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2012 DIGILAW 11 (GAU)

Phulu Goswami v. State of Assam

2012-01-04

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. With the help of this application, made under Section 482, Cr PC, the petitioner, who is one of the accused in G.R. Case No. 178 of 2004, has sought to get set aside and quashed the order dated 16.08.2010, which has been passed in the case (aforementioned, by the learned Sub-Divisional Judicial Magistrate (II), Kamrup, Guwahati, whereby the learned Sub-Divisional Judicial Magistrate (II), Kamrup, Guwahati, has not accepted the final report submitted by the police under Section 173, Cr PC and taken cognizance of offences, under Sections 406/420/414/411/1207B, IPC, against the petitioner and three others as accused. I have heard Mr. A.M. Bora, learned counsel for the petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam, appearing on behalf of the State-opposite party No. 1. I have also heard Mr. P.J. Phukan, learned counsel for the informant-opposite party No. 2. 2. Before coming to the sustainability and merit of the present criminal petition, let me set out, the material facts, which have given rise to the present criminal petition. The facts are, in brief, as under : (i) A literally contest, in the name of (Search for Excellence', was jointly held by an organization, called 'Garioshi', Assam, and 'khatha', Delhi. On the basis of the result of the said contest, wherein short stories, written in Assamese, had also been put to contest, awards, with testimonials, were given and prizes, with cash amounts, were distributed in a function called 'Katha Utsav, 2004', the prize distribution ceremony having been taken place from 2nd January to 7th January, 2004, in New Delhi. While, at the prize distribution ceremony, the winner of the first prize was present, the informant-opposite party No. 2 hereby, namely, Arnab Jan Deka, who was the winner of the second prize, and the winner of the third prize, namely, Smt. Ratna Bharali Talukdar, were absent and, in their absence, the petitioner herein received the said second and the third prizes on behalf of the recipients aforementioned. (ii) With regard to the above, a photograph was published, in the Assam Tribune, on 14-01-2004. The photograph showed the winner of the 1st prize in the Assamese short-story, the winner being one Dhrubajyoti Sarma. The photograph also showed that the petitioner had accepted, in the said function, the 2nd and 31'd prizes, on behalf of the winners thereof, in their absence. The photograph showed the winner of the 1st prize in the Assamese short-story, the winner being one Dhrubajyoti Sarma. The photograph also showed that the petitioner had accepted, in the said function, the 2nd and 31'd prizes, on behalf of the winners thereof, in their absence. (iii) On publication of the above news item, the opposite party No. 2 lodged a First Information Report (in short, 'FIR') at Chandmari Police Station, on 14-01-2004, alleging therein, inter alia, embezzlement of his certificate and cash prize of Rs. 2,000/- by the petitioner in conspiracy with the office bearers of the organization of 'Katha'. Based on this FIR, Chandmari Police Station Case No. 16 of 2004 (Corresponding to GR Case No. 178/2004) under Sections 406/420/414/411/ 120B, IPC was registered. Police, eventually, submitted a final report, under Section 173, Cr PC, taking the view that the informant had lodged the FIR due to misunderstanding, because the informant had not I received formal invitation to attend the said festival nor had he been provided with the facility of Air Ticket by 'Katha' for enabling him to go to Delhi and coming back to Guwahati. Consequently, the informant, according to the police report, did not go to Delhi to the attend the award ceremony and, in the absence of the informant, who was the winner of the second prize, and also in the absence of the winner of the third prize, the-office bearers of 'Katha' organization gave the said two prizes in the hands of the invited guest, Smt. Phulu Goswami, (i.e., the petitioner herein), so that the same can be delivered to the respective winners. The petitioner, after coming back to Guwahati, accordingly delivered, on 13.01.2004, the said two prizes along with the cash money and certificates to Sri H. Gogoi, Sub-Editor, 'Gariyoshi', because Sri C. P. Saikia (since deceased), Editor, Gariyoshi, was not present in his office and that the said H. Gogoi, Sub-Editor, 'Gariyoshi', in turn, handed over the certificates and prize money to Sri C.P. Saikia (since deceased), on 14.01.2004, and, while the winner of the 3rd prize received the award and the prize money from the Editor, 'Gariyoshi', the 2nd prize winner (i.e., the informant-opposite party No. 2) declined to accept the prize and also the cash money. (iv) Aggrieved by the final report, so submitted, the informant-opposite party No. 2 filed an objection petition in the case aforementioned alleging to the effect, inter alia, that he (i.e. the informant) had been informally informed by the Editor, 'Garioshi', Late C.P. Saikia, that the petitioner's short story, namely, 'Himalayar Duporia: Ankur-Tapashy - Swarnakoshini' had won the 2nd prize in the said contest. The informant was also informed by the Editor, 'Garioshi' that he had arranged for