Tripura High Court
Shri Subal Bhowmik vs The State Of Tripura on 25 March, 2022
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HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. Petn. No. 15 of 2022
1. Shri Subal Bhowmik, son of late Bidhu Bhusan Bhowmik, aged
about 60 years, residing at Madhya Banamalipur, P.S. East Agartala,
Agartala, District: West Tripura.
.....Petitioner
-V E R S U S-
1. The State of Tripura.
2. Inspector Manoranjan Debnath, Officer-in-charge of Khowai police
station, P.O. Sub-Division & District: Khowai, Tripura.
..... Respondents.
B_E_F_O_R_E
HON‟BLE MR. JUSTICE T. AMARNATH GOUD
For Petitioner(s) : Mr. S. Lodh, Advocate.
Mr. K. Roy, Advocate.
For Respondent(s) : Mr. S. S. Dey, AG
Mr. S. Debnath, Addl. P.P.
Ms. A. Chakraborty, Advocate.
Date of hearing : 17.03.2022
Date of delivery of
Judgment & order : 25.03.2022
Whether fit for reporting : YES
JUDGMENT & ORDER
Heard Mr. S. Lodh, learned counsel appearing for the
petitioner. Also heard Mr. S. S. Dey, learned Advocate General assisted
by Ms. A. Chakraborty, learned counsel and Mr. S. Debnath, learned
Addl. Public Prosecutor appearing for the respondents.
[2] This Criminal Petition under Section 482 of the Code of
Criminal Procedure, 1973 (for short 'Cr.P.C.'), is filed for invoking the
inherent powers of this Court to prevent the abuse of the due process of
law, and for quashing/setting aside the impugned complaint dated
09.08.2021 which has resulted in registration of Khowai P.S. Case No.
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2021/KHW 077 dated 10.08.2021 against the petitioner and others under
Sections-186/34 of IPC, the impugned order dated 10.08.2021 passed by
the learned Chief Judicial Magistrate, Khowai in Misc 11 of 2021
whereby the learned Chief Judicial Magistrate, Khowai granted the
permission of investigation of the case on the basis of impugned
complaint dated 09.08.2021, impugned FIR of Khowai P.S. Case
No.2021 KHW 077 dated 10.08.2021 registered against the petitioner &
others for committing offence punishable under Sections-186/34 of IPC,
and the impugned police report vide charge-sheet No.06 of 2022 filed
under Sections-186/34 of IPC dated 28.01.2022, in connection with
Khowai P.S. Case No.2021KHW 077.
[3] The case of the prosecution, in brief, is that the respondent
No.2 lodged a suo moto complaint before the Office-in-charge of Khowai
police station, thereafter as per order of the learned Magistrate they
registered an FIR and investigated the case and after completion of
investigation police submitted charge-sheet against the petitioner and
others. By filing the instant petition under Section-482 of Cr. P.C., the
petitioner challenged the FIR, order of the learned Magistrate, complaint
and the charge-sheet.
[4] Mr. S. Lodh, learned counsel appearing for the petitioner has
submitted that the petitioner has been wrongly and unlawfully implicated
in a complaint lodged by the respondent No.2 which has resulted in
registration of Khowai P.S. Case No.2021KHW077 against the petitioner
& 5 others, under Sections-186/34 of IPC and thereafter, on the basis of
the prayer of the respondent No.2, the learned Magistrate, Khowai vide
impugned order dated 10.08.2021 granted permission for investigation of
the complaint dated 09.08.2021, which has resulted in registration of
Khowai P.S. Case No.2021 KHW 077. He has submitted that after
completion of the investigation, police submitted police report vide
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charge-sheet No.06 of 2022 against the petitioner and 5 others.
Therefore, the petitioner has the locus standi to present this application,
under Section-482 of Code of Criminal Procedure, 1973 for invocation of
the inherent powers of this Court and also for quashing/setting aside the
FIR, order of the learned Magistrate, complaint and the charge-sheet.
