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2006 DIGILAW 36 (CAL)

KAMAL KRISHNA SARDAR v. STATE OF WEST BENGAL

2006-01-20

S.P.TALUKDAR

body2006
S. P. TALUKDAR, J, J. ( 1 ) GRIEVANCES of the petitioner in this case arising out of an application under section 482 of the Code of Criminal Procedure, as ventilated in the application, may briefly be stated as follows: the petitioner is the stockist in respect of Mid^day Meal and SGRY rice of kultali Block and has been carrying on the said business by distributing foodgrains to the distributing agents. On 12. 11. 2005 a written complaint was made by the Block Development Officer, Kultali which was addressed to the officer-in-Charge of the Kultali Police Station. Request was made for treating the said complaint as First Information Report. ( 2 ) ON the basis of the said complaint a criminal case, being Kultali P. S. Case No. 134 of 2005 dated 12. 11. 2005 under section 409/34 of Indian Penal code corresponding to B. G. R. Case No. 4074 of 2005, was started. Allegations made in the said petition of complaint do not constitute any offence under section 409 and section 34 of the Indian Penal Code. There is no allegation in the complaint that the petitioner misappropriated foodgrains entrusted to him and as such, ingredients of the offence punishable under section 409 of Indian Penal code were not disclosed in the First Information Report. The allegations made in the First Information Report do not constitute any cognizable offence nor do the same make out a case against the petitioner. The petitioner was falsely implicated in the present case and it was done by the Block Development Officer, kultali, and his associates with a mala fide intention. The concerned Block development Officer was all along interested to appoint one Gouri Bala Haider as stockist under the Mid-day Meal Scheme and Sampurna Gramin Rojgar yojana. For this, the present petitioner was served with show-cause notices on several occasions. The petitioner sought for necessary redress before the Hon'ble high Court. Being unsuccessful in dislodging the petitioner from his assignment as stockist, the Block Development Officer with his associates filed the said case with false and absurd allegations. There is no explanation for the delay in filing the complaint over an occurrence, which allegedly took place on 26. 10. 2005. There is reference of one Memo No. 998 dated 9. 11. 2005 in the said complaint dated 12. 11. 2005. As such, the complaint dated 12. 11. There is no explanation for the delay in filing the complaint over an occurrence, which allegedly took place on 26. 10. 2005. There is reference of one Memo No. 998 dated 9. 11. 2005 in the said complaint dated 12. 11. 2005. As such, the complaint dated 12. 11. 2005, being a second FIR over the self-same allegations, is liable to be quashed. It is alleged that the allegations in the FIR and the evidence collected so far do not constitute any offience under section 409/34 of IPC. Being aggrieved by initiation of such a proceeding, being Kultali P. S. Case No. 134 of 2005 dated 12. 11. 2005 under section 409/34 of IPC, the petitioner by filing such application sought for quashing of the proceedings. ( 3 ) THIS was strongly opposed by the opposite party/state of West Bengal. ( 4 ) MR. Ajit Kumar Panja, being assisted by Mr. Milon Mukherjee, submitted that there could be no scope for proceeding with the case, being Kultali P. S. Case no. 134 of 2005, on the basis of a complaint dated 12. 11. 2005. The main thrust of argument was that the complaint dated 12. 11. 2005, being the second FIR over the self-same allegations and proceeding on the basis of the same is liable to be quashed. It was also submitted on behalf of the petitioner that the allegations made under the complaint dated 12. 11. 2005 do not at all constitute any cognizable offence under section 409 read with section 34 of IPC. Mr, Panja further submitted that in absence of any specific allegatons that the petitioner was entrusted with any property, question of misappropriation could hardly arise. It was submitted on behalf of the petitioner that mere dishonest misappropriation of property is an offence within the meaning of section 403 of IPC. On behalf of the petitioner, reference was made to the decision in T. T. Antony vs. State of Kerala, reported in 2001 (6) SCC 181 , in support of the contention that there can be no second FIR nor any fresh investigation on receipt of subsequent information. It was submitted that after registering the FIR and commencing investigation, registering of second fir or successive FIRs. It was submitted that after registering the FIR and commencing investigation, registering of second fir or successive FIRs. in respect of the same incident and crime and making of fresh investigations pursuant thereto would be irregular which call for interference by High Court and such interference may be made in exercise of High Court's power under Article 226/227 of the Constitution or section 482 of the Code of crimimal Procedure. ( 5 ) MR. Safiullah, learned Public Prosecutor, in response to such submission, submits that there is no FIR except the complaint dated 12. 11. 2005, which was, of course, treated as FIR. According to him, reference of earlier Memo dated 9. 11. 2005 cannot and does not lead to any presumption of existence of any earlier FIR over the self-same allegations. Mr. Safiullah submitted that the relevant correspondence, which has been referred to in the complaint dated 12. 11. 2005, which was treated as FIR in the case under reference, referred to memo No. 998 dated 9. 11. 2005, of the office of the Block Development Officer, kultali. Drawing attention of the Court to the relevant document in the case diary, it was submitted that it was a mass petition. ( 6 ) AFTER giving due regard to the submissions made by the learned Counsel for the parties it appears that first point requiring adjudication by this Court is whether or not the case under reference is proceeding on the basis of a second fir over the self-same allegations. On behalf of the petitioner much emphasis was laid on the date of the written complaint being mentioned as 12. 