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2010 DIGILAW 102 (GAU)

Laxmikant Fulfagar v. State of Assam

2010-02-11

H.N.SARMA

body2010
JUDGMENT H.N. Sarma, J. 1. By this criminal petition the petitioner has approached this Court praying for quashing the FIR dated 17.9.2009 filed by the respondent No. 2 with the O/C, Nagaon Police Station whereupon Nagaon PS Case No. 1320/09 under Sections 406/420, IPC has been registered. 2. Heard Mr. K.R. Surana, learned Counsel for the petitioner and Mr. AH Khandakar, learned Counsel appearing for the respondent No. 2 and Mr. B. Gogoi, learned Addl. PP for the State. 3. The learned Counsel for the petitioner submits that on earlier occasion the petitioner filed a complaint petition before the learned CJM, Nagaon on some facts as alleged in the FIR which was registered and numbered as CR Case No. 3554/09. The aforesaid complaint case was made over upon the learned Addl. CJM for disposal vide order dated 16.6.2009. On 17.9.2009 on the prayer of the complainant, the aforesaid complaint case was allowed to be withdrawn and the case was dismissed on withdrawal. The ground for withdrawal was that the parties are ready for negotiation of the dispute. However, on the same date i.e. 17.9.2009 the aforesaid FIR was lodged with the Nagaon Police Station on the same facts as alleged in the complaint petition. In the said FIR there is no statement as regards any compromise or any attempt for compromise of the dispute between the parties. Upon receipt of the FIR the I.O. started the investigation of the case and in the process the accused/petitioner was arrested at Kolkata and on being produced the accused petitioner was allowed to go on transit bail by the learned Magistrate at Kolkata vide order dated 19.9.2009, directing him to appear before the criminal Court at Nagaon by 8.10.2009. Thereafter, the accused appeared before the Court on 12.10.2009 on which date he was allowed to go on interim bail of Rs. 10,000/- fixing 28.10.2009 by the Addl. CJM, Nagaon. On 28.10.2009 the petitioner personally appeared but the learned CJM adjourned the case till 3.11.2009, upon calling for the case diary. In the meantime, the petitioner having approached this Court by filing this criminal petition, this Court vide interim order dated 30.10.2009 protected the petitioner to the effect that the petitioner need not appear before the learned CJM, Nagaon till the returnable date, which was further extended by subsequent order. 4. Referring to the averments made in the complaint as well as the FIR. 4. Referring to the averments made in the complaint as well as the FIR. It is submitted by Mr. Surana that the allegation in the complaint as well as in the FIR are same and identical and the complaint case having been dismissed on withdrawal on the ground of negotiation, it can safely held that the matter has been compromised between the parties out of the Court and accordingly the subsequent FIR lodged by the complainant has no legs to stand and requires to be quashed. Learned Counsel further submits that the allegation levelled in the FIR discloses that the nature of the case is of civil nature and the dispute being of civil nature, no criminal case is made out and the same be quashed. Learned Counsel also pressed into sendee a letter dated 5.10.2009 allegedly filed by the complainant before the I.O. of the case in the aforesaid PS Case stating that the matter has been compromised between the parties and the informant does not want to proceed with the case against the accused, but the I.O. has not taken cognizance of the said fact and illegally proceeding with the investigation. Finally, learned Counsel submits that in view of the above the FIR is liable to be quashed it being the abuse of the process of law, more particularly when the major part of the cause of action arose at Kolkata. 5. Per contra, Mr. Khandakar, learned Counsel appearing for the respondent No. 2 submits that the earlier complaint was withdrawn on the hope of compromise between the parties at the instance of some well-wishers but the same not having been effected, the petitioner has no alternative but to lodge the FIR again with the police and the complainant has got some right under Section 154 of the Code of Criminal Procedure. It is further contended that the allegation made in the FIR clearly discloses cognizable offences against the petitioner and accordingly the case was registered under Sections 406/420, IPC and started the investigation of the case. Although there was a talk of compromise at the initiation of certain businessman but the case has not been compromised as yet between the parties. It is further submitted that after withdrawal of the complaint filed before the Court, there is no bar in filing the present FIR before the police. Although there was a talk of compromise at the initiation of certain businessman but the case has not been compromised as yet between the parties. It is further submitted that after withdrawal of the complaint filed before the Court, there is no bar in filing the present FIR before the police. Learned Counsel further submits that though the petitioner was granted transit bail by the Court at Kolkata to appear before the Court at Nagaon on or before 8.10.2009 the petitioner on the plea one or the other did not appear and finally such appearance was made only 12.10.2009 personally before the learned Addl. CJM, Nagaon who granted interim bail till 28.10.2009. Referring to the letter dated 5.10.2009 learned Counsel submits that in the letter itself it is submitted that the matter has been "almost settled" but it has not been finally settled as yet. On such facts, it is submitted that the present petition is a frivolous one without any merit and is liable to be dismissed. 