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2019 DIGILAW 155 (GAU)

Gopal Chandra Paul v. State of Assam

2019-02-01

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard learned counsel for the petitioner Ms. M Dev as well as learned counsel for the State/respondent No. 1, Mr. N J Dutta, Addl. PP, Assam. Also heard Mr. P N Choudhury, learned counsel for the respondent No. 2. 2. The petitioner being the Deputy Manager, State Bank of India, Panbazar, Guwahati lodged an FIR on 07.10.2010 regarding non-availability of the items in the locker No. 1090 of their bank. In the FIR, it was revealed that on that day while the repairing of few lockers of the bank was going on at their request, by the mechanic Sunil Barman in presence of their staff Mirdula Bhattacharjee they found that the aforesaid locker was not properly locked. The fact was immediately brought to the notice of the hirer of the locker Sri Prakash Chandra Medhi and Smti. Hemalata Medhi and they also visited the bank and give the list of the articles not available in the locker. 3. On the basis of the aforesaid FIR Panbazar PS Case No. 336/2010 u/s 461/380 IPC was registered. Several witnesses were examined during the course of investigation and at the conclusion of the investigation, the IO held that as the informant was the In-charge of the locker at the relevant time and one of the key of the locker remains with the bank authority and another with the hirer and locker was found open without breaking and he also signed the relevant register prior to the occurrence on 11.03.2010, so he was involved in the incident and charge-sheet was submitted against the informant as an accused (present petitioner) u/s 461/380 of IPC. 4. The accused petitioner entered his appearance before the learned trial Court and the learned trial Court on the basis of case of the materials relied by prosecution, framed the charge u/s 461/380 of IPC on 20.11.2015 to which he pleaded not guilty. Challenging the legality and validity of the framing of charge, present application u/s 482 Cr.P.C has been preferred on the ground that the impugned order of framing charge against the petitioner is bad in law and cannot sustain due to the lack of evidence against the petitioner and in fact, he was the informant who immediately informed the matter to police after such detection of theft. 5. 5. The learned counsel for the petitioner highlighting the facts behind, has submitted about procedure for having a locker in the bank and submitted that after executing an agreement between hirer of the locker and the Bank, the Bank Authority cannot open the locker of the hirer. At the time of opening the locker, the bank Authority and the customer have to use their respective keys at a time, otherwise no one can open locker by single key. But at the time of closing the locker, the customer can close the locker and the key of the bank is not required and bank Authority cannot close the locker. In the present case, the locker in-Charge Smti. Mirduala Bhattacharjee has stated that the locker was functioning well and there was no tampering but the door of the locker was slightly opened. Even the hirer did not lodge an FIR against the petitioner and none of the witnesses could make out any prima facie allegation against the accused petitioner and the I/O has filed the charge-sheet against him mechanically without there being any prima facie against him, which is illegal and has resulted in serious abuse of process of law and hence liable to quash and set aside. 6. The learned counsel for the petitioner in her argument drawn the attention of the Court to the statement of witnesses recorded during the course of investigation, which is stated to be totally insufficient to make out a prima facie case against the petitioner. It contends that the I/O has failed to consider the statement given by Smti. Mirduala Bhattacharjee, locker In-charge of the bank that there was no tampering of the lock, that bank Authority alone cannot open the lock unless the hirer remains present and used their respective keys at a time. It contends that the I/O has failed to consider the statement given by Smti. Mirduala Bhattacharjee, locker In-charge of the bank that there was no tampering of the lock, that bank Authority alone cannot open the lock unless the hirer remains present and used their respective keys at a time. It is further submitted that there was more than thousand lockers in the bank it would not be possible for a bank officer to verify every locker by touching it, after closing the same by customer and in the given case after opening the locker by the hirer on 11.03.2010, the said locker was found slightly open after 7 (seven months approx.) on 07.10.2010 without any tampering and without there being any specific evidence to suggest the complicity of the petitioner, the investigating officer has filed the charge-sheet against him merely on suspicion without any specific evidence which is not maintainable and bad-in-law. 7. Mr. Choudhury the learned counsel for the respondent No. 2 advanced his argument, that the bank Authority is responsible for missing of the article from the locker of the customer and they opposed such prayer for discharge of the petitioner from the aforesaid charge, as the grievance of the respondent/hirer is not yet redressed by the bank Authority despite their complaint filed before the bank