[5] Thus, the cause of action for presentation of this criminal
petition has arisen within the territorial limits of this Court and therefore,
there is no impediment in deciding the lis projected in this application.
He has submitted that the respondent No.2 lodged a suo moto complaint
before the Officer-in-Charge of Khowai police station, due to political
motivation alleging inter alia that Sri Debangshu Bhattacharjee & 13
others TMC leaders were arrested in connection with Teliamura P.S.
Case No.2021TLM 099 dated 07.08.2021 registered under Section-188
of the IPC and Section-3 of Epidemic Diseases Act, 1897 from Dhalabil
police line and were brought to khowai police station in order to forward
them before the Court and on getting the information of their arrest, at
11.30hrs a group of TMC leaders under the leadership of Sri Bratya
Basu, Minister of Education Department, Government of West Bengal,
Smt. Dola Sen, MP and TMC leaders Sri Kunal Ghosh, reached at PS.
Subsequently, at 12.55 hrs, Sri Abhishek Banerjee also reached at PS and
they started talking with Sri Rajib Sutradhar, SDPO, Khowai about the
arrest of their leaders
[6] He has submitted that the petitioner and others placed their
demand before the police authority to release the arrested persons from
PS but, the police authority informed that their demands are illegal and it
is not possible to release them. Thereafter, the accused persons named in
the FIR misbehaved with Addl. SP, Khowai and SDPO, Khowai and
started shouting in the chamber of OC of Khowai P.S and also said that
"all the police personnel are broker of BJP Party". He has submitted that
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the informant and other officers requested them to leave the PS and to
allow them to forward the arrested persons before the Court but they did
not allow them to do so and wanted more time to keep the arrested
persons in the PS.
[7] The accused-persons created such problem in the Officer-in-
charge's chamber and there was huge gathering of TMC supporters and
media persons in front of the PS building. It is also alleged that even
though there was sufficient force and Women police personnel, but to
avoid untoward incident of cognizable offence, police did not apply
force. It also alleged that they made obstruction for an hour in the police
duty and due to their obstruction, the police could not produce the
arrested accused persons before the learned Court in time.
[8] That on 10.08.2021, the respondent No.2 made a prayer
before the learned Chief Judicial Magistrate, Khowai for passing
necessary order for registration of the case against the petitioner and 5
others for allegedly committing offences punishable under Section-186 &
34 of IPC. He has submitted that the respondent No.2 made this prayer as
the alleged offences are non-cognizable in nature and thereafter, the
impugned order dated 10.08.2021 granting permission for registration of
specific case was allowed.
[9] Thereafter, a case was registered vide Khowai P.S. Case
No.2021KHW 077 against the petitioner and 5 others AITC leaders for
allegedly committing offences punishable under Sections-186/34 of IPC,
marked as Annexure-3. He has submitted that after getting information
about the registration of the aforesaid criminal case, the petitioner filed
an application under Section-482 of Cr. P.C. before this Court for
quashing/setting aside the FIR and the same case was registered and
marked as CRL Petn.35 of 2021. Thereafter, the Hon'ble Court was
pleased enough to issue notice upon the respondents and also directed not
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to file any final report without the leave of this Court. In the meantime,
the investigation was completed and the respondent sought for leave of
this Court to submit charge-sheet and by order dated 15.02.2022 leave
was granted and the charge-sheet was filed under Sections-186/34 of IPC
before the learned Court of the Chief Judicial Magistrate, Khowai on
17.02.2022.
[10] He has submitted that as the charge-sheet has been filed, the
petitioner made a prayer before the Court to withdraw the petition filed
under Section-482 of Cr. P.C. [Crl. Petn. No.35 of 2021] with a liberty to
file afresh, challenging the impugned charge-sheet as well as the FIR.
Copies of the police report and the order of this Court.
