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2003 DIGILAW 33 (GAU)

Latif Ahmed Bin Hussain v. State of Assam

2003-01-20

I.A.ANSARI

body2003
I.A. ANSARI, J.— With the help of the present application made under Section 482 Cr.P.C, the petitioners have prayed for quashing the First Information Report, which has given rise to Mangaldoi Police Station Case No. 60/94 under Section 380 IPC (corresponding to GR Case No. 292/94) of the Court of Chief Judicial Magistrate, Darrang, Mangaldoi. 2. The material facts leading to the present revision may, in brief, be stated as follows: (i) One Shri A. Hadi, Sub-Divisional Agriculture Officer, Mangaldoi (hereinafter referred to as "the SDAO") lodged a written Ejahar, on 30.04.94, alleging, inter-alia, that on the previous day evening, while his office was still functioning, the informant received the information that some materials lying in the store of the Dis-trict Agriculture Office, Darrang, located within the District Agriculture Office campus, had been removed and he was, later on, told by the Store-in-charge, namely, Shri Rameswar Pathak (i.e. the petitioner No.2) that about one mini truck loaded with store materials had been sold to an outsider and that on being asked by the informant, the Store Keeper informed the informant that the sale had been done at the instance of the DAO, Mangaldoi, Shri LAB Hussain (i.e., the petitioner No. 1) to an outsider, which was unauthorised, and that after the incident, the DAO had left Mangaldoi for his home at Guwahati and Shri Rameswar Pathak aforementioned had left for his home at DhekiajuliTown. Treating the said Ejahar as FIR, Mangaldoi PS. Case No. 60/94 aforementioned was registered. The petitioner No. 1, namely, the DAO and petitioner No.2, namely, Shri Rameswar Pathak aforementioned were arrested and later on released on bail by order of the learned Chief Judicial Magistrate, Darrang. (ii) During investigation, police seized some store materials from the residential colony of the Agriculture Department at Mangaldoi. Police also seized some files from the office of the accused concerned. (ii) During investigation, police seized some store materials from the residential colony of the Agriculture Department at Mangaldoi. Police also seized some files from the office of the accused concerned. Thereafter, upon his release on bail, the petitioner No. 1 sent a letter on 02.05.94 (Annexure YE to the revision petition) addressed to the Director of Agriculture, Assam, Guwahati stating, inter-alia, that he had received complaints from his staff to the effect that there might be some leakage of pesticide in the godown, which was emanating smell and, on receipt of these complaints, he had directed that godown should be cleared and the scrap materials, which weighed about 8 quintals, be kept at a safer place i.e. in the training and residential campus of the office for auction in due course, but the informant aforementioned lodged the theft case with police without consulting him (i.e. the petitioner No. 1). 3. The petitioners have, now, approached this Court seeking, as indicated hereinabove, quashing of the FIR on the ground that they had acted bonafide and that the store materials had not been sold or stolen. 4.I have carefully perused the materials on record including the FIR. I have heard Mr. C.R. DeyandMr. D.P. Chaliha, learned Senior counsel for the petitioners. I have heard Mr. PC. Gayan, learned Addl. P.P. appearing on behalf of the respondents. 5. It has been submitted, on behalf of the petitioners, that even a cursory look at the seized documents will reveal that the seized store materials had not been stolen and that the same had been seized, while the same were in the process of being shifted from the godown office to the residential colony on the basis of petitioner No. 1 s order, which had been passed directing removal of the said articles on account of the fact that the office staff had complained of foul smell emanating from the godown. It is also submitted, on behalf of the petitioners, that in passing the said order, there was no foul play inasmuch as the materials, in question, had not been stolen and the same had been merely removed from one place to another with the object of disposing of the same, in due course, by auction, etc. These facts, according to learned counsel for the petitioners, become clear on a bare perusal of the papers seized by the police. These facts, according to learned counsel for the petitioners, become clear on a bare perusal of the papers seized by the police. The attention of this Court has accordingly been drawn to Annexure-II to the revision petition. 6. For the sake of brevity, Annexure-n is quoted below: "DAO As per your verbal instruction, I have weight the scrap materials of the godown in presence of store in-charge on 28.4.94 and 29.4.94 in scrap materials 7.80 Qt. Broken..................... material 85 kgs as per our previous quotation the above scrap materials may be disposed off other broken materials and shall have to call quotation and this item is required to be written of from the concern stock book. Put up for necessary action. A. Mazid B. C. D.A. 29.4.94 The staff of the DAOs office who sits adjacent to the godown requested several times for ................... of the godown due to pesticides and rejected articles which ......... pollution affect very badly. As such - 1. The pesticides which have got no record and expired one to be cleared and disposed in a ................. place in consultation to the subject matter.......... Records for safely. 2. The ............ one to be disposed to the highest bidder. 3. The material broken just are to be cleared after calling quotation and written....... from the stock book as per rule." 7. It is further submitted, on behalf of the petitioners, that since a bare reading of the seized papers including Annexure-H shows that no theft had been committed, contrary to what had been alleged by the informant, police investigation ought to have been stopped, but the same has been allowed to proceed and its continuance will be abuse of the process of the Court and will cause serious miscarriage of justice. It is, therefore, submitted that the FIR be quashed. In support of his submissions, Mr. Dey has referred to R.P. Kapoor Vs. State of Punjab ( AIR 1960 SC 866 ). 