Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 159 (GAU)

Tilendra Sonowal v. Md. Alauddin Laskar

2011-02-25

A.K.GOSWAMI

body2011
JUDGMENT A.K. Goswami, J. 1. By this application filed under Section 482/401 read with Section 397 CrPC, the Petitioner has prayed for quashing of the proceeding in CR Case No 1125/95 under Section 420/465/468/471/427/34 IPC, pending in the Court of the learned Chief Judicial Magistrate, Hailakandi, as also the order dated 3.8.2001, passed by the learned Chief Judicial Magistrate, taking cognizance of the offence under Sections 419/465/468/34 IPC, so far as it relates to him. 2. The complainant/Respondent had filed a complaint petition before the learned Chief Judicial Magistrate, Hailakandi, alleging, inter alia, that sixteen accused persons named therein with a view to cheat the complainant, had executed 2 sale deeds on 29.8.95 and 4.9.95. The Petitioner, who was the Sub-Registrar at the relevant time, had identified the vendor. It is also stated in the complaint that the said two sale deeds were registered on 4.9.95 being Sale Deed No 1203 and 1204. One more sale deed was shown to have been registered on 4.9.95, executed by one Merajun Bibi, on 6.5.95. This Sale Deed was numbered as 1216 and the stamps of the Sale Deed No. 1216 was purchased on 5.9.95. In this Sale Deed, the complainant himself was shown to be the purchaser of the land. The case of the complainant in the complaint petition is that his mother, namely Moirama Bibi, the alleged vendor of Sale Deed No 1203 and 1204, had never executed or signed or put any thumb impression in the Sale Deed Nos. 1203 and 1204. The Sale Deed Nos. 1203 and 1204 were executed by accused Nos. 12, 13, 14 and 15 of the complaint by impersonation. It was also stated in the complaint petition that no NOC was produced nor any affidavit was sworn though required, in connection with the Sale Deed No 1216 and the present Petitioner had identified Moirama Bibi as personally known to him, although he could not have known her. 3. After examination of the complainant, the learned Chief Judicial Magistrate, Hailakandi, being satisfied, vide order dated 22.9.95 took cognizance of the offence under Sections419/465/468/34 IPC. Subsequently, an application under Section 319 CrPC, was filed by the complainant stating therein that the present Stamp Reporter, i.e., the Petitioner, in conspiracy with the other accused persons had fabricated the forged documents and accordingly, prayed for impleading him as one of the accused persons. Subsequently, an application under Section 319 CrPC, was filed by the complainant stating therein that the present Stamp Reporter, i.e., the Petitioner, in conspiracy with the other accused persons had fabricated the forged documents and accordingly, prayed for impleading him as one of the accused persons. Thereafter, the learned Magistrate being satisfied that the disputed document was alleged to have been executed on 5.9.95 (should have recorded the date as 6.9.95), whereas the Petitioner had got it registered on 4.9.95, prior to the date of execution of the sale deed, proceeded against the Petitioner after taking cognizance of the offence against him under Sections 419/465/468/34 IPC. 4. The Petitioner had filed an application under Section 197 CrPC, before the learned Chief Judicial Magistrate, Hailakandi, contending therein that as he was discharging his official duties, necessary order may be passed to obtain sanction from the appropriate government to prosecute him. Vide order dated 3.8.2001, the learned trial court held that sanction to prosecute the Petitioner under Section 197 Code of Criminal Procedure was necessary and accordingly, directed the complainant to move the Government of Assam to grant sanction against the Petitioner. It was also stated in the said order that the Petitioner was discharging his official duties with reference to the acts alleged against him. However, the complainant had filed a revision petition before the learned Sessions Judge, Hailakandi, challenging the legality and validity of the aforesaid order. The learned Sessions Judge, Hailakandi, after hearing both sides and upon appreciation of the materials on record, vide order dated 19.2.2002, passed in Criminal Motion No 42/2001, set aside the order dated 3.8.2001 passed by the learned Chief Judicial Magistrate, Hailakandi, holding that in the facts and circumstances of the case, no sanction was necessary to prosecute the present Petitioner. 5. I have heard Mr. M Sarania, learned Counsel for the Petitioner and Mr. KA Mazumdar, learned Counsel for the Respondents. 6. Mr. Sarania, learned Counsel for the Petitioner, has submitted that the allegations made in the complaint petition do not make out any case so far as the Petitioner is concerned. It is also submitted that the Petitioner is entitled to protection under Section 197 CrPC. The proceeding against the Petitioner was initiated without obtaining sanction as required under the law and on that count the proceeding against the Petitioner in CR Case No 1125/95 is liable to be quashed. It is also submitted that the Petitioner is entitled to protection under Section 197 CrPC. The proceeding against the Petitioner was initiated without obtaining sanction as required under the law and on that count the proceeding against the Petitioner in CR Case No 1125/95 is liable to be quashed. In support of his argument, the learned Counsel has placed reliance on the decision of the Apex Court in the case of Sankaran Moitra v. Sadhna Das and Anr., reported in (2006) 4 SCC 584 , Rakesh Kumar Misra v. State of Bihar, reported in (2006) 1 SCC 557 and in the case of State of Orissa through Kumar Raghavendra Singh and Ors. v. Ganesh Chandra Jew, reported in (2004) 8 SCC 40 . 7. Mr Mazumdar, learned Counsel for the Respondents, has submitted that on the face of the allegations as made out in the complaint petition, it cannot be said that no case has been made against the Petitioner. The learned Counsel has also relied upon the decision of the Apex Court in the case of Shambhu Nath Misra v. State of UP reported in (1997) 5 SCC 326 : AIR 1997 SC 2102 . 