[11] It is submitted that on bare perusal of the written complaint
that when AITC leaders were arrested by the police in connection with
Teliamura PS Case No.2021TLM099, all the offences were bailable. It is
also revealed that in spite of the fact that they were arrested in connection
with bailable offences; police were not releasing them on bail. It is
further revealed that for releasing the arrested persons, the accused
persons of the instant case went to the police station and approached the
police authorities to release them on bail. The aforesaid legitimate and
legal demand of the petitioner and his associates has been termed as
illegal demand, and complaint was lodged against them. He has
submitted that when the respondent No.2 by forwarding the written
complaint made prayer for permission for registration of the case, the
learned Magistrate without applying his judicial mind granted
permission. As such, the written complaint, order dated 10.08.2021 and
the FIR being numbered as 2021TLM 099 are liable to be quashed.
[12] It is his case that to meet political vendetta, police personnel
most illegally detained AITC leaders in Dhalabil Police Line in
connection with case No. 2021TLM099, allegedly committing offences
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punishable under Section-188 of IPC and Section-03 of Epidemic
Diseases Act,1897. As per Section-03 of Epidemic Diseases Act, if
anybody disobeys any regulation or order made under the Act, shall be
deemed to have committed an offence punishable under Section-188 of
IPC. He has further argued that since Section-188 of IPC is bailable in
nature, when the said petitioners were arrested, they should have been
released on bail and/or they should have been offered to go on bail, but in
the instant case when they did not allow them to go on bail, the petitioner
and others requested the police personnel to release the on bail, but the
said request of the petitioner and others has been termed by the
respondents as illegal.
[13] He has further contended that when Sri Debangshu
Bhattacharjee and others were forwarded before the learned Court, the
police authorities made a prayer for judicial remand, even though the
case has been registered on bailable offences. The illegal activities of the
respondents did not end here, further they also vehemently opposed the
bail prayer of the aforesaid accused persons when they were produced
before the learned Magistrate and the same is reflected in the order dated
08.08.2021. It reveals that even though the case has been registered for
bailable offences, they were neither offered to go on bail, nor the request
made by the petitioner and others for releasing them on bail was
accepted. Release on bail in connection with a bailable offence, is not
only a statutory right of a person, but the same is also a right as enshrined
in Part-III of the Constitution of India.
[14] When police were violating the same, the petitioner and
other accused persons being the social activists and leaders of AITC,
requested police personnel to release them on bail. Thus, it is most
humbly submitted that as the demand was legitimate and lawful, the same
cannot be termed as an offence within the meaning of any penal
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provisions. It has been further submitted that every citizen of India has a
Fundamental Right to form a peaceful Assembly and make their peaceful
demands, and by no stretch of imagination that can be construed to be an
act related to any offence. In the instant case, as the petitioner and others
placed their legitimate and legal demands before the appropriate
authority, the same cannot be termed as an offence within the meaning of
IPC.
[15] It has been further contended that on bare perusal of the
police report and the FIR, it would be evident that the petitioner and Sri
Prakesh Das have been shown as accused persons, but neither in the FIR,
nor in the police report the respondents demonstrate the role of the
aforesaid two accused persons. The aforesaid fact clearly demonstrates
the vindictiveness of the respondents and their non-application of mind.
[16] It has further been stated that as per story of the written
complaint as well as the police report, the alleged incident took place on
08.08.2021 approximately between 13.03 hrs to 14.35 hrs and the place
of occurrence was Khowai PS Complex, but very surprisingly the
information about the aforesaid incident was received by the same
Khowai P.S. on 09.08.2021 at about 21.29 hrs and the same is reflected
in the printed FIR.
[17] It has been further submitted that as per written complaint as
well as the police report, the alleged incident took place on 08.08.2021
but, the written complaint was lodged on 09.08.2021 and the FIR was
registered on 10.08.2021. Hence, there is an inordinate delay for which
no explanation is given. It is trite law that the delay is not fatal of a
prosecution case, if the delay is property explained, but in the present
case the prosecution has failed to explain the inordinate delay in lodging
the FIR which creates a serious doubt about the prosecution version.
