Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 833 (ORI)

PRAMOD CHANDRA RATH v. STATE OF ORISSA

2007-10-31

A.K.SAMANTARAY

body2007
JUDGMENT : A.K. Samantaray, J. - By means of this petition u/s 482, Code of Criminal Procedure, the Petitioner has assailed the order of cognizance dated 28.6.2006 passed by the Learned S.D.J.M., Bhubaneswar in G.R. Case No. 684 of 2003 corresponding to Kharavelanagar P.S. Case No. 47 of 2003 under Sections 506/336/109/34 of the Indian Penal Code and u/s 9(b) of the Indian Explosives Act and has prayed for quashing of the said order of cognizance as against him. 2. The factual scenario leading to the entanglement of this Petitioner in the aforementioned case is produced hereunder. 3. The O.P. No. 2 to this Crl. Misc. Case, Sri Tusar Mishra lodged FIR on 20.2.2003 at 11.30 P.M. before the I.I.C., Kharavelanagar Police Station alleging that in the same evening at about 9.45 P.M. while he was absent from his residence at Plot No. 13, Satyanagar, Bhubaneswar, he was informed over phone that there was bomb blast at his residence and the miscreants had hurled four bombs aiming at his residence out of which three had exploded and the other one was lying unexploded in the front portion of his residence and by the said incident the left side front glass of his vehicle parked was damaged and the explosion had also caused damage to some of the plants. In the said FIR, the Informant entertained apprehension that the blast might have taken place on account of some forthcoming tenders for the National Highway Work. It was further stated in the FIR that the informant had received phone call in his cell phone from one Anil Chhotaray at about 3.30 P.M. on 9.2.2003 and the said Anil Chhotaray wanted to know from him some information about which the informant was unaware. Again on 18.2.2003 afternoon he received another phone call from said Anil Chhotaray, who was asking him for his co-operation in connection with two National Highway tenders. The said Anil Chhotaray also complained to him about his non-co-operation in another tender matter for construction of a bridge over river Kharnasi near Kendrapara and also wanted the informant to process his tender papers through them so that they would be in a position to decide as to who would be the successful bidder. The said Anil Chhotaray also complained to him about his non-co-operation in another tender matter for construction of a bridge over river Kharnasi near Kendrapara and also wanted the informant to process his tender papers through them so that they would be in a position to decide as to who would be the successful bidder. It is stated in the FIR that the proposal made by the said Anil Chhotaray was tainted to threat and since he did not accede to the same he received again a phone call from one Ankush, who claimed to be the associate of Anil Chhotaray, and he reiterated the same proposal to which the informant refused. In the FIR, it is stated that in the above background the incident that occurred was meant to frighten him and the members of his family and since the family members were panicked, he lodged the FIR. 4. On receipt of the FIR, Kharavelanagar P.S. Case No. 47 of 2003 was registered implicating the accused persons u/s 506/34 of the Indian Penal Code and u/s 9(b) of the Indian Explosives Act and the present Petitioner was not an accused in the said P.S. case. After registering the case, Kharavelanagar Police took up investigation and recorded statement of witnesses u/s 161 of the Code of Criminal Procedure and after completion of investigation after about two and a half years, final form was submitted on 19.9.2005 by Charge Sheet No. 245/2005 implicating Anil Chhotaray, Tuna ' Trailakyanath Giri, Sukuna ' Sukanta Kumar Behera and Ankush ' Raju ' Raju Panda ' Manoranjan Panda for the offence under Sections 506/336/34 of the Indian Penal Code and u/s 9(b) of the Indian Explosives Act. Even after two and a half years of investigation the Police did not find any clue as to the involvement of any other person in the said incident. (and as such, the Petitioner was not chargesheeted) While submitting chargesheet, the Investigating Officer made a prayer to the Learned S.D.J.M., Bhubaneswar u/s 173(8) of the Code of Criminal Procedure to keep the investigation open and the said prayer was acceded to by the Learned Magistrate. 5. While investigation of the Kharavelanagar P.S. Case No. 47 of 2003 was kept open the Petitioner and some other super class contractors were arrested in connection with Nayapalli P.S. Case No. 115 of 2005 and the Petitioner was taken to custody. 