11. 2005 and the reference to the Memo dated 9. 11. 2005 in the said written complaint. Mr. Safiullah, learned Public Prosecutor, referring to the materials in the case dairy emphatically asserted that no FIR was made on 9. 11. 2005 and mere reference of the mass petition dated 9. 11. 2005 in the written complaint dated 12. 11. 2005 does not make the latter a second FIR. ( 7 ) CONSIDERING all these aspects I find no force in the grievance as ventilated on behalf of the petitioner in this regard. 11. 2005 and mere reference of the mass petition dated 9. 11. 2005 in the written complaint dated 12. 11. 2005 does not make the latter a second FIR. ( 7 ) CONSIDERING all these aspects I find no force in the grievance as ventilated on behalf of the petitioner in this regard. ( 8 ) ON behalf of the petitioner it was also submitted that in absence of any concrete material indicating entrustment in favour of the petitioner, question of misappropriation could hardly arise and the submission that the allegations otherwise at best disclose an offence of non-cognizable nature, does not seem to have any sound rational basis. The clear allegation of misappropriation in the written complaint dated 12. 11. 2005 leaves no scope for controversy in this regard. On behalf of the petitioner, much was argued referring to the guidelines given in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. , reported in air 1992 SC 604 . Referring to the said guidelines it was submitted by Mr. Panja that in the present case, there is no such allegation so as to justify allowing of investigation of the case under reference. It was submitted that the allegations in the complaint, even if taken at their face value, do not constitute any prirna facie offence. But the concrete allegations in the said written complaint dated 12. 11. 2005 cannot be brushed aside. The relevant observations of the Hon'ble apex Court in this context may be reporduced as follows:"108. 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 extraordinary power under Article 226 or the inherent powers under section 482 of the code which we have extracted and reproduced 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. Where the allegations made in the First Information Report or the complaint, 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. 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. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. Where the allegations in the FIR do not constitute a congnizable 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. 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. 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. Where a criminal proceeding is manifestly attended with mala fide 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 grudge. " ( 9 ) APPLYING the decision to the facts and circumstances of the present case, it has to be seen as to how far intervention by this Court at this stage in the manner as sought for is justified. ( 10 ) ON behalf of the opposite party/state of West Bengal Mr. " ( 9 ) APPLYING the decision to the facts and circumstances of the present case, it has to be seen as to how far intervention by this Court at this stage in the manner as sought for is justified. ( 10 ) ON behalf of the opposite party/state of West Bengal Mr. Safiullah, learned Public Prosecutor, referred to the decision in the case of State of Orissa vs. Debendra Nath Padhi, reported in 2004 (8) Supreme 568 , in support of his contention that the material sought to be relied upon by the defence cannot be looked into at this stage. Mr. Safiullah added that this Court at this stage can only look into the allegations made in the petition of complaint in order to ascertain whether the said allegations constitute any cognizable offence or not or whether the said allegations suffer from inherent absurdity or latent infirmity. Mr. Safiullah further referred to the decision in the case of Union of India vs. Prakash P. Hinduja and Anr. , reported in 2003 (4) Supreme 466 , in support of his stand that the power under section 482 of the Criminal Procedure Code can only be exercised in the following cases: (1) Where the allegatins made in the FIR or complaint, even if 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 uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where there is an express legal bar engrafted in any of the provisions of code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. ( 11 ) IT seems to be the settled position of law that such power under section 482 of the Code of Criminal Procedure need only be exercised in rarest of the rare cases and with the sole intention to prevent abuse of the process of Court. ( 12 ) IN the present case, the technical points raised on behalf of the petitioner do not seem to have any rational basis at all. The case relates to alleged crime of serious nature having far-reaching consequences. ( 12 ) IN the present case, the technical points raised on behalf of the petitioner do not seem to have any rational basis at all. The case relates to alleged crime of serious nature having far-reaching consequences. It cannot be said, even at the face value of the FIR as well as other materials and without looking into the details of the result of investigation made so far, that the allegations do not constitute any cognizable offence or that the case suffers from any inherent illegality. ( 13 ) CONSIDERING all these aspects I find no merit in the grievance ventilated in the application on behalf of the petitioner. The present application, being c. R. R. No. 3340 of 2005, be dismissed. Interim order, if any, stands vacated. ( 14 ) DEPARTMENT is directed to supply xerox certified copy of this order, if applied for, to the learned Counsel of the parties as expeditiously as possible. Application dimissed.