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[18] He argued that there are no ingredients of Section-186 of
IPC in the FIR as well as in the police report. The gravamen of the
offence under Section-186 of IPC is voluntary obstruction to the public
servant in discharging of his public functions. Where a public officer acts
beyond his official duty, then a peaceful protest cannot be termed as an
offence under Section-186 of IPC. The mandate of law by not releasing
the fourteen accused person on bail in a bailable offence and thus for the
same the petitioner and other leaders were compelled to show their
grievance before the police authorities.
[19] He has further contended that by the impugned order dated
10.08.2021, the learned Magistrate opined that the accusation made in the
FIR needs for investigation. As such, the learned Court failed to consider
that for committing a non-cognizable offence, no FIR can be registered.
An FIR can be registered only on the allegation of cognizable offence,
which is reflected from bare perusal of Section-154 of the Cr. P.C as well
as from the Form for the registration of the FIR.
[20] Mr. Lodh, learned counsel has relied on a decision of the Apex
Court in Adalat Prasad v. Rooplal Jindal and Others, reported in (2004) 7
SCC 338, wherein the Apex Court has observed thus:
"5. When this appeal came up for preliminary hearing on 13.11.2002
learned counsel appearing for the appellant relied on a judgment of
this Court in the case of K.M. Mathew v. State of Kerala & Anr ,
wherein it was held that it was open to the court issuing summons to
recall the same on being satisfied that the issuance of summons was
not in accordance with law. The court which heard this matter at the
preliminary stage doubted the correctness of the judgment in
Mathew's case (supra) hence referred that case of Nilamani Routray
v. Bennett Coleman & Co. Ltd. to a larger Bench. However said case
of Nilamani (supra) got settled out of court hence the issue involved in
Mathew's case (supra) was not decided by the larger Bench.
Therefore on 3.12.2002 this Court directed that the present appeal be
placed before a 3-Judge Bench with a view to consider the correctness
of the law laid down by this Court in Mathew's case (supra). It is in
this background this appeal has now come up for our consideration.
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15. It is true that if a Magistrate takes cognizance of an offence, issues
process without there being any allegation against the accused or any
material implicating the accused or in contravention of provision of
Sections 200 & 202, the order of the Magistrate may be vitiated, but
then the relief an aggrieved accused can obtain at that stage is not by
invoking section 203 of the Code because the Criminal Procedure
Code does not contemplate a review of an order. Hence in the absence
of any review power or inherent power with the subordinate criminal
courts, the remedy lies in invoking Section 482 of Code.
16. Therefore, in our opinion the observation of this Court in the case
of Mathew (supra) that for recalling an order of issuance of process
erroneously, no specific provision of law is required would run
counter to the Scheme of the Code which has not provided for review
and prohibits interference at inter-locutory stages. Therefore, we are
of the opinion, that the view of this Court in Mathew's case (supra)
that no specific provision is required for recalling an erroneous order,
amounting to one without jurisdiction, does not lay down the correct
law."
[21] In Kishan Singh (dead) Through Lrs. V. Gurpal Singh and
Others, reported in (2010) 8 SCC 775, wherein the Apex Court has observed
as under:
"21. Prompt and early reporting of the occurrence by the informant
with all its vivid details gives an assurance regarding truth of its
version. In case, there is some delay in filing the FIR, the complainant
must give explanation for the same. Undoubtedly, delay in lodging the
FIR does not make the complainant's case improbable when such
delay is properly explained. However, deliberate delay in lodging the
complaint is always fatal. [vide: Sahib Singh Vs. State of Haryana.
