Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 35 (GAU)

Prasenjit Das v. State of Assam

2019-01-11

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. The present application has been preferred by the petitioner Prasenjit Das who is serving as a Sub-inspector of police in the Assam Police Department under section 482 Cr.P.C. for quashing of the FIR pertaining to Silapathor PS Case No. 133/2017 u/s. 120B/211/384 of IPC. 2. Necessary factual matrix depicted from the record reveals that on 09.07.2016 while one Atul Bora SI Silapothar PS while on duty alongwith other police officials in check-post of Piyang chapori village stopped one Tata sumo Vehicle no AR 09-3982 proceeding from Silapathar to Bogibil and on checking of the vehicle they found one passenger namely Siddarth Jadav, a person from Maharashtra carrying one packet of Glucon-D containing 14 grams of heroine (drugs). The aforesaid drugs were seized from his possession as per seizure list and he was arrested u/s. 43 NDPS Act. After thorough interrogation, it was known that the accused Siddarth was working under 3 persons namely 1. Kishore Keshwani, 2. Kai Seth and 3. Nanda Jethani who hails from Mumbai, who were involved in the drug business and the said accused Siddarth carried the drugs to those 3 persons. The phone No. of two of the accused persons was also revealed by the arrested accused Siddarth. 3. On the basis of the aforesaid FIR, Silapathar PS Case No. 194/2016 was registered u/s. 21 NDPS Act. The seized article was sent for examination at Forensic Science Laboratory and the article was found to be "Cocaine" percentage was of 49.37. During investigation, a team of police officers was sent to Mumbai to ascertain the particulars given by the arrested accused persons. After the investigation, charge-sheet was submitted against the said accused Siddarth u/s. 21 of the NDPS Act with the submission by the I/O. that there was lack of evidence against the other FIR named accused with a prayer to discharge those persons vide charge sheet No. 113 dated 19.07.2017. 4. That on 02.05.2017 the aforesaid FIR named accused persons namely Kishore Keshwani, Nanda Jethani, Kai Seth @ Amar R. Jethani addressed a letter to the Chief Minister, Assam, DGP, Assam, SP, Dhemaji, O/C Silapathar PS alleging that the aforesaid Silapathar PS Case No. 194/16 dated 9.7.2016 has been registered against them falsely. 4. That on 02.05.2017 the aforesaid FIR named accused persons namely Kishore Keshwani, Nanda Jethani, Kai Seth @ Amar R. Jethani addressed a letter to the Chief Minister, Assam, DGP, Assam, SP, Dhemaji, O/C Silapathar PS alleging that the aforesaid Silapathar PS Case No. 194/16 dated 9.7.2016 has been registered against them falsely. It is alleged that the said FIR was filed against them by projecting the accused Siddarth by one Anil Jai Singhani and his gang members with the active help of the reserve officer i.e. the present petitioner and the police officials Silapathar. The aforesaid letter was registered as Silapathar Case No. 133/2017 u/s. 120B/211/384 of the IPC. According to those three informants, they have call details to show the connection of the present petitioner with those miscreants. 5. Now the petitioner being aggrieved with the registration of the FIR of being Silapathar PS Case No. 133/17 u/s. 120B/211/384 of the IPC, the present petition has been preferred challenging the credibility of the aforesaid FIR on the ground that prima facie no offence is made out as against the petitioner from the substance of the said FIR. Further, it contends that Silapathar PS Case No. 194/2016 was registered on specific evidence on recovery of drugs which was found to be Cocaine and the petitioner was no way associated to the investigation of the aforesaid case nor he was a team member who visited Mumbai. The petitioner being a police officer may have phone communication with his superior as well as his subordinate, but there is nothing to show that the accused person has some communication with said Anil Jai Singhania and his gang. Accordingly it has been contended that there being no any prima facie materials against the present accused petitioner under said section of law. 6. I have heard Mr. A.K. Bhuyan for the petitioner, Mr. GN Sahawalla for the respondent No. 2 and Ld. PP for the Stated and also perused the CD for both the cases. 7. I have gone through the FIR dated 9.7.2016 by the SI of police, Silapathar PS as well as the subsequent FIR dated 2.5.2017. It is apparent that the present 3 (three) informants were the FIR named accused in the earlier FIR and present FIR has been filed after approx. 11 months. 7. I have gone through the FIR dated 9.7.2016 by the SI of police, Silapathar PS as well as the subsequent FIR dated 2.5.2017. It is apparent that the present 3 (three) informants were the FIR named accused in the earlier FIR and present FIR has been filed after approx. 