5. While investigation of the Kharavelanagar P.S. Case No. 47 of 2003 was kept open the Petitioner and some other super class contractors were arrested in connection with Nayapalli P.S. Case No. 115 of 2005 and the Petitioner was taken to custody. After his arrest, he moved this Court for bail and this Court allowed the Petitioner to go on interim bail for a period of 8 weeks as because his wife was undergoing treatment at Tata Memorial Cancer Hospital, Mumbai and the said order of this Court was passed on 20.2.2006. The Nayapalli P.S. Case No. 115 of 2005 was being investigated by an Inspector of the Crime Branch and while investigating the aforementioned Nayapalli P.S. Case he took charge of the investigation of Kharavelanagar P.S. Case No. 47 of 2003 on 13.9.2005. When the Petitioner was about to be released on interim bail by order of this Court on humanitarian ground to attend to his ailing wife at Tata Memorial Cancer Hospital, Mumbai, where she was undergoing treatment and was about to furnish bail bond for his release, the Crime Branch Inspector filed an application before the Court of S.D.J.M., Bhubaneswar to take the Petitioner to custody in connection with Kharavelanagar P.S. Case No. 47 of 2003, which resulted in his further detention in the custody and also thwarted the bail order passed by this Court in favour of the Petitioner. 6. The Petitioner, while was in custody in connection with Nayapalli P.S. Case No. 115 of 2005, his statement u/s 161, Code of Criminal Procedure was recorded in relation to Kharavelanagar PS Case No. 47 of 2003 on 15.9.2005, after which the charge sheet was submitted on 19.9.2005 and in the said charge sheet the name of the Petitioner did not appear. 7. After submission of the charge sheet on 19.9.2005, there was no further material collected by the I.O. against this Petitioner so as to entangle him in the alleged offences in connection with Kharavelanagar PS Case No. 47/2003. 7. After submission of the charge sheet on 19.9.2005, there was no further material collected by the I.O. against this Petitioner so as to entangle him in the alleged offences in connection with Kharavelanagar PS Case No. 47/2003. But on 28.6.2006 a supplementary charge sheet No. 90/2006 was submitted by the I.O. on the face of the fact that after 19.9.2005 no further material was collected as against this Petitioner and in a routine manner implicating the Petitioner in the said PS Case No. 47/2003 the charge sheet was submitted and Learned SDJM, Bhubaneswar took cognizance of the offences u/s 506/336/109/34, Indian Penal Code and u/s 9(b) of the Indian Explosives Act by the impugned Order Dated 28.6.2006. 8. During the course of arguments, it was vehemently urged by the Learned Counsel for the Petitioner that the Petitioner has been intentionally implicated in this supplementary charge sheet and the order of cognizance dated 28.6.2006 passed by the Learned SDJM, Bhubaneswar in the corresponding GR Case is thoroughly without any application of mind and as such, this is a fit case where this Court should invoke its inherent jurisdiction u/s 482 of the Code of Criminal Procedure to quash the said order of cognizance in the interest of justice to save the Petitioner from unnecessary and unwarranted harassment and to prevent the abuse of process of Court. The Learned Counsel submitted that there is absolutely no whisper in the FIR or in the recorded statement of the witnesses, namely, Duryodhan Behera, Prashanta Kumar Pani, the informant, Tushar Mishra (OP No. 2), Dipti Ranjan Sahoo, Krishna Kumar Agarwal, Jaydev Das, GK Samal and Ashok Kumar Jalan implicating the Petitioner in the incident of hurling of bomb on 20.2.2005 at 9.45 PM. He submitted that for the said reason although so many witnesses were examined by the earlier I.O. the Inspector of Kharavelanagar PS and subsequently the investigation being taken over by the Crime Branch I.O., who was investigating Nayapalli PS Case No. 115/2005 found no material to implicate the Petitioner in the said Kharavelanagar PS Case and the Crime Branch I.O. submitted the charge sheet on 19.9.2005 wherein, the Petitioner was not shown as an accused. The Learned Counsel for the Petitioner cited the decision reported in State of Haryana and others Vs. Ch. The Learned Counsel for the Petitioner cited the decision reported in State of Haryana and others Vs. Ch. Bhajan Lal and others wherein, the Hon'ble Apex Court have indicated the categories of cases where the High Court may exercise powers under Article 226 or u/s 482 of the Code of Criminal Procedure and interfere in the proceedings relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice. The Hon'ble Apex Court however, has cautioned that power should be exercised sparingly and that too in the rarest of the rare case. The categories of cases where this power can be exercised have been enumerated as under: i) 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. ii) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying and investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. iii) 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. iv) Where, the allegations in the F.I.R. 