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2008 DIGILAW 146 (JHR)

Janeshwar Ram v. State of Jharkhand

2008-02-12

D.G.R.PATNAIK

body2008
Order In the instant writ application, petitioner has prayed for quashing the FIR registered as Bhawanathpur P.S. Case No. 70 of 2005 corresponding to G.R. No. 549 of 2005 for the offences under sections 406 and 409 of the IPC, as well as the entire criminal prosecution pending in the court of Chief Judicial Magistrate, Garhwa. 2. Questions of law as raised by the petitioner in this writ application are, 1. Whether allegations made in the FIR even if taken at its face value, does constitute any offence? 2. Whether the present criminal prosecution is an abuse of the process of the court? 3. Whether the informant has any authority/jurisdiction to lodge the FIR against the petitioner? 4. Whether in absence of any sanction, present prosecution can be sustained in the eye of law? 3. Facts of the case in brief is that on the basis of the FIR lodged by one Manmati Devi, a case vide Bhawanathpur P.S. Case No. 23 of 2005 dated 11.3.2005 was registered for the offences under Section 394 of the IPC against unknown accused. Allegation in the FIR was that some unknown persons had intruded into the house of the informant and forcibly looted away a sum of Rs.2.00 lakhs which was kept in the house on being entrusted to her by her known acquaintance. The case was investigated by the police officer and on concluding the investigation, he submitted final report stating that the case was not true. However, while submitting the final report, the Investigating Officer proceeded to record an FIR on the basis of his self statement against the present petitioner on the allegation that the present petitioner with the connivance of the lady, Manmati Devi, who was the informant of the former case, has misappropriated Government money belonging to the Road Construction Department which was entrusted to one of the accused persons. On the basis of the aforesaid self statement, FIR bearing Bhawanathpur P.S. Case No. 70 of 2005 was registered. It is this FIR which is under challenge. 3. Shri Dilip Kumar Prasad, learned counsel appearing for the petitioner, submits that the FIR was lodged entirely on suspicion and even on going through the entire recitals in the FIR, there appears no definite and reasonable basis even for the suspicion entertained by the informant police officer. It is this FIR which is under challenge. 3. Shri Dilip Kumar Prasad, learned counsel appearing for the petitioner, submits that the FIR was lodged entirely on suspicion and even on going through the entire recitals in the FIR, there appears no definite and reasonable basis even for the suspicion entertained by the informant police officer. Learned counsel explains further that the FIR has been drawn by the police officer purportedly on the basis of some information which he had collected in course of investigation of the earlier case and is based more on presumption than on any definite material either to indicate that any Government money was in fact involved or that such money was in fact entrusted to any of the accused persons at all. Learned counsel argues that the essential ingredients of Sections 406 and 409 of the IPC are conspicuously lacking in the FIR. Learned counsel adds further that even otherwise, admittedly the petitioner herein is a public servant and no prosecution could be launched against him without prior sanction under Section 197 of the Cr. PC. Upon these grounds, learned counsel insists that the continuation of the criminal proceeding on the basis of the impugned FIR amounts to an abuse of the process of the court. 4. Counsel for the State, on the other hand, while controverting the grounds advanced by the petitioner, would argue that the grounds are totally misconceived and as a matter of fact, the case is still under investigation and the truth into the allegations in the FIR can be ascertained only on investigation and the FIR cannot be quashed since it does indicate prima facie offence under Sections 406 and 409 of the IPC. 5. For better appreciation of the rival arguments, reference to the allegation in the earlier FIR filed by Manmati Devi which was registered as Bhawanathpur P.S. Case No. 23 of 2005, needs to be made. The FIR states that one Arun Baitha, who was her known acquaintance, had visited her house along with his friend Ashok and stayed in her house for a couple of days and before leaving, they had entrusted a sum of Rs.2.00 lakhs to her for safe custody. On the alleged night of occurrence, some unknown persons visited her house, forced their entry into their house and looted away the money. On the alleged night of occurrence, some unknown persons visited her house, forced their entry into their house and looted away the money. The FIR does not suggest anywhere that the money alleged to have been stolen away, was Government money. It further appears that in course of investigation, the police officer had come to know that Arun Baitha, the person referred to by the informant lady as her known acquaintance, was in fact a contractor who was entrusted with the job of road construction by the Road Construction Department of the Government. The police officer thereafter proceeded to infer that the money was probably entrusted by the Road Construction Department to the said contractor for executing the road construction work and instead of utilizing the sum for the work for which it was entrusted, the said contractor in connivance with the lady and her husband, have misappropriated the money. 6. In the case of State of W.B. vs. Swapan Kumar Guha reported in AIR 1962 SC 1559 , the Supreme Court while explaining the term "reason to suspect The commission of offence" as contained in Section 157(1) of the Cr.P.C., has observed as follows:- "The condition precedent to the commencement of investigation under Section 157(1) of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR, prima facie, discloses the commission of such offence." It would be manifest therefore that section postulates that the police officer has to draw its satisfaction only on the materials which are placed before him at that stage namely the first information together with the documents, if any, enclosed. 7. In the instant case, the impugned FIR does not indicate that any information was received by the informant that a• sum of Rs.2.00 lakhs was in fact entrusted to any of the accused persons by the Road Construction Department and neither has any competent person from the Road Construction Department lodged any complaint of any misappropriation of Government money by the• petitioner. The allegations as levelled in the impugned FIR by the police officer are based entirely on his suspicion and presumption. Admittedly, the basic ingredients of entrustment and misappropriation, as contained under Sections 406 and 409 of the IPC, are essentially lacking and in absence thereof, no case can reasonably be made out either of the offences even on reading the entire FIR. The FIR does not indicate any reasonable basis of commission of any cognizable offence. As rightly pointed out by the learned counsel for the petitioner, if the investigation into the earlier case lodged by the lady had suggested that the FIR was false, then the investigating officer could at best have submitted his final report recommending trial of the informant thereof for the offences under sections 182/211 of the IPC. 8. In the light of the above discussions, I find merit in this application. This writ application is accordingly allowed. The FIR vide Bhawanathpur P.S. Case No. 70 of 2005 corresponding to G.R. No. 549 of 2005 including the entire criminal prosecution pending in the court of Chief Judicial Magistrate, Garhwa, is hereby quashed.