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2005 DIGILAW 551 (GAU)

Pravir Kumar Roy v. State of Meghalaya

2005-08-03

B.LAMARE

body2005
JUDGMENT B. Lamare, J. 1. Heard Mr. H.S. Thangkhiew, learned Counsel for the Petitioner. Also heard Mr. N.D. Chullai, learned P.P. Meghalaya and Mr. T.T. Diengdoh, learned Counsel for the Respondent No. 4. 2. The Petitioner was a tenant of Respondent No. 4 in respect of premises covered by Patta No. 15 of 03 and Municipality Holding No. 199 of Ward No. 4 of Shillong Municipality, a tenancy agreement to this effect was executed between the Petitioner and Respondent No. 4 on 1.3.1998. The said premises were occupied by the Petitioner and his two domestic helps namely Sri Arun Kumar Nath and Shri Uday Sarma. 3. The case of the Petitioner is that a relationship between him and the Respondent No. 4 was cordial till August, 2002. However, on 6.8.2002 a legal notice was issued by the Respondent No. 4 through her Advocate alleging that the Petitioner had defaulted in the payment of monthly rent in respect of the said rented premises and directed the Petitioner to clear all the arrear rents within the month of August, 2002. It is also the case of the Petitioner that on the basis of this notice he paid a sum of Rs. 60,000/- to one Shri Mrinal Kumar Deka on 5.10.2002, the authorized representative of Respondent No. 4. The Petitioner however, alleged that on 4.11.2002, when the Petitioner was in his Tea Estate residence in Golaghat he received a telephone call from his domestic help Mr. Arun Kumar Nath informing that the Respondent No. 4 with the help of some unknown persons had forcefully entered into the premises by breaking the door and removed all the belongings of the Petitioner from the premises. Accordingly, the Petitioner on receipt of this information reached Shillong on 6.11.2002 and approached the police by filing a report on 7.11.2002 to the Superintendent of Police, Shillong City. The Petitioner lodged another report on 8.11.2002 to the Superintendent of Police, Shillong City informing about the kidnapping and confinement of Shri Arun Kumar Nath by Respondent No. 4. As the Petitioner did not get any response from the police, the Petitioner lodged another report on 9.11.2002. According to the Petitioner the police did not take any action on the said reports lodged by him. 4. As the Petitioner did not get any response from the police, the Petitioner lodged another report on 9.11.2002. According to the Petitioner the police did not take any action on the said reports lodged by him. 4. On failure to get any response from the police, the Petitioner approached this Court in W.P. (Cri) No. 43 of 2002 with a habeas corpus petition for kidnapping and confinement of Shri Arun Kumar Nath on 8.11.2002. However, the said habeas corpus petition was dismissed by the Division Bench of this Court by order dated 4.12.2002, as no case was made out to interfere with by the Court. The Petitioner was however, given a liberty to approach this Court by filing a petition under Section 482, Code of Criminal Procedure hence this petition. 5. In order to appreciate the above allegations made by the Petitioner, the learned P.P. was directed to produce the case records. On perusal of the records, it is seen that on receipt of the said complaints dated 7th, 8th and 29.11.2002 made by the Petitioner a case being Laitumkhrah P.S. Case NO. 110 (II) 2002 under Sections 454, 380, 506 and 34, IPC was registered. The case was investigated by the police and the statement of domestic help namely, Shri Arun Kumar Nath of the Petitioner who was alleged to have been kidnapped and confined by the Respondent NO. 4, was recorded by the Magistrate on 23.3.2003. From the statement of Shri Arun Kumar Nath it is seen that he was engaged as a cook w.e.f. 7.10.2001 on salary of Rs. 1200/- per month. Shri Arun Kumar Nath was staying in the premises and according to the statement his master did not come to Shillong from August, 2002 till the date his statement was recorded, his master also did not pay his salary regularly. According to this employee on 4.11.2002, the Respondent NO. 4 visited the premises with the local Headman and enquired about the Petitioner and he told her that his master has never come to Shillong since August, 2002. Then Respondent NO. 4 asked him to give the lock and key of the house and he gave it to her. In the statement of this employee, there is nothing to indicate that the Respondent NO. 4 removed the belongings of the Petitioner from the premises. Then Respondent NO. 4 asked him to give the lock and key of the house and he gave it to her. In the statement of this employee, there is nothing to indicate that the Respondent NO. 4 removed the belongings of the Petitioner from the premises. On the other hand when the Magistrate put a specific question to Mr. Nath whether Mrs. O.B. Tariang removed the articles/goods belonging to the Petitioner Mr. P.K. Roy, Mr. Nath specifically answered that Mrs. O.B. Tariang (Respondent NO. 4) did not