22. In cases where there is a delay in lodging a FIR, the Court has to
look for a plausible explanation for such delay. In absence of such an
explanation, the delay may be fatal. The reason for quashing such
proceedings may not be merely that the allegations were an after
thought or had given a coloured version of events. In such cases the
court should carefully examine the facts before it for the reason that a
frustrated litigant who failed to succeed before the Civil Court may
initiate criminal proceedings just to harass the other side with mala
fide intentions or the ulterior motive of wreaking vengeance on the
other party. Chagrined and frustrated litigants should not be
permitted to give vent to their frustrations by cheaply invoking the
jurisdiction of the criminal court. The court proceedings ought not to
be permitted to degenerate into a weapon of harassment and
persecution. In such a case, where an FIR is lodged clearly with a
view to spite the other party because of a private and personal grudge
and to enmesh the other party in long and arduous criminal
proceedings, the court may take a view that it amounts to an abuse of
the process of law in the facts and circumstances of the case. (vide :
Page 10 of 17
Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr., State of
Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., G. Sagar Suri & Anr. Vs.
State of U.P. & Ors., and Gorige Pentaiah Vs. State of A.P. & Ors."
[22] Allahabad High Court in respect of the term 'obstruction' in
Phudki v. State, reported in [1995 CRI.L.J 278, wherein the High Court has
observed inter alia as under:
"6. Before this section can be made applicable, the prosecution has to
prove that there has been voluntary obstruction of a public servant in
the discharge of his public functions. In this case, on the findings it
cannot be said that there was any voluntary „obstruction‟ by Phudki,
indeed the learned Judge found that Phudki had not been guilty of
any violence or even any show of violence against the police party. All
that has been found against him was that he ran away from arrest, or
that he did not actually submit to being arrested."
[23] Mr. S. S. Dey, learned Advocate General assisted by Ms. A.
Chakraborty, learned counsel appearing for the respondents on the very outset
has contended that the present petition as preferred by the petitioner is not
maintainable under Section-482 of Cr. P.C. He has submitted that the inherent
powers of this Court are saved for use to prevent abuse of process of any Court
or otherwise to secure the ends of the justice. When the Code itself contains
specific provision under Section-227 giving right to the accused to raise
objection in the event of consideration of charges which can entail in a suitable
case even discharge of the accused.
[24] He has further contended that for the purpose of invoking the
inherent power of this Court the factual position as stated in the FIR as well as
the charge-sheet cannot be disputed and the lack of jurisdiction so as to make
out a case for prevent of process of any Court or secure ends of justice. In the
present case the same is absolutely absent and the accused person, as apparent
in their pleadings has tried to build up defence as if before a trial court framing
charges. The jurisdiction being exercised by this Court under extraordinary
inherent powers cannot be equated and misused as that of a Court conducting
trial. He further argued that the petitioner in this petition, under individual
capacity, is not competent under law to raise the grounds of defence against the
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charge framed in respect of other individuals, albeit even with common
intention.
[25] The learned Additional Public Prosecutor argued on the point
that this petition is not maintainable and also prayed for dismissal of the same
on the ground that the inherent powers of this Court are saved for use to
prevent abuse of process of any Court or otherwise to secure the ends of
justice. When the Code itself contains specific provision under Section-227
giving right to the accused to raise objection in the event of consideration of
charges which can entail in a suitable case even discharge of the accused, the
inherent extraordinary power of Section-482 of the Code cannot be invoked.
He further contended that it is a case of sessions and also it is a case of
summons and warrant.
[26] In reply, Mr. Lodh, learned counsel appearing for the petitioner
has submitted that since it is bailable case and punishment for 2 years and also
triable by the Magistrate, question of invoking Section-227 of Cr. P.C. in filing
the application for discharge before the Sessions Court does not arise and the
same is not applicable to the facts and circumstances of the case in terms of the
Code of Criminal Procedure. With regard to Section-251, he has contended
that it is not a case for filing appropriate application before the Summary trial
Court. He has also submitted that the police report, complaint and the charge
sheet if tested in the light of the definition of the Code of Criminal Procedure,
the case of the prosecution will not stand to the legal scrutiny and it would be
liable for set aside and prayed to allow the petition.