translation of the informant's award winning story into English, because the informant would be formally invited to participate in the International Story Festival at New Delhi, on 02-01-2004, by 'Katha', Delhi, where the informant would have to read out the English translation of his award winning story and receive the award of Rs. 2,000/-, in cash, a citation and other gifts including memento and books. The informant was further informed by Sri C.P. Saikia (since deceased), Editor, 'Gariyoshi', that the award winning story would be published in the form of compilation by 'Katha'. On receiving the information, the informant wrote a letter, on 11-12-2003, addressed to 'Katha' expressing his willingness to accept the award in Delhi and he also filled up a form together with his bio-data on the basis of what he (informant) had been asked by the Editor, 'Garioshi', namely, Sri CP Saikia (since deceased) for the purpose of enabling the informant to participate in the said festival. Thereafter, the informant addressed several letters and made phone calls to 'Katha' and though the organization had promised that they would send a formal invitation, no formal invitation was received and, on 01-01-2004, when the informant visited the office of "Gariyoshi", at the Assam Tribune campus, he informed the Sub-Editor of 'Garioshi', Sri H. Gogoi, that he could rot make a trip to Delhi without receiving formal invitation and expenses for the journey from 'Katha'. However, on 14-01-2004, a news item along with a photograph, as regards the said function, was published in the Assam Tribune and it was from the said photograph and the news item, published in Assam Tribune, dated 14-01-2004, that the informant learnt that the accused-petitioner had been invited to Delhi festival by 'Katha' and without any consent or authority from the informant, the petitioner had received the award meant for the informant and she (the petitioner), along with other office bearers of 'Katha', had misappropriated cash amount and had also stolen and misappropriated the other properties. (v) Based on the above objection petition, learned Sub-Divisional Judicial Magistrate took, on 16.08.2010, cognizance of offences under Sections 406/420/414/411/ 120B, IPC and, subsequently, by order, dated 04-09-2010, summons were directed to be issued to, amongst others, the petitioner as one of the accused. 3. As already mentioned above, it is against the order, dated 16-08-2010, and subsequent orders passed therein that this criminal petition has been filed, the case of the present petitioner being, in brief, thus : (a) The petitioner is a retired school teacher and also a short-story and novel writer in Assamese language, she being recipient of 'Katha' award, for the year 1998, in Assamese language. The petitioner has a long-standing relation with the said organization, namely, 'Katha', Delhi, which held, in this regard, an award ceremony, namely, 'Katha Utsav, 2004' from 2nd January to 7th January 2004. Since receipt of 'Katha' award in the year 1998, the petitioner had been invited by 'Katha', Delhi, to attend several of its workshops and functions held in different parts of India. In the year 2004 too, the petitioner was invited by the said organization to participate in the 'Katha Utsav, 2004'. The petitioner accordingly participated in the said function from 2nd January to 7th January, 2004. In the said 'Katha Utsau, 2004', prizes were also distributed for a contest, which had' been conducted in the name of 'Search for Excellence', the contest having been jointly conducted by an organization called 'Garioshi', Assam, and 'Katha'. The winner of the 2nd prize, in Assamese language, was the opposite party No. 2, namely, Sri Arnab Jan Deka, and the winner of the 3rd prize was Smt. Ratna Bharali Talukdar. The winner of the 2nd prize, in Assamese language, was the opposite party No. 2, namely, Sri Arnab Jan Deka, and the winner of the 3rd prize was Smt. Ratna Bharali Talukdar. (b) As the recipients of 2nd and 3rd prizes had not arrived at Delhi at the time of festival, the petitioner was requested by the Festival Director, by letter, dated 06-01-2004, to receive and carry the prizes, including the cash amounts, to be handed over to the Editor, 'Garioshi', namely, C.P. Saikia (since deceased) and the petitioner accordingly received and brought those certificates and cash prizes to Assam and, on 13-01-2004, handed over the same to Sri H. Gogoi, Sub-Editor of 'Garioshi', because the Editor of 'Garioshi', C.P. Saikia (since deceased) was not available at his office and, to this effect, a receipt, dated 13-01-2004, was also issued by 'Garioshi' and, on return to his office from Delhi, Late C.P. Saikia received, on 16-01-2004, those certificates and cash amounts from his Sub-Editor, Sri H. Gogoi, and a receipt in this regard was also issued, on 16-01-2004, by Late C.P. Saikia. The petitioner has, thus, not committed any offence and taking of cognizance and progress of further proceeding, if allowed, would be abuse the process of Court. 