touch those articles/goods belonging to Mr. P.K. Roy which were lying in the room. He saw with his own eyes that the goods are lying there even now. 6. Therefore, the allegation of the Petitioner that no action was taken by the police on the basis of his complaint is not correct. The case was registered by the Laitumkhrah Police Station and according to the records there is no evidence to show that the Respondent NO. 4 has removed the belongings of the Petitioner from inside the house as claimed by the Petitioner. Moreover from the statement of Shri Arun Kumar Nath, it is seen that the Petitioner did not come to Shillong from August, 2002 onwards till the statement of Arun Kumar Nath was recorded on 23.3.2002 but the Petitioner has tried to make out a case by making a statement in paragraph 7 of the petition that he came to Shillong on 6.11.2002. The statement made by the Petitioner is therefore, contradictory to the statement made by his employee who is very much present in the premises. 7. Further from the perusal of the record, it is seen that the Petitioner has lodged a complaint dated 7.11.2002 to the Superintendent of Police, Shillong City by fax transmission. Another complaint dated 8.11.2002 and complaint dated 9.11.2002 were also sent by the registered post. By sending the complaints by fax transmission and by registered post it showed that the Petitioner was not at Shillong at the relevant time as these complaints were not submitted by him personally to the police. In a criminal complaint, it cannot be believed that the person who is not present at the place of occurrence could know the facts as alleged in the complaint. The complaints making the allegations therein can be ascertained only by the person who was at the place of occurrence. In a criminal complaint, it cannot be believed that the person who is not present at the place of occurrence could know the facts as alleged in the complaint. The complaints making the allegations therein can be ascertained only by the person who was at the place of occurrence. But he has made allegations of removing of his belongings from the house without seeing the actual position. Moreover his own employee has denied the allegations made by the Petitioner in his complaint through fax transmission and by registered post. 8. The allegations of the Petitioner is that the police did not take action on his complaint as already pointed out is not correct as the case was registered and investigation was conducted but no evidence could be made out against the Respondent NO. 4. The police therefore, informed the Petitioner through the Office-in-charge, Dispur Police Station, Guwahati by a Message dated 23.11.2002 that the dispute between the Petitioner and Respondent NO. 4 was of a civil dispute and a final report of the case which was registered was already submitted to the Chief Judicial Magistrate, Shillong and the learned C.J.M. on being satisfied with the police report had closed the case. 9. The Apex Court in the case of Janata Dal v. H.S. Chowdhary and other reported in (1992) 4 SCC 305 , in paragraphs 131, 132, 133 and 136 of the judgment held as follows: Section 482 which corresponds to Section 561-A of the old Code and to Section151 of the Code of Civil Procedure proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim "Quadolex aliquid alicui concedit, concedere videtur id sine quo ipsa, ess uon potest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. The Judicial Committee in Emperor v. Khwaja Nazir Ahmad and (2) Lala Jairam Das v. Emperor has taken the view that Section 561-A of the old Code gave no new powers but only provided that those with the Court already inherently possessed should be preserved. This view holds the field till date. Thus, the inherent power under this section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Vide (1) Talab Haji Hussain v. Madhukar Pursottam (2) Khushi Ram v. Hashim and (3) State of Orissa v. Ram Chander Agarwala. 10. In the case of M.C. Abraham and another v. State of Maharashtra and other reported in (2003) 2 SCC 649 , the Apex Court in paragraphs 17 and 18 of the judgment held as follows: The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accent the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation. In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the Magistrate concerned. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstances to issue a direction that the case should not only be investigated, but a charge-sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc. the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency. 11. The Respondent NO. 4 has also filed an application for modification, alteration or vacation of the order dated 3.3.2003 passed by this Court in the present Criminal Revision NO. 1 (SH) 2003. It is seen that the Respondent NO. 4 has already filed an ejectment suit NO. 45 (SH) 2002 against the present Petitioner for declaration, eviction and realization of the arrear rent amounting to Rs. 3,30,000/- (Rupees Three lakh thirty thousand). The suit was filed before the Court of the Asst. 1 (SH) 2003. It is seen that the Respondent NO. 4 has already filed an ejectment suit NO. 45 (SH) 2002 against the present Petitioner for declaration, eviction and realization of the arrear rent amounting to Rs. 3,30,000/- (Rupees Three lakh thirty thousand). The suit was filed before the Court of the Asst. to the Deputy Commissioner, Shillong, and the Court by judgment and order dated 11.12.2003 decreed the suit in favour of the Respondent NO. 4. On being decreed, a Title Execution Case NO. 2(T) 2004 was also filed in the same Court. The Petitioner however, filed an appeal before the Addl. Deputy Commissioner, Shillong against the judgment and decree of the trial Court in the said ejectment suit 45 (SH) 2002 and the appeal was registered as RFA1 (T) 2004. Along with the said appeal, the Petitioner also filed an application under Section 5 of the Limitation Act for condoning the delay of 150 days in filing the appeal. The learned Addl. Deputy Commissioner, Shillong condoned the delay of 150 days by order dated 27.8.2004. 12. Aggrieved by this order dated 27.8.2004 passed by the learned Addl. Deputy Commissioner, Shillong condoning the delay of 150 days in filing the appeal. The Respondent NO. 4 has approached this Court in civil revision petition NO. 33(SH) 2004 (242 of 2004) and this Court by judgment and order dated 11.3.2005 set aside the impugned order dated 27.8.2004 passed by the learned Addl. Deputy Commissioner, Shillong. 13. From the above facts it shows that the report submitted by the police is correct that there was no criminal act committed by the Respondent NO. 4 and a dispute between the Petitioner and Respondent NO. 4 is purely of a civil in nature. 14. From the facts and circumstances as narrated above, it is seen that on the basis of the complaints both fax transmission and registered post complaints made by the Petitioner, the Laitumkhrah Police Station has registered a case being Laitumkhrah P.S. Case NO. 110(11) 2002 corresponding G.R. Case NO. 367(A)(S) 2002 under Sections 454, 380, 506 and 34, IPC. An investigation was made into the case as there was no evidence made out by the Petitioner the case was submitted for final report by the police to the Court of the Chief Judicial Magistrate at Shillong. 110(11) 2002 corresponding G.R. Case NO. 367(A)(S) 2002 under Sections 454, 380, 506 and 34, IPC. An investigation was made into the case as there was no evidence made out by the Petitioner the case was submitted for final report by the police to the Court of the Chief Judicial Magistrate at Shillong. It is well settled position of law that the investigation part is the duty of the police and that the Court cannot direct the investigating agency to submit the charge-sheet against the accused. It is for the investigating agency to collect the evidence in the particular case and whether evidence could be collected or not, the Court is not to interfere with in such situation. The Court cannot direct the investigating agency with regard to the manner of the investigation of the case and also direct whether to submit or not to submit the charge-sheet. The Court is only to examine the report of the investigating agency and if the Court is not satisfied with the investigation then the Court may take cognizance of the offence and direct for proper investigation of the case. 15. In the instant case, the investigation was conducted and the same has ended in a final report which is submitted to the Chief Judicial Magistrate and the Chief Judicial Magistrate having satisfied himself that no prima facie case was made out has accepted the police report. The case of the Petitioner is therefore, fairly covered by the case of M.C. Abraham and another v. State of Maharashtra and other (supra). 16. After conclusion of the hearing of the Criminal Revision petition, the Petitioner has filed another application which was registered as Crl. Misc. Case NO. 7(SH) 2005. By this application the Petitioner has prayed for reinvestigation the case which was registered by the police on the basis of the said three complaints made by the Petitioner to the police. Since this Court has already come to the conclusion that the Petitioner has failed to make out a case for exercise of jurisdiction under Section 482, Code of Criminal Procedure this application fails and it is also rejected. 17. Since this Court has already come to the conclusion that the Petitioner has failed to make out a case for exercise of jurisdiction under Section 482, Code of Criminal Procedure this application fails and it is also rejected. 17. In view of the above observations and discussions, this Court is of the opinion that the Petitioner could not make out a case, for this Court to exercise its power under Section 482, Code of Criminal Procedure the revision petition therefore, fails and accordingly it is dismissed. 18. Considering the facts and circumstances of the case, there will be no order as to costs. Petition dismissed.