Authority. In the affidavit-in-opposition filed by respondent No. 2 it submits that they are operating the same locker since 1997 in the State of India and in the month of March, 2010 they went to Canada and prior to that on 11.03.2010 they opened the lock and after signing the relevant register, they kept certain valuable ornament and jewelry amounting to Rs. 23,85,600/- and after returning on 07.10.2010, they were informed by the bank authority about the whole affairs. On their arriving in the bank, they found only few golden articles in the locker and they have also filed a complaint but the same was not registered or proceeded against the bank officials. It submits that the husband of the respondent No. 2 Smti. Hemalata Medhi had already expired and their valuable articles were also not recovered hence, the case should be proceeded, so that they can give their evidence. 8. The learned counsel Mr. It submits that the husband of the respondent No. 2 Smti. Hemalata Medhi had already expired and their valuable articles were also not recovered hence, the case should be proceeded, so that they can give their evidence. 8. The learned counsel Mr. Choudhury has submitted that entertaining such petition u/s 482 of Cr.P.C. for quashing the charge-sheet and the charge on merit on the guise of lack of prima facie evidence to stand the trial amounted, to pre- trial of a criminal case and it is not a case that no evidence has been made out against the petitioner. Referring to the decision rendered in Prakash Singh Badal Vs. State of Punjab and another, AIR 2007 SC 1274, it has been held that investigation should not be shut down on the threshold on the ground of mala fide, where there is some substance in the allegation to substantiate the complicity of the applicant. Reliance also been placed to the State of Maharshtra Vs. Salman Salim Khan, AIR 2004 SC 1189 , where it has been held that the framing of proper charge to be decided by the trial Court at the appropriate stage of the trial. 9. I have also heard the submission of learned Addl. PP, Mr. Dutta, who has referred the evidence recorded u/s 161 Cr.P.C. and the documents seized and has fairly submitted that there is no direct evidence on record to suggest the complicity of the accused petitioner and charge sheet has been submitted on certain presumption by the investigating officer. 10. Due consideration is given to the submission of both the parties and also gone through the matters on record and the LCR. For proper appraisal of the matter, appreciation of the FIR as well as the evidence on record is necessary. The content of the FIR has already been referred above which goes to show that it was the petitioner himself, who on the very day of occurrence filed the FIR and also intimated the hirer about the missing of the articles. In course of the investigation, the prosecution examined the hirer Prakash Ch. Medhi and some other witnesses and their evidence briefly discussed as below. Hirer Mr. Prakash Ch. In course of the investigation, the prosecution examined the hirer Prakash Ch. Medhi and some other witnesses and their evidence briefly discussed as below. Hirer Mr. Prakash Ch. Medhi has stated about depositing of gold ornament in the locker amounting to 20,00,000/- (Twenty Lac.) It is admitted that they visited the bank and operated their locker No. 1090 on last 11.03.2010 in presence of In-charge of the locker Smti. Mirdula Bhattacharjee and also the fact that he locked the locker after checking and returned and the relevant entry in the register was made by the present petitioner. On 07.10.2010 on being informed by Bank Authority he reached the bank and found Bank locker 1090 was open and only few gold ornaments were found whereas remaining items were missing from the locker. He strongly suspects the bank Authority might be involved in missing of ornament from the locker. He however, has not specifically implicated anybody. The other witnesses Santosh Ch. Debnath and Akhil Kumar Baishya as Mr. S Haokip, Sri Halakanta Das are all bank employees of SBI and they have stated about the incident of missing of articles from the locker of 1090 belongs to the hirer Prakash Ch. Medhi and the fact that that the matter was informed to hirer and also to police. Save and except about the knowledge of the incident and seizure of the locker and documents in course of investigation, they have no knowledge as to how the incident took place. It is their statement that petitioner Gopal Ch. Paul immediately informed the matter to the police. Another bank employee Smti. Mirduala Bhattacharjee has stated about the opening of the locker on 11.03.2010 by the owner of the locker Prakash Ch. Medhi in her presence and she gave the master key to the owner of the locker to open the lock, as because without master key lock could not be opened. She further stated that said owner of the locker Prakash Ch. Medhi himself closed the locker and the Deputy Manager Gopal Ch. Paul, (present petitioner) made entry in the relevant register. But after 7 months on 07.10.2010 while the mechanic was repairing some lockers, the locker No. 1090 was found open and thereafter it was found that the ornament value about 20 lac were missing. The accused also gave statement that on 07.10.2010 the locker operator Smti. Paul, (present petitioner) made entry in the relevant register. But after 7 months on 07.10.2010 while the mechanic was repairing some lockers, the locker No. 1090 was found open and thereafter it was found that the ornament value about 20 lac were missing. The accused also gave statement that on 07.10.2010 the locker operator Smti. Mirduala Bhattacharjee took the master key of the main door of the locker room along with the locker master key from him and at the time when Mriduala Bhattacharjee was in the locker room she noticed that locker No. 1090 was open. At that time he was in a meeting and on being informed he knew about the matter from Ms. Mriduala Bhattacharjee. He also admitted about entry in the register as on 11.03.2010, after locker was opened by hirer in presence of said Mriduala Bhattacharjee. 