4. In support of her case, the petitioner has also placed on record the letter, dated 06-01-2004, issued by Festival Director, 'Katha', requesting her to receive the said two prizes as the recipients thereof had not arrived at the ceremony. The petitioner has also placed on record a copy of the receipt given, on 13-01-2004, by Sri H. Gogoi, Sub-Editor, 'Garioshi', to the petitioner acknowledging the fact that the petitioner had handed over on 13-01-2004, the two certificates and the cash amount of Rs. 3,000/- in respect of 2nd and 3rd prizes, which had been awarded to the informant, namely, Sri Arnab Jan Deka and Smt. Ratna Bharali Talukdar in the contest jointly conducted by 'Garioshi' and 'Katha' and the same would be handed over to the Editor of 'Garioshi', namely, C.P. Saikia, when he arrives from Delhi. 5. 3,000/- in respect of 2nd and 3rd prizes, which had been awarded to the informant, namely, Sri Arnab Jan Deka and Smt. Ratna Bharali Talukdar in the contest jointly conducted by 'Garioshi' and 'Katha' and the same would be handed over to the Editor of 'Garioshi', namely, C.P. Saikia, when he arrives from Delhi. 5. The petitioner has produced, on record, a receipt, dated 16.01.2004, given by Late C.P. Saikia, the then Editor, 'Garioshi', to the effect that he (Late C.P. Saikia) had received, on 16.01.2004, at 10-15 a.m., two certificates and cash amount of rupees three thousand, from Sri H. Gogoi, Sub-Editor, 'Garioshi', in respect of 2nd and 3rd prizes for the contest, (Search for Talent', conducted jointly by 'Gariyashi' and 'Katha'. This receipt also acknowledges the fact that the said certificates and cash amount were handed over to the petitioner, on 06.01.2004, by the Executive Director, 'Katha', and the said certificates and cash amount had been received by Sri H. Gogoi, Sub-Editor, 'Garioshi', from the present petitioner, on 13.01.2004, in the absence of Late C.P. Saikia, the then Editor, 'Garioshi', The present petitioner has further produced, on record, a Seizure List, which shows seizure of the letter acknowledging the fact that the said certificates and prize money had been received by Late C.P. Saikia, the then Editor, 'Garioshi', on 16.01.2004, from Sri H. Gogoi, Sub-Editor, 'Garioshi', and another receipt, dated 13.01.2004, addressed to the present petitioner, issued by the said Sri H. Gogoi, as indicated hereinbefore. A zimmanama is also available on record, which shows that the seized materials/articles had been given in the zimma (custody) of Late C. P. Saikia, the then Editor, 'Garioshi'. 6. On the basis of the documents, which have been placed on record by the present petitioner, it has been contended by Mr. A zimmanama is also available on record, which shows that the seized materials/articles had been given in the zimma (custody) of Late C. P. Saikia, the then Editor, 'Garioshi'. 6. On the basis of the documents, which have been placed on record by the present petitioner, it has been contended by Mr. A.M. Bora, learned counsel for the petitioner, that in the face of these materials on record, it is very clear that the petitioner had, innocently and without any mala fide or ulterior motive, received the prizes, which included the cash amount, on behalf of the winners of the second and third prizes, as described above, on being asked by the organizers of the festival and had, in terms of the request, which had been made by the organizers of the festival, handed over the materials to the Sub-Editor, 'Garioshi', on 13.01.2004, because Late C.P. Saikia, the then Editor, 'Garioshi', was away to Delhi and, on return of Late C. P. Saikia, he was handed over the said materials and cash amount by Sri H. Gogoi, Sub-Editor, 'Garioshi', on 16.01.2004. 7. It is pointed out by Mr. A.M. Bora, learned counsel for the petitioner, that because of the seized materials, the police had found that no commission of offences had been made out against the present petitioner and others, named in the FIR by the informant-opposite party No. 2 and, accordingly, submitted a final report, but the learned Court below, on the basis of the objection petition, filed by the opposite party No. 2, as indicated above, has taken cognizance of the offences aforementioned and directed issuance of summons against the accused persons, who include the present petitioner as well, without assigning any cogent reason whatsoever for taking cognizance of offences aforementioned and for directing issuance of summons. 8. Mr. A.M. Bora, learned counsel for the petitioner, further contended that, in the facts and attending circumstances of the present case, the learned Court below ought not to have taken cognizance of any offence and, hence, if the order, taking cognizance, is not interfered with by this Court in exercise of its power under Section 482, Cr PC, then, it would be a case of abuse of the process of the Court and would not be in the interest of justice. 9. Resisting this application, Mr. P.J. Phukan, learned counsel, has, by referring to the decisions, in Indian Oil Corpn. 9. Resisting this application, Mr. P.J. Phukan, learned counsel, has, by referring to the decisions, in Indian Oil Corpn. v. NEPC India Ltd. and others, reported in (2006) SCC 736, has pointed out that, while considering any application for quashing of FIR or complaint, the Court has to assume the allegations, made therein, as true and shall not examine the merit of the allegations. 