[27] According to this Court, the ingredient of Section-186 is the
accused person must have caused voluntary obstruction. The word
obstruction connotes some overt act in the nature of violence and show of
violence, which is present in the present FIR as well as the Charge-sheet.
For purpose of reference the definition of Section-186 of IPC is
reproduced herein below:
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"Section-186:- Obstructing public servant in discharge of public
functions: Whoever voluntarily obstructs any public servant in the
discharge of his public functions, shall be punished with imprisonment
of either description for a term which may extend to three months, or
with fine which may extend to five hundred rupees, or with both."
[28] Any obstruction to a public servant in performing his duty
and in this case not allowing the police officials to produce the accused
before the Magistrate by gathering in large number cannot be treated less
than violence. For the purpose of reference the process of registering FIR
as enshrined under Section-190 of Cr. P.C. is reproduced:
"Section 190 of CRPC "Cognizance of offences by Magistrates"
(1) Subject to the provisions of this Chapter, any Magistrate of the
first class, and any Magistrate of the second class specially
empowered in this behalf under sub-section (2), may take cognizance
of any offence-
(a) Upon receiving a complaint of facts which constitute such offence;
(b) Upon a police report of such facts;
(c) Upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the
second class to take cognizance under sub-section (1) of such offences
as are within his competence to inquire into or try."
[29] As per provision of Cr. P.C. for a non-cognizable offence, a
Magistrate can order for investigation of the offence and after
investigation, the report as contemplated under Section-173 of Cr. P.C,
should be treated as complaint and the investigating officer be treated as
complainant and the case should be treated as a complaint case. In
passing of the order dated 10.08.2021, the learned Magistrate has not
failed to consider the mandates of aforesaid legal provisions, and hence,
the impugned order dated 10.08.2021 is not bad in law.
[30] For the purpose of reference, the inner meaning of Sections-
154 and 155 of Cr. P.C. is extracted:
"154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police station, shall
be reduced to writing by him or under his direction, and be read Over
to the informant; and every such information, whether given in
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writing or reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be entered in a book
to be kept by such officer in such form as the State Government may
prescribe in this behalf.
*****
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
*****"
155. Information as to non- cognizable cases and investigation of such cases.
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-
cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable."
[31] The inherent extraordinary power of Section-482 of the Code cannot be invoked. Section-482 of Cr. P.C. is as under:
"482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
[32] Further, no case has been made out, as to why the specific statutory provision of Section-277 of the Code has been ignored and the Page 14 of 17 extraordinary inherent power of this Court has been invoked by the petitioner. This being not a forum of trial, suffice it to say that the contents of both the FIRs and final report/charge-sheet disclose grounds to try the accused persons under Sections-186/34 of IPC. The case that have been registered in strict compliance of Section-155 of Cr. P.C. culminating in submission of report under Section-173 of the said Code containing sufficient evidence and grounds to try the accused persons. Section-156 of Cr. P.C. is extracted thus:
156. Police officer' s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
[33] The FIR dated 09.08.2021 reveals the name of six accused persons who were being charge-sheeted after an investigation sanctioned under Section-155 of the Cr. P.C. as per order dated 10.08.2021 as the present case being that of a non-cognizable offence. Thus, on jurisdictional issue, no case has been made out justifying invocation of the inherent power of this Court under Section-482 of Cr. PC. Both the FIRs and the charge-sheet involve six accused persons while a lone petitioner has filed the petition praying for quashing of the entire proceeding. Their legal rights are not infringed by registering the FIR.
[34] Suffice it to say that the contents of the FIR prima facie contain ingredients for registration of the case under Section-186/34 of IPC. The registration and investigation of the case was proceeded strictly in terms of Section-155 of Cr. P.C., Section-186 of IPC being an non-cognizable offence.
[35] Thereafter, on completion of enquiry and on receipt of sufficient evidence and reasonable grounds as contemplated under law, the charge sheet is being submitted for consideration of the competent Court of law in terms of Page 15 of 17 the provisions of Section-173 and other provisions of the Code. The prima facie appreciation of the report reveals presence of sufficient tenable evidence as well as grounds to proceed on trial against all the accused persons.