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 u/s 155(2) of the Code. v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which on prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. vi) 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 continuances 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. vi) 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 continuances 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. vii) 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. The Hon'ble Apex Court, ultimately held that where allegations in the complaint did constitute a cognizable offence justifying registration of a case and Investigation thereon and did not fall in any of the categories of the cases enumerated above, calling for exercise of extraordinary powers or inherent powers quashing of FIR was not justified. 9. The Learned Counsel cited another decision, reported in Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, wherein, the judgment in Bhajanlal's case (supra) was pressed into service and the Hon'ble Apex Court, while upholding the guidelines laid down in Bhajanlal's case held that judicial process should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take relevant facts and circumstances into consideration before issuing process, less it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. It was also held that the authority of the Court exists for advancement of justice and if any attempts is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of process of Court or quashing of these proceedings would otherwise serve the ends of justice. While no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in to. While no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in to. The Hon'ble Apex Court further held that of course, no hard-and-first rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. In a proceeding instituted on complaint, exercise of inherent powers to quash the proceeding is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. In the said judgment the Hon'ble Apex Court also held as follows: The factual position clearly shows that the complaint was nothing but a sheer abuse of process of law and this is the case where the power u/s 482 should have been exercised. The High Court unfortunately did not take note of the guiding principles as laid down in Bhajanlal's case (supra), thereby rendering the judgment indefensible. The judgment of the High Court is set aside. The proceedings initiated by the complaint lodged are quashed. 10. Learned Counsel for the Petitioner referred to the decision reported in Indian Oil Corporation Vs. NEPC India Ltd. and Others, and in the said judgment the principle laid down in Bhajan Lal's Case supra) was also followed and while doing so the Hon'ble Apex Court considered five relevant guidelines two of which are quoted hereunder: (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining the prayer for quashing of a complaint. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining the prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with malafide/malice for wrecking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. 11. The Learned Counsel cited another decision reported in JT 2007 (9) SC 326, Manjula Sinha v. State of U.P. and Ors. wherein, a case u/s 498A and 406, Indian Penal Code where the inherent power u/s 482, Code of Criminal Procedure of the High Court was pressed into service, the Hon'ble Apex Court observed as under: Section 482 Code of Criminal Procedure does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances, under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, express provision of law, which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. xxx xxx xxx 12. Basing on the aforesaid citations, Learned Counsel for the Petitioner submitted that the reading of the aforesaid guidelines set forth by the Hon'ble Apex Court goes to show that the High Court while exercising jurisdiction u/s 482 of the Code of Criminal Procedure can verify the allegations in the FIR and in a given situation the materials available on record. Basing on the aforesaid citations, Learned Counsel for the Petitioner submitted that the reading of the aforesaid guidelines set forth by the Hon'ble Apex Court goes to show that the High Court while exercising jurisdiction u/s 482 of the Code of Criminal Procedure can verify the allegations in the FIR and in a given situation the materials available on record. He submitted further if on reading of the FI R or the complaint and scrutiny of the recorded statements of the witnesses, the materials do not make out a case for implicating a particular individual so as to chargesheet him this Court can invoke and exercise its inherent power u/s 482 of the Code of Criminal Procedure and may quash the FIR/proceeding, as well. 13. The Hon'ble Apex Court's guideline clearly mandates that where the allegations made in the FIR/complaint, if any, are taken at their face value and accepted in their entirety do not