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Gauhati High Court · body

2010 DIGILAW 479 (GAU)

Subhabrata Das v. State of Assam and Anr.

2010-07-19

P.K.MUSAHARY

body2010
1. Heard Mr. T.C. Khatri, learned senior counsel appearing on behalf of the petitioners. Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor, for respondent No. 1 (State of Assam) and Mr. P. Bora, learned counsel, for respondent No. 2. 2. This application has been presented under section 482 read with section 397/401, Cr.PC, for quashing the criminal proceeding in G.R. Case No. 406/2007 corresponding to Tinsukia P.S. Case No. 190/07 under section 120(B)/420/406, IPC, which is pending before the court of learned Additional Chief Judicial Magistrate, Tinsukia. In the aforesaid case, the investigating agency has completed the investigation and submitted charge sheet on 31.10.2007 against the present petitioner only while discharging the other two accused persons named in the FIR. 3. Mr. Khatri, learned senior counsel, submits that in the FIR, allegation was made against the petitioner that on 17.4.2007, he along with his associates Sri Suman Banik and Mukesh Mishra, representing themselves as official representatives of M/s. Libra Enterprise assured the informant that their company would advance loan against mortgage of land and took an amount of Rs. 6,90,000, from the informant as processing and documentation fees and later on; he came to know that the said financial agency has no existence and, thus, the petitioner and his associates had cheated the informant and misappropriated the money. But in the charge sheet, under column No. 7, it is mentioned that the complainant had given the mortgage of land. If it is so, according to Mr. Khatri, the complainant himself had given the land in mortgage and no case has been made out under section 120(B)/420/406, IPC and no charge can be framed under the aforesaid sections against the present accused petitioner. It would be abuse of process of law if the charge is framed and proceed against the petitioner. The aforesaid proceeding, is, therefore, liable to be quashed. 4. Placing the decision in Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., (1998) 5 SCC 749 , Mr. Khatri, learned senior counsel, submits that the High Court has wide power under section 482, Cr.PC, to discharge the accused at the stage of framing charge and there is no bar in exercising the said power even if there is a remedy for the accused by way of appeal and revision. Khatri, learned senior counsel, submits that the High Court has wide power under section 482, Cr.PC, to discharge the accused at the stage of framing charge and there is no bar in exercising the said power even if there is a remedy for the accused by way of appeal and revision. He further submits that following the above decision of the Apex Court, this court in Ravi Jhunjhunwala and Anr. v. Kumar Mishra and Anr., 2009 (1) GLT 609, held that the High Court can not suo motu put its hands into shackles and close its eyes to allow perpetuation of apparent injustice and abuse of law. 5. Mr. Bora, learned counsel for respondent No. 2, on the other hand, submits that the learned trial court is yet to consider the charge and the petitioner would get the chance to make his submission at the time of consideration of charge for which the learned court below shall fix a date for the same after providing the copy of all the documents and police report(s) prepared by the prosecution and to be used against the accused-petitioner. At this stage, according to Mr. Bora, this court may not like to pass any order preventing the trial court from consideration of charge and thereby quashing the criminal proceeding pending against the accused-petitioner inasmuch as the allegations made in the FIR and the charge sheet so filed by the police prima facie disclose commission of offence under section 120(13)7420/406, IPC. In support of his contention, he relies on the decisions rendered in Central Bureau of Investigation v. KM. Sharon, (2008) 4 SCC 471 and Dr. Monica Kumar and Anr. v. State of Uttar Pradesh and Ors., (2008) 8 SCC 781 . 6. It is an accepted position that High Court has wide power under section 482, Cr.PC but there are certain matters, which can be examined only by the trial court concerned after the entire material is produced before it on thorough investigation and evidence is led. In the present case, whether there is any misrepresentation by the petitioner is to be proved by the evidence adduced by the party. That stage has not come and it can be examined during trial. In the present case, whether there is any misrepresentation by the petitioner is to be proved by the evidence adduced by the party. That stage has not come and it can be examined during trial. The concern of the court, at this stage, is to find out as to whether the allegation in the FIR and other materials accompanying the FIR have disclosed a cognizable offence and prima facie charge has been found on the basis of the police report. 7. In the KM Sharma (supra), it is held that the scope of power under section 482 Cr.PC is not supposed to embark upon the enquiry whether the allegation in FIR and the charge sheet were reliable or not and thereupon, to render definite finding about truthfulness or veracity of the allegations. It is also held that it would not be appropriate to comment or express any opinion on the truthfulness or veracity of the allegations incorporated in the FIR or the charge sheet and it would not be justified in quashing the FIR/charge sheet while exercising its extraordinary jurisdiction under section 482, Cr.PC to stifle a legitimate prosecution. 8. Added to this, it should be noted that in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, a note of caution has been given to the effect that the power under section 482, Cr.PC should be exercised sparingly and with circumspection and that too, in the rarest of rare cases. 9. Having considered this instant case in the light of the aforesaid decisions, I could not persuade myself to quash the criminal proceeding as demanded by the petitioner at this stage more particularly as it is found prima facie that the investigating agency has collected necessary materials sufficient to frame the charge against the petitioner and the same would be considered by the learned trial court providing opportunity of hearing to both the parties. 10. In view of the above, this petition stands rejected. However, considering the facts and circumstances of the case and in the interest of expeditious hearing, it is directed that the learned trial court shall furnish the copies of the documents, police reports, etc., to the accused-petitioner as required under section 208, Cr.PC for consideration of charges and proceed in accordance with law, within a period of thirty days from today.