11 months. The 1st FIR is specific about the involvement of the accused Siddarth from whom drugs were recovered and said Saiddarth disclosed about the name of the present 3 (three) persons who subsequently filed the FIR on a different pretext. From the long detail FIR filed by those 3 persons, it appears that they have serious rivalry against one Anil Jay Singhania and his gang who alleged to have managed filed false cases against those 3 persons who intended to grab their property by threatening their life. The said Anil Jay Singhania projected the false rape case against the accused Kishore and thereafter he has now projected another false case through said accused Siddarth in Assam to rob those 3 persons with drug cases. It is also narrated in the FIR that the present accused petitioner has a good communication with one Ankur Dutta who is vice-chairman of I-league and said Ankur Dutta has a communication with Anil Jay Singhania and with the help of present petitioner and the SP, Dhemaji, Swapneel Deka has projected the false case against those 3 informants (earlier FIR named accused). It has been contended that at the time registration of the aforesaid case on 09.07.2016, the present petitioner made lots of phone calls to another person bearing Mobile No. 7086560272 which is suspicious to hold that the petitioner might have made a conspiracy with Sri Anil Jay Singhania Similarly, the present petitioner also made frequent communication with the SP, Dhemaji, probably to report the matter of investigation of false case. The petitioner even planned to visit Mumbai on 01.09.2016 to arrest and harass those 3 persons but subsequently the idea was dropped as the SP was transferred and the I/O. Raja Sarkar visited Mumbai to whom they disclosed about the conspiracy hatched by Anil Singhania along with his associated with the aid of police personnel. Further, allegation in the FIR reveals that after transfer of the SP Swapnaneel Deka to Morigaon, petitioner was also got transferred to Morigaon to hatch conspiracy to fix innocent persons and there was exchange of telecommunication between duo. Further, allegation in the FIR reveals that after transfer of the SP Swapnaneel Deka to Morigaon, petitioner was also got transferred to Morigaon to hatch conspiracy to fix innocent persons and there was exchange of telecommunication between duo. 8. Reading the FIR as a whole it can be found that all allegation is made on assumptions and presumptions without there being any specific, prima facie materials against the present petitioner. In the affidavit-in-opposition, the respondent has narrated the same facts as has been divulged in the FIR showing long drawn hostile relation between Kishore Keshwani and others with that Anil Jay Singhania that cannot be a subject matter of the present FIR whereas the said 3 informants as well as Anil Singhania, hails from Maharashtra and such a matter will lie against the respective police station and State. So far as the present accused petitioner, the prime allegation is that he was behind the projecting the aforesaid case against those informants in registering the Silapathar PS Case No. 194/2016. Although, some call details have been referred but context of call details is not revealed. 9. According to the informant/respondent, the SP, Dhemaji got transferred from Dhemaji to Morigaon and petitioner being favourite to him was also transferred to Morigaon but according to the petitioner case of posting of a police officer is made by the State and is not a prerogative of the petitioner and having telecommunication conversation with senior officer or even to subordinate one is not an offence. The telephone numbers mentioned in the present FIR reveals that their calls were so made to only police officer not to any other private persons. In view of such matters on record, there is no substance in the allegation that the present petitioner having any nexus or role to play in registration of the aforesaid Silapathar PS Case No. 194/2016 and that the petitioner intend to harass the informant in any manner. 10. From the affidavit-in-opposition filed by the respondent No. 2 nothing appears to suggest the complicity of the present petitioner towards the registration of Silapathar PS Case No. 194/2016. 11. On perusal of the case diary of said Silapathar PS Case No. 194/2016, it disclosed that accused Siddarth was apprehended by the informant S/I Atul Bora along with 14 gms. Drugs, which was subsequently found to be Cocaine as per FSL Report. 11. On perusal of the case diary of said Silapathar PS Case No. 194/2016, it disclosed that accused Siddarth was apprehended by the informant S/I Atul Bora along with 14 gms. Drugs, which was subsequently found to be Cocaine as per FSL Report. The said drug was seized from the accused Siddarth by way of seizure list and the witnesses also supported such seizure. The said accused Siddarth made statement before the IO that he worked under 3 accused persons namely, Kishore Keshwani, kai Seth, Nanda Jethani. Even the phone Nos. of two accused persons Nanda Jethani and Kai Seth @ Amar R. Jethani was disclosed to the IO and one mobile was seized from the accused Siddarth. The mobile seized from the accused Siddarth supported the facts that those persons particularly Kai Seth @ Amar R. Jethani has direct contact with the arrested accused Siddarth also revealed from the CDR. Investigation also reveals that Amar R. Jethani and Nanda Jethani are brothers and Kishore Keshwani is their business partner and all hail from Mumbai, Maharashtra. In such factum how they can ascertain the affair of police officers in Assam and obtain CDR of the present petitioner is a crucial matter. After filing the earlier FIR dated 9.7.2016 implicating the present 3 (three) accused persons apart from Siddarth, the same person has now come up with the present FIR with a story that they have been falsely implicated by the said accused Siddarth with the conspiracy of police officials of Silapathar PS including the petitioner, whereas the case diary does not reveal that the present petitioner at any point of time investigated the case nor interfered into the investigation by himself or through any other officials. There is absolutely no any material to hold such proposition, as alleged by the present respondent/informant in the FIR. 12. Case diary further reveals that