11. According to the witness Harakanta Das since 2007 the locker in-charge was Mirduala Bhattacharjee, whereas according to Santosh Ch. Debnath Mirduala Bhattacharjee was the locker operator. 12. Last witness/one of the co-hirer Smti. Hemalata Medhi (respondent No. 2 (now expired)) has also given the same statement, as given by her husband Prakash Ch. Medhi, that the locker was open jointly by them in presence of the locker in-charge Ms. Mridula Bhattacharjee and after keeping the articles in the locker, her husband properly closed the locker and informed the locker in-charge and accordingly the locker in-charge signed the register, on being informed. After few months, informant informed them, about the missing of ornament from the said locker. She also raised doubt that some bank officials may be involved in the missing of ornament. 13. None of the witnesses in their statement recorded by police u/s 161 of Cr.P.C., has stated about the complicity of the present petitioner. So far as the bank officials as well as the hirers are concerned, it emerges that such a locker cannot be opened by any person single handedly as one of the key is given to the hirer and other remained to the bank Authority i.e. the in-charge of the locker. On the last day of opening the locker i.e. on 11.03.2010 key of the locker was given to the witness Mirduala Bhattacharjee so that the hirer can open the locker and admittedly in presence of said Miss. On the last day of opening the locker i.e. on 11.03.2010 key of the locker was given to the witness Mirduala Bhattacharjee so that the hirer can open the locker and admittedly in presence of said Miss. Mriduala as well as by the hirer, locker was opened and locked by hirer and the same was reported to the locker in-charge/ the informant herein, who in turn entered the matter into the relevant register as apprised to him. Admittedly the petitioner was not inside the locker room, when the locker was opened or locked on the crucial day of incident. Again the hirer themselves admitted that locker was properly locked by them and in the circumstances how the accused can operate or open the lock is not at all brought to record. 14. From the last day of opening the locker i.e. on 07.03.2010, till the detection of the matter on 07.10.2010 there is a long gap and admittedly on the day of operating the locker, the hirer/owner of the locker, locked the locker himself and on the day of detection that the lock was slightly opened, there is no any evidence as to who tampered the locker! The investigating officer has himself drawn the conclusion irrespective statement of witnesses, that it was the accused petitioner who committed offences, being the in-charge of the locker and filed the charge-sheet against the petitioner but in the given circumstances save and except certain doubt against the petitioner, nothing specific made out against the accused petitioner. Same doubt can be raised against another person also Mriduala Bhattacharjee. 15. In order to make out an offence u/s 380 of IPC ingredients of theft is to be made out as against the doer. Definition of Section 378 defines theft as below: "Whoever, intending to take dishonestly any movable property out of the possession of any person without person's consent moves that property in order to such taking is said to commit theft." 16. Offence u/s 380 of IPC read as follows: "Theft in dwelling house, etc. - Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 17. - Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 17. None of the ingredients of the above offence is made out. Now, the Section 461 of IPC read as follows: "Dishonestly breaking open receptacle containing property. - Whoever dishonestly or with intent to commit mischief, breaks open or unfastens any closed receptacle which contains or which he believes to contain property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 18. The evidence collected in course of investigation discussed above also does not speak about complicity of the accused that he has committed the mischief. A prosecution case cannot stand only suspicion unless, a prima facie case is made out against the accused justifying a criminal proceeding. The present case relates to offences of warrant procedure and the Court can frame charge in terms of Section 240 of Cr.P.C. The provision of Section 240 of Cr.P.C. provides that the Magistrate can frame charge if, (I.) considering the police report and the document recorded under Section 173 (II.) Examining the accused, if necessary and (III) hearing the arguments of both sides, he thinks that there is a ground for presuming that the accused has committed an offence triable by as a