8. Before entering into the merit of this revision petition, it is of utmost importance to note that the documents on which the petitioners rely to show their innocence are materials for defence of the accused-petitioner. At this stage, what the Court has to look into is the FIR alone. State of Punjab ( AIR 1960 SC 866 ). 8. Before entering into the merit of this revision petition, it is of utmost importance to note that the documents on which the petitioners rely to show their innocence are materials for defence of the accused-petitioner. At this stage, what the Court has to look into is the FIR alone. If the contents of the FIR disclose commission of the cognigible offence, the High Court cannot quash the proceeding under its inherent powers under Section 482 Cr.P.C. by taking into account some papers on the basis of which the order for disposal of the property is shown to have been passed by the petitioner No. 1.1 am guided to adopt this view from the very decision of the Apex Court on which Mr. Dey places reliance, namely, case of R.P. Kapoor (supra), wherein the Apex Court has laid down to the effect that in cases, where allegations contained in the FIR, even when taken at their face value or accepted in their entirety, do not constitute the offence alleged, the FIR can be quashed, for, in such cases, question of appreciation of evidence does not arise. 9. In the leading case of State of Haryana and Ors. Vs. Bhajanlal and others, 1992 Supp. (1) SCC 335, the Apex Court laid down as follows: "102. In the backdrop of the interpretation of the. various relevant provisions of the code under chapter xiv and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduce above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the First Information Report or the complain, 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. (1) Where the allegations made in the First Information Report or the complain, 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 un-controverted allegations made in the FIR or complaint and 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 allegation 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 the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide 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 private grudge." 10. In the case of Bhajanlal (supra), the Apex Court gave a note of caution on the power of quashing of Criminal proceeding in the following words: "103. In the case of Bhajanlal (supra), the Apex Court gave a note of caution on the power of quashing of Criminal proceeding in the following words: "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases: that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to . its whim or caprice." (Emphasis is added) 11. It is clear from a close reading of the principles laid down in Bhajanlal's case (supra) that when the allegations made in the FIR disclose commission of a cognigible offence, such an FIR cannot be quashed by relying upon some other materials, which might have been seized by police and on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the FIR or the probability of the defence plea can be determined only by effective investigation or at the trial. 12. In State of Bihar and Another Vs. Mohd. Khalique and Another, (2002) 1SCC 652, the Apex Court, while dealing with the question of quashing of FIR, observed as follows: "7. In Bhajan Lal Case, this Court has also held that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases. The present case is not rarest of rare case. 8. In view of the settled legal position and as offences have been disclosed in the FIR, the High Court ought not to have interfered with the investigation and should have permitted the police to complete it. We, accordingly, hold that the High Court has committed a grave error in quashing the entire proceedings and ought not to have thwarted the prosecution." (Emphasis is added) 13. The case of Mohd. Khalique (supra) too clearly shows that when offence is disclosed by the FIR, High Court must not interfere with the investigation and should allow police to complete the investigation. 14. The case of Mohd. Khalique (supra) too clearly shows that when offence is disclosed by the FIR, High Court must not interfere with the investigation and should allow police to complete the investigation. 14. In the case at hand, in view of the fact that the clear allegation in the FIR is that the store materials have been unauthorizedly sold and the same have been accordingly seized from the residential colony of the Agriculture Department and not from the office godown, where the materials, in question, were, ordinarily, kept, the question will be whether the order(s), which are shown to have been passed, vide Annexure-n, by the petitioner No. 1, reveal the real state of affairs or not. It is yet to be investigated if the staff of the DAO's office had really made any complaint and if the order for disposal of the material had been passed by the DAO bonafide. The bonafide or otherwise of the actions taken by the petitioners, being matters of fact, can be determined only by an effective investigation or at the time of trial. But at this stage, this Court can not treat the contents of the Annexure-n as true or correct and the Court cannot thereby refuse to believe the contents of the FIR and quash the same. Such a course will if adopted by the Court, be contrary to the established position oflaw. 15. In view of the above, I find absolutely no reason to interfere with the investigation of the police nor do I find any reason to quash the FIR. 16. In the result and for the reasons discussed above, this revision fails and the same is dismissed with a direction to the Superintendent of Police, Darrang, to expedite the investigation of the case and submit police report in the Final Form to the learned Chief Judicial Magistrate, Darrang, for further necessary orders. 17. Send back forthwith the LCR along with a copy of this judgment and order.