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2016 DIGILAW 877 (JHR)

Md. Nasimul Hoda, Son of late Nurul Hoda v. State of Jharkhand

2016-05-19

RONGON MUKHOPADHYAY

body2016
JUDGMENT : Heard the parties. 2. The petitioner in this application has prayed for quashing the entire criminal proceeding in connection with Lower Bazar P.S. Case No. 211 of 2013, registered for the offence punishable under sections 406, 420, 464, 466, 467, 468 and 471 of the Indian Penal Code. A further prayer has been made for quashing the order dated 27.06.2015, passed by the learned Judicial Magistrate, Ranchi, by which non bailable warrant of arrest has been issued against the petitioner as also the order dated 19.12.2015, passed by the learned Judicial Commissioner, Ranchi in Cr. Revision No. 216 of 2015, by which issuance of proclamation under section 82 Cr.P.C. was affirmed. In addition to the above prayers, the petitioner has also prayed for quashing the order dated 26.10.2015, passed by the learned Judicial Magistrate, Ranchi, by which process under section 83 Cr.P.C. has been issued. 3. A complaint case was initially instituted by the opposite party nos. 2 & 3 being complaint case no. 1915 of 2013, which was referred to the police for instituting an FIR under section 156(3) Cr.P.C., pursuant to which, Lower Bazar P.S. Case No. 211 of 2013 was instituted. The allegation made in the FIR is that the petitioner claiming himself to be an Income-tax practitioner had taken a sum of Rs.40.00 lakhs to Rs.50 lakhs from the complainants for making payment of income tax but he never furnished any challans and returns submitted with the Income-tax Department. It was also alleged that the complainants had subsequently made another payment of Rs.10 lacs for payment of advance tax. The complainants could later on come to know that the petitioner had cheated them and only 10% of the amount towards deposition of income tax had been submitted. It is alleged that when the complainants had asked the petitioner to reimburse the cash amount, which was realized for last 6-7 years, the same was refused and ultimately the complaint case was instituted. 4. Mr. A.K. Chaturvedi, learned counsel for the petitioner, has submitted that the FIR itself is vague as no specific details have been given with respect to income tax of the complainants and also with respect to break up of the income, for which tax was collected by the petitioner. 4. Mr. A.K. Chaturvedi, learned counsel for the petitioner, has submitted that the FIR itself is vague as no specific details have been given with respect to income tax of the complainants and also with respect to break up of the income, for which tax was collected by the petitioner. It has been submitted that till 2013, the assessee was required to sign on the form and the complainants must have been aware of the procedure with respect to deposit of tax more so when they are professional doctors. It has further been submitted that prior to institution of the FIR, an agreement was entered into and the contents of the agreement and the allegations made in the FIR are same and similar and when once compromise has been entered into for the same set of allegations, criminal prosecution cannot proceed. It has also been submitted that issuance of proclamation under section 82 Cr.P.C. and processes under section 83 Cr.P.C. are both bad in law as none of the said orders reflect subjective satisfaction of the learned Magistrate. Learned counsel submits that the Revisional Court had also not properly considered this aspect of the matter while dismissing the revision and affirming the order, by which proclamation under section 82 Cr.P.C. has been affirmed. 5. Mr. M.S. Anwar, learned senior counsel, appearing for O.P. Nos. 2 and 3, has submitted that at this stage when the FIR has merely been instituted, the entire criminal proceedings cannot be quashed. It has been submitted that whatever stand has been taken by the petitioner is by way of his defence and at best it can be decided by the trial court. It has been submitted that appreciation of the evidence in a summary proceeding is not permissible and in fact no criminal proceeding can be stifled except in rare and compelling circumstances. It has further been submitted that contention of learned counsel for the petitioner with respect to compromise, which was entered into prior to institution of FIR, cannot be decided at this stage as the same is the defence of the petitioner. It has further been submitted that contention of learned counsel for the petitioner with respect to compromise, which was entered into prior to institution of FIR, cannot be decided at this stage as the same is the defence of the petitioner. Submission has also been advanced with respect to issuance of proclamation and processes under sections 82 and 83 Cr.P.C. respectively by stating that the revisional court in its order dated 19.12.2015 has dealt with the matter and once the issuance of proclamation under section 82 Cr.P.C. is affirmed up to the revisional court, the petitioner cannot be permitted to re-agitate his claim in the garb of an application under section 482 Cr.P.C. as a second revision is not maintainable. Learned senior counsel submits that the petitioner has also duped two other doctors, for which a separate FIR has been instituted. Learned senior counsel thus submits that the present application is liable to be dismissed. 6. In this application, the petitioner has made two fold prayers. First prayer is with respect to quashing of the entire criminal proceeding whereas the second prayer is against issuance of non bailable warrant of arrest and proclamation and process under sections 82 and 83 Cr.P.C. 7. So far as the first prayer of the petitioner is concerned, the complaint petition itself alleges that a huge amount was taken by the petitioner on the pretext of depositing before the Income tax Department and the complainants were being duped continuously for last 6-7 years. The stand, which has been taken by the learned counsel for the petitioner with respect to the compromise, which was arrived at, cannot be the basis for quashing the entire criminal proceedings as this Court in a proceeding under section 482 Cr.P.C. is not to conduct a roving enquiry into the various documents, which have been brought on record. Moreover, when the investigation is at its recent stage, stalling the same when there is a prima facie case being made out against the petitioner, would not be permissible in the eyes of law. In such circumstances, therefore, the prayer with respect to quashing of the entire criminal proceedings is negated. 8. As regards the other prayer made by the petitioner is concerned, the impugned orders dated 7.7.2015 and 26.10.2015 seems to have been passed mechanically merely on the requisition filed by the investigating officer. In such circumstances, therefore, the prayer with respect to quashing of the entire criminal proceedings is negated. 8. As regards the other prayer made by the petitioner is concerned, the impugned orders dated 7.7.2015 and 26.10.2015 seems to have been passed mechanically merely on the requisition filed by the investigating officer. None of the orders indicate subjective satisfaction of the learned Magistrate. So far as the revisional order, which is also under challenge being Cr. Revision No. 216 of 2015, although the same has affirmed, the order passed by the learned Judicial Magistrate directing issuance of process under section 82 Cr.P.C. but the same also suffers from fundamental defects as the orders of the learned Magistrate showing non application of judicial mind and absence of cogent reasons have not been taken into consideration by the revisional court. Although it has been strenuously argued by the learned senior counsel for the O.P. Nos. 2 and 3 that this application under section 482 Cr.P.C. is under the garb of a second revision, but so far as the challenge, which has been made in the order passed in Cr. Revision No. 216 of 2015 is concerned, when there is blatant error in it, this Court can exercise its inherent powers under section 482 Cr.P.C. 9. In totality of the facts and circumstances, enumerated above, while rejecting the prayer of the petitioner with respect to quashing of the entire criminal proceeding initiated against the petitioner, the orders dated 7.7.2015 and 26.10.2015, passed by the learned Judicial Magistrate, Ranchi in G.R. Case No. 5215 of 2013 and the subsequent order in Revision dated 19.12.2015, passed by the learned Judicial Commissioner, Ranchi are quashed and set aside with a liberty to the learned Magistrate to proceed in accordance with law. 10. This application is allowed in part.