"Section-173 of IPC
173. Preventing service of summons or other proceeding, or pre- venting publication thereof.--Whoever in any manner intentionally prevents the serving on himself, or on any other person, of any summons, notice or order proceeding from any public servant legally competent, as such public servant, to issue such summons, notice or order, or intentionally prevents the lawful affixing to any place of any such summons, notice or order, or intentionally removes any such summons, notice or order from any place to which it is lawfully affixed, or intentionally prevents the lawful making of any proclamation, under the authority of any public servant legally competent, as such public servant, to direct such proclamation to be made, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both;
or, if the summons, notice, order or proclamation is to attend in person or by agent, or 1[to produce a document or electronic record in a Court of Justice], with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
[36] The right of the petitioner is not infringed by registering and FIR and mere using the stationary of Section-154 of Cr. PC. The judgment as cited by the learned counsel appearing for the petitioner in Phudki v. State (supra) is not applicable in the present context of the case as Article-19 do not give right to shout, slogans in PS/SHO and obstruct the functioning of a public servant. In terms of Section-155 Cr. P.C. order is made for investigation of the case by OC, Khowai PS or any other officer entrusted by him after registration of specific case.
[37] Earlier also a quash petition was preferred before this Court being numbers as Crl. Petn .No. 35 of 2021 and since the same filed against the FIR and during the course of pendency of the matter charge-sheet came to be filed. In view of the same, the petitioner has sought for withdrawal of the petition with a liberty to file afresh and as such, the matter was dismissed as Page 16 of 17 withdrawn giving liberty to the petitioner to file afresh. On receipt of the said charge-sheet, the petitioner now filed this present petition.
[38] It is relevant to refer Section-251 of Cr. P.C. wherein it has been observed thus:
"251. Substance of accusation to be stated:- When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge."
[39] The accused being politicians cannot only contest for their fundamental rights. It is their bounded duty to first fulfill their fundamental duties, more to the interest of the Constitution, law and order on priority but not to their political party and its supporters.
[40] Admittedly, the case has been registered against the accused- persons and it is not indispute that the persons named in the FIR under Section- 26(A) and 34 of IPC for barging into the police station which is the office of the public servant as defined in the Code and further, their action in obstructing the police authority performing their duties, cannot be appreciated because the persons who were held for committed the offence are public representatives. It become the bounded duty of the public representatives and leaders of a political party to respect the responsibility and the duties of a public servant and in the event of any infirmity committed in performing the service by the public servant, it is always open for them to approach the judiciary.
[41] It is not just and proper on the part of a politician to overpower to a Government servant. Day in and day out, violent acts committed by the followers of the political parties are brought to light by way of news. At times it becomes nightmare for common citizen to have a peaceful sleep at their house and here is a case where political leaders barged into an office of the public servant and threatening, abusing them in their public office being public representatives. Verbalize high above the attitude of the accused-persons. The allegations against the accused-persons cannot be equated with a common citizen since they holding special identity in the society and it is their bounded Page 17 of 17 duty to protect the Constitution and the law of the land. Since the entire proceeding of registering FIR and conducting investigation and filing of charge-sheet is in pursuance of the judicial order 10.08.2021 and the same do not attract any legal infirmity.
[42] It also becomes necessary to consider this aspect which would go in a long way in destruction of the law and order and the inference of such action of the accused-persons in barging in the public office and abusing the public servant. If they are allowed to get over under the garb of legal provisions, the message which goes to common citizens may be receiving in other way and may draw an inference that the public servant is helpless. This Court is not inclined to let the common citizens draw such inference against the system. The public representatives/public servants have to respect each other and maintain their demureness. No one is above the law of the land.
[43] In view of above observation, this Court is not inclined to consider the prayer of the petitioner as prayed for in the present petition and thus, the same stands dismissed.
JUDGE A.Ghosh