the 10 Raja Sarkar proceeded to Mumbai, Maharashtra after obtaining movement order from his superior officer to examine the FIR named other accused persons (present 3 informants) in the given address and as they were not found in their respective places at the relevant time, so the 10 served notice u/s. 160 of Cr.P.C. upon them to give their statement. Accordingly, those 3 (three) persons arrived at Silapathar PS, Dhemaji Dist-Assam from Maharashtra to give their statements, denying allegation but they admitted the phone call from the accused Siddarth as revealed in the CDR. However, they denied to have any acquaintance with the accused Siddarth. According to their statement a false case has been projected by one of their business rival, Anil Jay Singhania who have property dispute with them. 13. Subsequently, the 10 after receipt of the FSL report submitted charge sheet against Siddarth only u/s. 21(b) of the NDPS Act and rest of the accused were not sent up for trial. 14. There is not a whisper in the entire course of investigation to suggest that the case was falsely fabricated at the instance of the other police officials including the petitioner. 15. On the other hand, it is to be noted that the 10 of the said Silapathar PS case 194/2016 arrived at the given address of the 3 (three) other FIR named accused at Mumbai, Maharashtra and they are also interrogated, so the things remain that the particulars given by the accused Sidharth is proper. On the next, it was also admitted by the accused Amar R. Jethani about the phone call from the accused Sidharth in his mobile phone as revealed in the CDR, but despite that he denied to have known the said accused Sidharth. In spite of such matters on record the 10 hurriedly filed the charge sheet against the only one accused Sidharth, whereas there was scope for investigation. 16. However, we are not aware as to whether such prayer of the 10 in the charge-sheet to discharge the rest of the accused was accepted by the learned Trial Court or not. Be that as it may from the entire sum and substance of the FIR, it appears that the basic grievance of those informants is against business rival Anil Jay Singhania and he is apprehending that the said person might have filed this false case pertaining to the Silapathar PS Case No. 194/2016 inconvenience with police officials. While saying so, apart from giving some phone call details of the accused along with other police officials no other specific material could be elicited. While saying so, apart from giving some phone call details of the accused along with other police officials no other specific material could be elicited. It cannot be denied that the present informants being the FIR named accused has now filed the FIR after such long delay with a view to escape from the aforesaid case registered against them. Moreover, the allegation so made is not at all enough to draw an inference of cognizable offence for investigation. No offence of conspiracy u/s. 120 is made out. Moreover, Section 211 IPC is a distinct offence wherein the complainant will be none other than the court of law and cognizance of such offence is barred u/s. 195 of the Cr.P.C. 17. Sec. 195 Cr.P.C. reads as follows: Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance- (a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii)......................... (iii)............... except on the complaint in writing of that Court, [or by such officer of the Court as that Court may authorize in writing in this behalf], or of some other Court to which that Court is subordinate. (iii)............... except on the complaint in writing of that Court, [or by such officer of the Court as that Court may authorize in writing in this behalf], or of some other Court to which that Court is subordinate. Section 211 of the IPC reads as follows: False charge of offence made with intent to injure.-- Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or law fill ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, 1 [imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. In the instant FIR, save and except some vague allegation about extortion not a single instance has been disclosed the way of extortion so as to attract the offence of the Section 384 of the IPC. Offence of extortion is defined in Sec. 383 of IPC (punishable u/s. 384 IPC) which is referred as follows: Extortion.--Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion. None of the ingredients is attracted against the petitioner from the content of the FIR, except assumption and presumption. 18. In State of Haryana & Ors. Vs. Bhajan Lal & Ors. 1992 Supp (1) SCC 335, it has been held that; "The investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds. A noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court, on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. No one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such Power will tantamount to recognition of 'Divine Power' which no authority on earth can enjoy." 