prima facie constitute any offence and make out a case against the accused, the High Court should not shirk to exercise its inherent power u/s 482 of the Code of Criminal Procedure 14. The Learned Addl. Government Advocate appearing for the State contended that although while chargesheet was submitted by the same I.O. (Inspect of Crime Branch) on 19.9.2005 after taking over charge of the investigation from the I.I.C., Kharavelanagar PS on 13.9.2005 in connection with Kharavelanagar PS Case No. 47/2003 and recording of the statement of one Krishna Kumar Agarwal on the very same day and the statements of Jaydev Das and G.K. Samal on 14.9.2005 and one Ashok Kumar Jalan on 15.9.2005, due to oversight he did not name the Petitioner in the chargesheet. The Learned Addl. Government Advocate produced for my perusal the CD and on a bare glace at the same it is found that statement of witness Ashok Kumar Jalan was not recorded in connection with Kharavelanagar PS Case No. 47/2003 u/s 506/34, Indian Penal Code and 9(b) of I.E. Act but it was recorded in relation to Nayapalli PS Case No. 115/2005 u/s 302/34, Indian Penal Code and Sections 25 & 27 of the Arms Act. It also appears that the PS case number and Section of the Indian Penal Code and the other Act have been scoured through and Kharavelanagar PS Case No. 47/2003 and offence u/s 506/34 and 9(b) of the I.E. Act has been incorporated. It also appears that the PS case number and Section of the Indian Penal Code and the other Act have been scoured through and Kharavelanagar PS Case No. 47/2003 and offence u/s 506/34 and 9(b) of the I.E. Act has been incorporated. The Learned Addl. Government Advocate harped on the statement of Krishna Kumar Agarwal recorded by the said I.O. of the Crime Branch and tried to canvass that his evidence implicates this Petitioner as an abettor and instigator of the offences registered in the Kharavelanagar PS Case No. 47/2003. I have carefully scrutinized the said statement to ascertain the force behind such submission and I find that there is absolutely no whisper or expectation to even conceive that the Petitioner had hand in the scheming of the alleged incident. There is nothing to show that he had played even a passive role in the perpetration of the alleged offence, rather it goes to show that as because the I.O. did not find anything against this Petitioner even after examination of the witnesses named above on different dates prior to his submission of chargesheet on 19.9.2005 the Petitioner was not cited an accused. The Learned Addl. Government Advocate further argued that since the Petitioner had got the tender in respect of the work of improvement of riding quality of the stretch from 138.0 to 171.0 Km. of NH-215, the I.O. might have thought that the Petitioner got the same through the said Anil Chhotray who was earlier chargesheeted in the Kharavelanagar PS Case No. 47/2003 and as such, he has subsequently in the supplementary chargesheet named him as an accused. This submission of the Learned Addl. Government Advocate is based on supposition and not backed by any material on record and this does not establish the nexus between the incident at the residence of O.P. No. 2 and the Petitioner in any manner whatsoever nor does it lead to believe that the Petitioner had nexus with the already chargesheeted accused persons like Anil Chhotray in that connection. This submission rather appears to be ridiculous one and can in no stretch of imagination be the basis for implicating this Petitioner in the aforementioned PS Case. 15. This submission rather appears to be ridiculous one and can in no stretch of imagination be the basis for implicating this Petitioner in the aforementioned PS Case. 15. I would not hesitate to comment here at this stage that the subsequent implication of the Petitioner by filing an additional/supplementary chargesheet on 28.6.2006 after an absurd extension of the so called investigation exposes the concocted lies and outrageous inventions to which the I.O. has resorted to some how bring this Petitioner within the purview of the aforementioned Kharavelanagar PS Case. The Learned SDJM, Bhubaneswar has equally acted in a mechanical manner and on the basis of the said supplementary chargesheet has passed the impugned order and has decided to proceed against the Petitioner which on the face of my discussions in the preceding paragraphs is nothing but sheer abuse of process of Court. 16. This is a glaring instance where even if the allegations against the Petitioner are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out any case alleged against him for which I have not the slightest hesitation to quash the order of cognizance dated 28.6.2006 of the Learned SDJM, Bhubaneswar in GR Case No. 684/2003 corresponding to Kharavelanagar PS Case No. 47/2003 as against this accused/Petitioner only which I direct. 17. The Crl. MC is allowed accordingly. Crl. Misc Case allowed