8. Significantly, the order dated 19.2.2002 passed by the learned Sessions Judge, Hailakandi, in Criminal Motion No 42/2001, was not called in question by the Petitioner earlier and the said order dated 19.2.2002 is not the subject matter of the instant revision petition also. As noted above, the present revision petition has been filed to quash the proceeding in CR Case No 1125/95 and the order dated 3.8.01 passed by the learned Chief Judicial Magistrate, Hailakandi, taking cognizance of the offence under Sections 419/465/468/34 IPC. 9. This Court is not required to dwell upon the question as to whether grant of sanction under Section 197 Code of Criminal Procedure is required as the Petitioner has not challenged the order dated 19.2.2002 passed by the learned Sessions Judge, Hailakandi, in Criminal Motion No 42/2001. 10. The judgments cited at the Bar by both the sides are in the context of Section 197 CrPC. In absence of any challenge to the order dated 19.2.2002 passed by the learned Sessions Judge, Hailakandi, holding that no sanction was necessary to prosecute the Petitioner under Section 197CrPC, it is not considered necessary to discuss the law laid down by the Apex Court in the aforesaid judgments. In absence of any challenge to the order dated 19.2.2002 passed by the learned Sessions Judge, Hailakandi, holding that no sanction was necessary to prosecute the Petitioner under Section 197CrPC, it is not considered necessary to discuss the law laid down by the Apex Court in the aforesaid judgments. In absence of any challenge thereto, the Petitioner cannot be heard that the complaint case initiated by the complainant / Respondent is liable to be quashed in absence of any sanction from the appropriate government. 11. The power of the High Court under Section 482 Code of Criminal Procedure to quash a criminal proceeding has been reiterated time and again by the Apex Court. The Apex Court in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) 335, by way of illustration, indicated categories of cases, wherein the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC, can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The Apex Court also opined that 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. The categories of cases indicated are: (1) 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. (2) 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. (3) 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. (4) Where, the allegations in the FIR 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 under Section 155(2) of the Code. (4) Where, the allegations in the FIR 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 under Section 155(2) of the Code. (5) 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. (6) 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. (7) 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. 12. In Maharashtra State Electricity Distribution Company Limited and Anr. v. Datar Switchgear Limited and Ors. reported in (2010) 10 SCC 479 , the Apex Court observed as under: 18. It is well settled that though the inherent powers of the High Court under Section 482 of the Code are very wide in amplitude, yet they are not unlimited. However, it is neither feasible nor desirable to lay down an absolute rule which would govern the exercise of inherent jurisdiction of the Court. Nevertheless, it is trite that powers under the said provision have to be exercised sparingly and with caution to secure the ends of justice and to prevent the abuse of the process of the court. Where the allegations in the first information report or the complaint taken at its face value and accepted in their entirety do not constitute the offence alleged, the High Court would be justified in invoking its powers under Section 482 of the Code to quash the criminal proceedings. (see R.P. Kapur v. State of Punjab 20 and Rupan Deol Bajaj v. Kanwar Pal Singh Gill 21). 13. Now I address to the argument of the learned Counsel for the Petitioner that no case is made out against the Petitioner in the complaint petition so as to proceed against him. (see R.P. Kapur v. State of Punjab 20 and Rupan Deol Bajaj v. Kanwar Pal Singh Gill 21). 13. Now I address to the argument of the learned Counsel for the Petitioner that no case is made out against the Petitioner in the complaint petition so as to proceed against him. A bare perusal of the complaint petition itself would demonstrate that there were allegations against the Petitioner. To determine whether the said allegations are true or false is beyond the scope and ambit of exercise of power under Section 482 CrPC. If the statements made in the complaint petition are taken at its face value and accepted in its entirety, in my opinion, a prima facie case constituting an offence is made out against the Petitioner. There is an allegation that the Petitioner had identified the vendor of Sale Deed Nos. 1203 and 1204 as personally known to him, though the Sub-Registrar could not have known her under any circumstances. The registration of a document as Sale Deed No 1216 on 4.9.95, the stamps for which were purchased on 5.9.95, is another pointed allegation. 14. Though the present Petitioner was not named in the list of accused persons in the complaint petition, the aforesaid allegations, nevertheless, were in the complaint petition. Subsequently, Petitioner was impleaded as one of the accused persons in the case by order dated 3.8.01 passed by the learned trial Court after taking note of the evidence and documents placed before him. No exception can be taken to the course of action adopted by the learned trial Court. It is also evident that the Petitioner had earlier not agitated against the order dated 3.8.01 and, at the first instance, had sought protection under Section 197 Code of Criminal Procedure only. 15. All the sale deeds were registered on 4.9.95 and the present revision petition discloses that the Petitioner was under order of transfer and had handed over the charge of his office to his successor on 4.9.95. 16. I do not find it to be a case where the criminal proceeding has been initiated with malafide or ulterior motive. It is also not a case where the allegations in the complaint petition are so absurd and inherently improbable on the basis of which a prudent person can reach a conclusion that there is sufficient ground for proceeding against the Petitioner. 17. It is also not a case where the allegations in the complaint petition are so absurd and inherently improbable on the basis of which a prudent person can reach a conclusion that there is sufficient ground for proceeding against the Petitioner. 17. For the foregoing reasons, I do not find any merit in this revision petition and, consequently, the revision petition is dismissed. 14. Send down the LC Rs. Petition dismissed.