warrant case, is competent to try and adequately punish. The Magistrate has to apply his judicial mind, fully adverting to the material on record for considering whether or not there is a ground for presuming the commission of offence by the accused. He may not automatically framed the charge merely relying on the documents filed by prosecution recorded to Section 173 where no prima facie offence made out against the accused person. As the law itself has provided the scope of hearing of both the sides, the Court should give weightage to the submission of both the parties. The provision of Section 239 and 240 CrPC (relates to warrant procedure case) is akin to the provision of Section 227 and 228 of CrPC which (relates to Session triable case) speaks for framing of charge or discharge. The provision of Section 239 and 240 CrPC (relates to warrant procedure case) is akin to the provision of Section 227 and 228 of CrPC which (relates to Session triable case) speaks for framing of charge or discharge. The Hon'ble Supreme Court in (1990) 4 SCC 76 discussing about the relative scope of Sec. 227 and 228 it has been held that under Section 227 of the Code a duty is cast on the judge to apply his mind to the material on record and if on examination of record he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand, if after such consideration or hearing he is satisfied that a prima facie case is made out against the accused he must proceed to frame the charge as required u/s 228 of the Code. It further held that Sec. 227 introduced for the first time in the new Code, confers special power on the judge to discharge the accused at the threshold if upon consideration of the record and document, if he considers there is no sufficient ground for proceeding against the accused. In other words, his consideration of record or the document at this stage is for limited purpose of ascertaining whether or not there exist sufficient grounds for proceeding with the trial against the accused. It must be remembered the Section was introduced in the Code to avoid waste of public time over a case, who does not disclose a prima facie case and to save the accused from avoidable harassment. The next question as to what is the scope and ambit of "consideration" by the trial Court at this stage; whether the Court can marshal the evidence on record, it has been answered that, this enquiry must necessarily be limited to deciding, if, the fact emerging from the record and documents constitutes the offence with which accused is charged and for that purpose he may sift the evidence for the limited purpose but not required to marshal the evidence. Equally, it is also held that in exercising the jurisdiction u/s 227 and the Code, a judge cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, total affect of evidence and the document produced before the Court, any basic infirmities appearing in the case and so on. In the instant case obviously it reflects that the trial Court has not undertaken the exercise by applying judicial mind as indicated above. 19. The Provision of Section 482 of CrPC has been incorporated in order to prevent the abuse of process of Court or otherwise to secure the ends of justice. The High Court in exercise of its power u/s 482 of CrPC can examine whether there is any legal evidence on record justifying further continuation of the criminal proceeding. In State of Karnatka Vs. L Muniswamy and Ors., AIR 1977 SC 1489 it has been held that the saving of High Court is inherent powers both in civil and criminal matter is designed to achieve a salutary public purpose which is that a court proceeding, ought not to be permitted to degenerate into a weapon of harassment or prosecution. It has been observed that the High Court, under its inherent power can quash a criminal proceeding on the ground of insufficiency of evidence. The order of framing of a charge affects the personal liberty substantially and therefore, it is the duty of the Court to consider judicially whether the material warrants the framing of charge. It cannot blindly accept the decision of the prosecution that accused be asked to face a trial. In exercise of this wholesome power, the High is entitled to quash a proceeding if it comes to a conclusion that allowing the proceeding to continue would be an abuse of process of the Court or that the ends of justice required proceeding ought to be quashed. In State of Haryana Vs. Bhajan Lal, (1992) Supp1 SCC 335 has laid down the law as to when criminal proceeding can be quashed by the High Court in exercise of power u/s 482 of CrPC or Article 226 of the Constitution to prevent the abuse of process of any Court and otherwise secure the ends of justice The said decision has been constantly followed by subsequent decisions 20. Turning to the present case in hand, it can be found from the totality of the facts and circumstances of the case and the statement that there is no legal evidence to attract ingredient of the offence alleged, so as to frame charge. The informant who lodged the FIR was held to be an accused by the investigating officer only, on the basis of suspicion which is not sustainable. 21. Resultantly, the impugned order of framing charge as well as the entire proceeding pertaining to GR Case No. 7701/10 pending before the learned JMFC, Kamrup (M) as against the petitioner is hereby quashed and set aside. Return the LCR.