court held that inherent power under Section 482 CrPC, although is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guidelines engrafted in such power viz namely- (i) to secure ends of justice or (ii) to prevent abuse of process of any court. In what cases power to quash the criminal proceeding or complaint or FIR, may be exercised where the offender and the victim have settled the dispute, would depend on the facts and circumstances of his case and no category can be prescribed. The High Court must have due regard to the gravity of the offence and the heinous and serious offences of mental depravity offences like, murder, rape, dacoity and offences against public servant under Prevention of Corruption Act, cannot be fittingly quashed even though the victim and victim's family and the offender have settled the dispute. It has also been held that the High Court must consider whether it would be unfair or contrary to the interest of justice to continue such criminal proceeding or continuation of criminal proceeding would tantamount to abuse of process of law. It is stated that the formation of opinion by the High Court for quashing criminal offence or proceeding is guided by the material on record. Thus, the Hon'ble Supreme Court in Gian Singh (supra) was categorical in respect of serious offences or other offences of mental depravity, under special statute like Prevention of Corruption Act or the other offences committed by the public servant while working in that capacity.
19. Following the same principle in Narinder Singh and Ors. v. State of Punjab and Anr., (2014) 6 SCC 466, it has been held that inherent power under Section 482 should be exercised very sparingly and should not be exercised as against the express bar of law engrafted in any other provision of CrPC. It has also been held that timing of settlement also plays a crucial role. If the settlement is arrived immediately after the alleged commission of the offence and the matter is still under investigation, the High Court may somewhat liberal in accepting the settlement.
20. In Parbatbhai Aahir and Ors. v. State of Gujarat, (2017) 9 SCC 641 , has summarized all the above principles when the court can invoke inherent power under Section 482 CrPC. It is reiterated that the offences, which is not private or civil in nature but have a serious impact in Page No.# 9/11 the society, cannot be allowed to settle in the public interest, seeking quashment of a proceeding. It has been held that criminal cases having overwhelmingly and predominantly civil flavor stand on a different footing for the purpose of quashing, particularly the offences, commercial, financial, mercantile, civil, partnership or the offences out of matrimony relating to dowry or family disputes where the wrong are basically private or personal in nature and the parties have resorted their entire dispute, the High Court can/may quash the criminal proceeding. But the heinous offences which are not private in nature, having serious impact in the society, cannot be quashed even the victim and the offender have settled the dispute. Similarly, any compromise between the victim and the offender in relation to the special statute like- Prevention of Corruption Act or the offences committed by public servant while working in that capacity etc. cannot provide any basis for quashing criminal proceeding involving such offence.
21. In a recent decision in M/s. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Ors. in Criminal Appeal No.330/2021 dated 13.04.2021, the Hon'ble Supreme Court has issued following guidelines for invoking Section 482 CrPC.
"23. XXXXX
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 offence;
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;
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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 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 Page No.# 11/11 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;
xvi) XXXXX
xvii) XXXXX
xviii) XXXXX
22. In the present case, charge is under Prevention of Corruption Act and the law does not provide for settlement of such cases even though parties intended to settle the matter, as it will have serious consequences in the society that corruption charges can also be allowed to be settled between the parties of their own choice. The proposition of law has been laid down by the Hon'ble Supreme Court in catena of cases.
23. The present case, as alleged in the FIR, it would demonstrate that it is not a private dispute but allegation of corruption by public servant, which is serious in nature and having a societal interest. In the circumstances that has been discussed above, and bearing in mind the principles of law that has been laid down by the Hon'ble Supreme Court, this Court is not inclined to interfere with the FIR and the criminal proceeding, rather it should end, in Final Form.
30. The petition stands dismissed accordingly.
31. Return the Case Diary forthwith.
JUDGE Comparing Assistant