6. I have considered the rival submissions made by the learned Counsel. 7. From the materials available on record as well as upon consideration of the submission made by the learned Counsel for the appearing parties it is absolutely clear that the complaint Case No. 3554/09 was not dismissed on merit but it was dismissed on withdrawal even before taking cognizance of the case and the ground for such withdrawal of the case was to facilitate the parties to settle the dispute outside the Court. Reading of the allegation made in the FIR as a whole it cannot be said that the authority acted illegally or without jurisdiction in registering the case inasmuch as the statement made in the FIR discloses cognizable offence and the earlier complaint case was allowed to be withdrawn before taking cognizance and application of any judicial mind on the allegation so made. 8. The Apex Court in the case of R.P. Kapoor v. State of Punjab reported in 1960 SC 866 has laid down the basic principle for quashing the case ruling that accepting the allegation levelled against the accused in the FIR to be true and correct and prima facie no case is made out such case can be quashed. 8. The Apex Court in the case of R.P. Kapoor v. State of Punjab reported in 1960 SC 866 has laid down the basic principle for quashing the case ruling that accepting the allegation levelled against the accused in the FIR to be true and correct and prima facie no case is made out such case can be quashed. The power under Section 482, Code of Criminal Procedure for quashing the FIR is to be exercised vary sparingly and be exercised in rarest of the rare case as decided by the Apex Court in the case reported in 2003 (2) SCC 251 (M. Narayan Das v. State of Karnataka). Reiterating the earlier decision the Apex Court in the case of Bhajanlal reported in 1992 (1) SUPP SCC 335 (State of Haryana v. Bhajanlal has laid down certain tests, though those are not exhaustive but illustrative with regard to the submission the averments made in the FIR discloses a civil dispute transaction between the parties, it is suffice to mention that on the similar facts there may arise civil liability as well as criminal liability and accordingly the same cannot be a ground for quashing of an FIR. In this regard we may refer the decision of the Apex Court reported in 1985 (2) SCC 370 and 2002 (1) SCC 555 (K. Devi Agarwal v. State of West Bengal and 2002 (9) SCC 581 (Vitoori Pradip Kumar v. Kaisula Dharmaiah). The ratio of the decision of the Apex Court reported in 2004 (12) SCC 195 : 2004(1) SCC 525 : 2004 (8) SCC 40 are also applicable in this case. On such considerations I am not inclined to accept the submission of the learned Counsel to the effect that the FIR is liable to be quashed in exercise of provision of Section482, Code of Criminal Procedure. 9. Since the case is under investigation by the Police I am not inclined to interfere with the said investigation by any judicial order and the I.O. after completion of the investigation proceed to act in terms of Section 173, Code of Criminal Procedure. 10. At this stage, Mr. Surana, learned Counsel submits that the petitioner though personally appeared before the learned criminal Court at Nagaon in connection with the aforesaid case on 12.10.2009 the learned Addl. 10. At this stage, Mr. Surana, learned Counsel submits that the petitioner though personally appeared before the learned criminal Court at Nagaon in connection with the aforesaid case on 12.10.2009 the learned Addl. CJM granted interim bail to the petitioner fixing 28.10.2009, calling the connected case diary and directed to appear on that date. The case diary not having been produced on that date, the case was again fixed on 3.11.2009. Thereafter the petitioner got interim protection granted by the High Court. Learned Counsel submits that the petitioner being a resident of Kolkata it is difficult for him to appear on each and every date fixed by the Court within short span of time and prays for certain protection in this regard. 11. Mr. Gogoi, learned Addl. P.P. submits that although the FIR was lodged on 17.9.2009 the I.O. has not yet been able to complete the investigation of the case till date although under Section167, Code of Criminal Procedure such investigation is to be completed within a period of sixty days. 12. The petitioner, appearing in the Court of learned CJM on 12.10.2009 has furnished necessary bail bond and the cash amount for the bail as ordered by the learned Addl. CJM, and the investigation of the case not yet been completed. Considering this aspect of the matter it is directed that the petitioner shall appear before the learned Addl. CJM on or before 10.3.2009 and on such appearance, the learned Addl. CJM who passed the ad-interim order of bail on 12.10.2009, if necessary the petitioner shall furnish bail bond etc. as directed and the learned Court shall favourably consider for extension of the bail of the petitioner till the investigation of the case is completed. 13. For the aforesaid period, earlier interim order allowing the petitioner to go on interim bail shall continue. The I.O. is directed to complete the investigation without unnecessary delay and also make necessary investigation to the effect whether the matter has been compromised between the parties or not, in the meantime, after completion of the investigation shall file the necessary papers before the Court under Section 173, Code of Criminal Procedure. 14. With this order, this criminal petition stands disposed of. Petition allowed.