10. In the case at hand, according to Mr. Phukan, the version of the present petitioner or her defence rests entirely on the documents, which the petitioner has brought on record, and it is not permissible in law to quash a criminal proceeding relying on the documents, which form the foundation of the defence of the accused. The present proceedings of G. R. Case No. 178/2004 cannot, therefore, according to Mr. Phukan, learned counsel, be quashed and the trial needs to be allowed to be held in accordance with law. 11. In support of his contention that the allegations, made in the complaint, disclose commission of offences and that such a complaint cannot be quashed by relying upon some other materials, on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations, contained in the complaint, or the probability of the defence plea can be determined only by effective investigation or at the trial, Mr. Phukan has referred to the case of Bhaskar Seal v. Anjali Kalita, reported in 2006 (Suppl.) 1 GLT 650. 12. It is further submitted by Mr. Phukan, learned counsel, that if the allegations, made in the impugned FIR, are assumed to be true, a clear case of commission of offences, under Sections 406/420/414/411/120B IPC, is made out against the present petitioner and other co-accused. 13. Controverting the submissions, made on behalf of the opposite party No. 2, Mr. A.M. Bora, learned counsel for the petitioner, submits that it is not an invariable rule of law that under no circumstances, a document can be looked into by the High Court, while in seisin of an application made under Section 482, Cr PC, if the document is one on which rests the defence of the accused. Support for his submission is sought to be derived by Mr. Bora, learned counsel for the petitioner, from the case of Harshendra Kumar D. v. Rebatilata Kiley and others, reported in (2011) 3 SCC 351 . 14. Support for his submission is sought to be derived by Mr. Bora, learned counsel for the petitioner, from the case of Harshendra Kumar D. v. Rebatilata Kiley and others, reported in (2011) 3 SCC 351 . 14. What, now, needs to be noted is that in the case of State of Haryana and others v. Bhajanlal and others, reported in 1992 Suppl. (1) SCC 335, the Supreme Court has pointed out certain categories of cases, wherein the extraordinary jurisdiction under Article 226, and the inherent powers, under Section 482, Cr PC, can be exercised. The Supreme Court, in Bhajanlal's case, has laid down that in order to prevent abuse of the process of the Court or to secure the ends of justice, the High Court can, and should, exercise its power to interfere in matters of quashing of FIR or complaint, 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. In Harsheridra Kumar D. (supra), the Supreme Court has made it clear that it is not an absolute rule of law that the High Court, while exercising its jurisdiction under Section 482, Cr PC, or, while exercising its revisional jurisdiction under Section 397, Cr PC, cannot, under any circumstances, look into the nature of public document or such materials, which are beyond suspicion or doubt, in order to ascertain if the criminal prosecution should or should not be allowed to proceed. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra) that no greater damage can be done to the reputation of a person than dragging him in a criminal case. The Supreme Court has, therefore, held, in Harshendra Kumar D. (supra), that the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of director of the company, which, if looked into, would have made it clear that the appellant's resignation from the post of director of the company was much before the cheques had been issued by the company. The relevant observations, which appear, in this regard, at paragraphs 25 and 26, in Harshendra Kumar D. (supra), read as under : 25. The relevant observations, which appear, in this regard, at paragraphs 25 and 26, in Harshendra Kumar D. (supra), read as under : 25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused, which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction ion under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents--which are beyond suspicion or doubt--placed by the accused, the accusations against him, cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial Court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. 26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company. 15. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company. 15. From the law laid down in Harshendra Kumar D. (supra), it becomes clear that when the High Court is approached for quashing of a criminal prosecution in exercise of its extra-ordinary jurisdiction under Section 482, Cr PC, or in exercise of its revisional jurisdiction under Section 397, Cr PC, the High Court has to bear in mind that criminal prosecution affects the liberty of a person and there can be no greater damage done to the reputation of a person than dragging him in a criminal case. There is, therefore, no absolute bar, on the High Court's power, to take into consideration any uncontroverted document, which may have come on record, for the purpose of arriving at a decision as to whether a criminal prosecution should or should not be allowed to continue and, if the Court, on the basis of any public or uncontroverted document, comes to the conclusion that allowing the criminal prosecution to proceed, in such a case, would amount to abuse of the process of the Court, the High Court has the duty to quash such a proceeding. 