19. It has also been further held that: "The commencement of investigation by a police officer is subject to two conditions, firstly, the police officer should have reason to suspect the commission of a cognizable offence as required by Section 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as contemplated under clause (b) of the proviso to Section 157(1) of the Code." The expression "reason to suspect" as occurring in Section 157(1) is not qualified as in Section 41(a) and (g) of the Code, wherein the expression," reasonable suspicion' is used. As the words 'reason to suspect' are apparently clear, plain and unambiguous, considering the context and the object of the procedural provision in question, only the plain meaning rule is to be adopted so as to avoid any hardship or absurdity resulting there from and the words are used and also to be understood only in common parlance. Pakala Narayana Swami Vs. Emperor, AIR 1939 PC 47 : 66 IA 66 : 40 Cri.L.J. 364, relied on. Pakala Narayana Swami Vs. Emperor, AIR 1939 PC 47 : 66 IA 66 : 40 Cri.L.J. 364, relied on. So read the expression reason to suspect the commission of an offence would mean the sagacity of rationally inferring the commission of a cognizable offence based on the specific articulate facts mentioned in the first information report as well in the annexures, if any, enclosed and any attending circumstances which may not amount to proof. Therefore; the existence of the reason to suspect the commission of a cognizable offence has to be, prima facie, disclosed by the allegations made in the first information laid before the police officer under section 154(1). The meaning, of the expression "reason to suspect" has to be governed and dictated by the facts and circumstances of each case and at that stage the question of adequate proof of facts alleged in the first information report does not arise. 20. The following category of cases can be stated by way of illustration wherein the extraordinary power under article 226 or the inherent powers under sections 482 Cr.P.C. 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, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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 F.I.R. 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 un-controverted 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; (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. 21. Bearing in mind the principle laid down in the case of Bhajan Lal (supra) and the above findings and discussions above while reverting to the present case, there can be no hesitation to hold that the FIR did not constitute any cognizable offence justifying registration of the case. 21. Bearing in mind the principle laid down in the case of Bhajan Lal (supra) and the above findings and discussions above while reverting to the present case, there can be no hesitation to hold that the FIR did not constitute any cognizable offence justifying registration of the case. The case of the petitioner fall under the category of cases mentioned in Bhajanlal case, which renders exercise of extraordinary or inherent powers of the High Court to quash the FIR as it fails to disclose any prima facie offence against the accused petitioner to make out a cognizable offence justifying the investigation. On the face value of the matters on record where status of those 3 informants were accused in the earlier FIR and the vague allegation on the basis of conjunction and surmises, continuation of criminal proceeding will be nothing but an abuse of process of law. Furthermore, in the given background, the fact that the criminal proceeding mala fidely instituted cannot be denuded. 22. The inherent powers u/s. 482 Cr.P.C. and envisages under which inherent jurisdiction may be exercised namely (I) to give effect to the order in the Court (II) to prevent abuse of process of Court (III) to otherwise secure the ends of justice. The powers u/s. 482 of the Court of very wide and very plenitude of powers requires great caution in its exercise. The expression "abuse the process of Court" generally applies to a proceeding which wanting in bona fide and is frivolous, vexatious and oppressive. While exercising inherent powers of quashing u/s. 482 it is for the High Court to take into consideration any special feature which appears to a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue. Where in the opinion of the Court chance of element conviction are bleak and no useful purpose likely to be, served the Court may quash the proceeding (Shanu Vs. State of Bihar 2007 Criminal Law Journal 617 Patna). Under the provision of Section 482 the Court can take care of almost all the situations where inference of the High Court is necessary for any of the reason amounting to oppression or harassment under the trial. State of Bihar 2007 Criminal Law Journal 617 Patna). Under the provision of Section 482 the Court can take care of almost all the situations where inference of the High Court is necessary for any of the reason amounting to oppression or harassment under the trial. While appreciating allegations in the FIR constitute an offence the Court can look into whether there is any legal evidence in support of the same and or where evidence is fairly inconsistent with the accusation made. 23. From what has been discussed above in the present case the FIR failed to make out the prima facie allegation of cognizable offence as has been alleged and there appears to be a dishonest intention on the part of the informants to file the FIR to wreaking vengeance upon them. 24. Taking into all the given background of the case and other facts and circumstances emerged and primarily the findings that the present petitioner was not at all associated with the investigation of the earlier case Silapathar PS Case No. 194/2016 in fabricating any false case against the informants and this Court there being no any legal evidence to constitute a prima facie cognizable offence against the accused petitioner, this Court is of opinion that it is a fit case to quash the proceeding, as sought for. Resultantly, proceeding pertaining to the Silapathar Case No. 133/2017 stands quashed and set aside as regards petitioner Prasenjit Das. 25. Return the case diary to the Public Prosecutor.