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2017 DIGILAW 1421 (GAU)

Khanin Das v. State of Assam

2017-11-09

HITESH KUMAR SARMA

body2017
JUDGMENT : 1. This is a criminal petition, filed by the accused-petitioner under section 482 of the Cr.PC, praying for quashing the First Information Report (‘FIR’) in Goalpara Police Station Case No. 3/2015, registered under sections 420/409/506 of the IPC. 2. Before adverting to the contention made in the petition, under section 482 of the Cr.PC, it would be appropriate to look into the FIR, which is sought to be quashed by the accused-petitioner. 3. The informant, Sri Dipak Kumar Das was the Assistant Engineer of the Goalpara Municipal Board and the accused-petitioner Khanin Das was the Chairman of the said Municipal Body, at the relevant period of occurrence of the alleged offences. 4. The informant filed a complaint before the learned Chief Judicial Magistrate, Goalpara, vide CR No. 1635/2014, which was endorsed by the learned Chief Judicial Magistrate to the Officer in-Charge of Goalpara Police Station for registering the case under the appropriate provisions of law and to investigate into the same and also to submit report in Full Form. 5. On perusal of the FIR, it is found that the Directorate of Municipal Administration, Assam sanctioned an amount of Rs. 5 lakhs on 11.1.2010, Rs. 5 lakhs on 15.6.2013 and another amount of Rs. 5 lakhs on 25.2.2011, totalling Rs. 15 lakhs, to the Goalpara Municipal Board for Low Cost Sanitary Programme (LCSP) for providing latrines to the BPL, SC and ST people under the Municipality. Some people belonging to SC/ST community from different wards under the Goalpara Municipal Board approached him for the latrines under the aforesaid LCSP for which fund was sanctioned and started to pressurise the informant. On 21.12.2014, those people, including witness Nos. 1, 2 and 3, came to the informant and started blaming him and the accused-petitioner alleging them to have misappropriated fund of the LCSP. Then the informant made an official enquiry and found that the accused-petitioner had withdrawn the entire fund aforesaid and misappropriated the same. Although there was no utilisation of the fund, yet utilisation certificate was furnished falsely by the accused-petitioner. There was no beneficiaries' record found in the office. Therefore, the accused-petitioner is alleged to have misappropriated public fund fraudulently by cheating the beneficiaries and by withdrawing the amount in self-drawn SBI cheques. On the basis of the aforesaid complaint/FIR, the Goalpara Police Station registered a case, being No. 3/2015, under section 420/409/506 of the IPC. 6. There was no beneficiaries' record found in the office. Therefore, the accused-petitioner is alleged to have misappropriated public fund fraudulently by cheating the beneficiaries and by withdrawing the amount in self-drawn SBI cheques. On the basis of the aforesaid complaint/FIR, the Goalpara Police Station registered a case, being No. 3/2015, under section 420/409/506 of the IPC. 6. Now, the present accused-petitioner, who is the Ex-Chairman of the Goalpara Municipal Board, by the instant petition sought quashing of the aforesaid complaint/FIR on the ground that during his tenure as the Chairman, on 16.09.2014, a group of people having vested interest being led by Sri Gautam Shome (witness No. 4) and Anowar Hussain, who were the Ex-ward Commissioners of Goalpara Municipal Board interfered and disturbed in his official works and instituted a number of litigations against the Goalpara Municipal Board. The witness No. 4, Sri Gautam Shome and former Ward Commissioner Anowar Hussain, both former Ward Commissioners, filed some cases before the learned Chief Judicial Magistrate through Sri Dhanjit Prasad Rabha and Sri Dipak Kumar Das (present informant) raising some false allegations involving some welfare works carried out during his tenure as Chairman in the Goalpara Municipal Board. He has also indicated the various cases instituted against him by Sri Dipak Kumar Das, aforesaid. According to him, the same set of facts complaints have been filed one after another with mala fide intention. 7. The instant case, according to the accused-petitioner is filed to deprive him from getting nomination as a candidate in the ensuing Municipal Election. 8. The counsel for the petitioner has submitted that the allegation levelled in the complaint/FIR in the instant case in respect of misappropriation of the fund sanctioned by the Government is false and he had spent the aforesaid fund for development works and necessary papers are available in the records of the Goalpara Municipal Board office. 9. It appears from the contents of the petition, in para 9, that the accused-petitioner had spent the sanctioned amount for development works. There is no mention in the petition at all that he had spent the sanctioned amount for the purpose for which it was sanctioned, i.e., for latrines under the LCSP for the BPL and ST/SC people. He is not found to have asserted that the fund was misappropriated against the scheme for which it was sanctioned. 10. There is no mention in the petition at all that he had spent the sanctioned amount for the purpose for which it was sanctioned, i.e., for latrines under the LCSP for the BPL and ST/SC people. He is not found to have asserted that the fund was misappropriated against the scheme for which it was sanctioned. 10. I have gone through the evidence collected by the Investigating Police Officer in the case. 11. It is found from his own statement, as an accused, before the Investigating Police Officer that during his tenure as Chairman of the Goalpara Municipal Board, he had spent Rs. 10 lakhs out of Rs. 15 lakhs sanctioned for the purpose for which it was sanctioned and the remaining Rs. 5 lakhs was utilised by his successor Chairman of the Goalpara Municipal Board. The witnesses so far examined makes it appear that the amount has been misappropriated by the accused-petitioner and no latrine under the aforesaid programme was utilised. It is alleged that no records of beneficiaries is also available in the Municipal Office meaning thereby that no beneficiaries got the latrines, in accordance with the programme, has not been disputed. 12. It is alleged that the utilisation certificate of the fund furnished by the accused-petitioner is a fake one. The note of the Investigating Police Officer also makes it appear that he has collected evidence to show that the aforesaid amount was misappropriated by the present accused-petitioner. 13. The hon'ble Supreme Court, in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, has laid down some guidelines in respect of quashing of the FIR, which are of course not exhaustive. The guidelines in the Bhajan Lal (supra) are as follows: (i) 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. (ii) 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. (ii) 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. (iii) 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. (iv) 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. (v) 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. (vi) 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. (vii) 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. 14. The allegations made in the FIR, aforesaid, if taken at their face value, prima facie, makes out an offence against the accused-petitioner. That apart, the allegation in the FIR discloses cognizable offence justifying investigation by the Police officer. On the other hand, in view of the evidence so far collected by the Investigating Agency, the allegations do not appear to be improbable and absurd inherently. 15. That being so, it appears that the guideline Nos. (i), (ii) and (v) in Bhajan Lal (supra) appears to be applicable in respect of the FIR involved in this case. On the other hand, in view of the evidence so far collected by the Investigating Agency, the allegations do not appear to be improbable and absurd inherently. 15. That being so, it appears that the guideline Nos. (i), (ii) and (v) in Bhajan Lal (supra) appears to be applicable in respect of the FIR involved in this case. It is a settled position of law that the inherent power of this court, under section 482 of the Cr.PC, has to be invoked after forming an opinion as to whether a criminal proceeding or complaint/FIR needs to be quashed or not only after evaluation whether the ends of justice will justify invocation of such power or it would be an abuse of the process of the court. 16. In the instant case, on the basis of the materials discussed above, this court is of the considered view that the investigation into the case is justified and it would be in the interest of securing justice. 17. That being the position, as discussed above, the present petition for quashment of the FIR, involved in this case, is dismissed. 18. Send down the case dairy.