16. It is, no doubt, true that while exercising its inherent jurisdiction under Section 482, Cr PC, or its revisional jurisdiction, under Section 397, Cr PC, where a complaint or FIR is sought to be quashed, it is not proper, on the part of the High Court, to consider the defence of the accused or enquire into the correctness or veracity of the accusations made against the accused. Nonetheless, in appropriate cases, if, in the face of the documents placed by the accused, which are beyond suspicion or doubt, the accusations against the accused cannot stand, it would be perversity of justice if the accused is asked to face trial, for, if it is so done, it would amount to denial of justice and would be tantamount to preventing justice from being done. This would be nothing short of abuse of the process of the Court. 17. This would be nothing short of abuse of the process of the Court. 17. In the backdrop of the position of law, as indicated above, when one reverts to the case at hand, what attracts one's attention, prominently, is that the documents, which have been placed on record by the petitioner in respect of her version of the case, are not the documents of the petitioner, but these are the documents, which have been seized by the police during investigation and the veracity or correctness of these documents are not in dispute. Even at the time of hearing of this Criminal petition, the veracity or correctness of the documents, which the petitioner has placed on record, have not been disputed, because the documents were seized by the police and they form an integral part of the investigation of the case. Though it may be true that the petitioner had no formal or informal authority or consent from the informant-opposite party No. 2 to receive the awards on his behalf, the fact of the matter remains that there is not even an iota of material on record to show that the petitioner or the organizers of 'Katha' or the organizers of the festival aforementioned, including the co-accused of the petitioner, had entered into any kind of criminal conspiracy to commit any offence whatsoever. What had, in fact, happened was that the petitioner was present in the said festival, in her own capacity, as a close associate of 'Katha' and she received the award, in question, because the informant-opposite party No. 2 had not attended the said festival on the ground that he had not received any formal invitation from 'Katha' nor had he been provided with requisite air tickets enabling him to reach Delhi. In this regard, it is worth noticing that the informant has categorically mentioned, in his FIR itself, that he had made it clear that he could not afford to go, on his own expenses, to Delhi and, secondly, he must be given a formal invitation, which, though promised, was never received by him. There may be default on the part of 'Katha', but it does not make out a case of commission of any offence merely because the present petitioner had no formal or informal authority, from the informant-opposite party No. 2, to receive the award on his behalf. There may be default on the part of 'Katha', but it does not make out a case of commission of any offence merely because the present petitioner had no formal or informal authority, from the informant-opposite party No. 2, to receive the award on his behalf. Receipt of award by person, on behalf of another, without any mala fide, cannot tantamount to commission of offence far less offences in respect whereof cognizance has been taken. Had the petitioner not handed over the materials, which had been received by her along with cash amounts, to the Editor, 'Garioshi', the matter would have been different. But the records reveal that, after she had handed over the said materials and cash amounts to the sub-Editor, 'Garioshi', on 13.01.2004, on the ground that Late C.P. Saikia, the then Editor, 'Garioshi', was away to Delhi, the Assam Tribune, a daily newspaper, published the news, with photograph, on the following day, i.e., 14.01.2004. Thus, before the opposite party No. 2 made his allegation of cheating, misappropriation, theft, etc., 'Garioshi had already received, in terms of the undertaking/acknowledgement given to the present petitioner by the Sub-Editor, 'Garioshi', the awards along with the cash amounts. 18. In the circumstances indicated above, allowing the present criminal prosecution to continue would be nothing, but gross abuse of the process of the Court, for, no case of commission of any offence can be said to have been made out against the petitioner and the other co-accused. In fact, the learned Court below, in its order, dated 16.08.2010, while taking cognizance, has not even indicated as to why it has chosen to take cognizance of the offences except saying that a prima facie case has been made out. How prima facie case was said to have been made out is not discernible from either the impugned order or the materials on record. 19. In the result and for the reasons discussed above, this criminal petition succeeds. The impugned order, dated 16.08.2010, is hereby set aside and quashed and, in consequence thereof, all subsequent orders, passed in GR Case No. 178 of 2004, shall accordingly stand set aside and quashed. With the above observations and directions, this criminal petition stands disposed of.