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2019 DIGILAW 595 (GAU)

Anuradha Gogoi v. State of Assam

2019-05-14

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. Heard the Mr. J.I. Borbhuiya, learned counsel for the petitioners as well as Mr. D. Das, learned Addl. P.P., Assam for the State/respondent No.1. Also heard Mr. T. Sarma, learned counsel appearing for and on behalf of the respondent No.2. 2. By filing this petition u/s.482 read with Sections 397/401 of the CrPC, the petitioners have prayed for setting aside and quashing of the impugned FIR, in connection with which the Bhangagarh P.S. Case No.107/2016, corresponding to G.R. Case No.6455/2016, u/s.120(B)/326/307 IPC read with Section 27 of the Arms Act was registered. 3. Briefly stated the case of the petitioners is that they have a joint property with the dwelling house over a land measuring about 2 kathas 3 lechas, covered by Dag No.124(Old)/443 (New) at Patta No.18, situated at village Kahilipara under Beltola Mouza in Kamrup (M) District and they have been enjoying the same since many years. It is the allegation of the petitioners that the husband of the opposite party No.2, with his associates tried to dispossess the petitioners from the landed properties, which was the subject matter of a proceeding u/s.144 CrPC, where upon the learned District Magistrate, Kamrup (M) at Guwahti, by its order dated 12.07.2007, was pleased to draw a proceeding vide Case No.218M/2007. The petitioners also alleged that as the husband of the opposite party No.2 Sri Jatin Kumar Dhekial Phukan failed in his attempt to grab the land of the petitioners, he filed the Title Suit No.312/2008, before the Court of Munsiff No.4, Kamrup (M) at Guwahti, with a prayer for declaration of right, title and interest and also for recovery of possession of the schedule property mentioned therein and after hearing the parties at length, the learned trial Court vide its judgment and order dated 06.06.2011, dismissed the suit of the husband of the opposite party/ respondent No.2, with cost. 4. The further case of the petitioners is that the petitioner No.1 lodged an FIR before the officer- in-charge of the Dispur P.S., resulting registration of Dispur P.S. Case No.996/2011, u/s.509/294/337/506/34 IPC (corresponding to G.R. Case No.4566/2011) and after due investigation, charge sheet was submitted against the opposite party No.2 and the husband of the opposite party No.2 i.e. Jatin Kumar Dhekial Phukan and accordingly the matter was put under trial before the learned Court of Addl. CJM, Kamrup (M), who vide order dated 30.08.2016, was pleased to convict the accused persons by imposing the penalty of Rs.2,000/- against each of the accused, u/s.5 of the Probation of Offenders Act and further directed that "considering all aspect of the matter, for offence u/s.337/509/341 IPC, I direct to release of both the accused persons, namely Jatin Kumar Dhekial Phukan and Manjuri Dhekial Phukan forthwith subject to condition that each shall enter into a bond, without surety, in the amount of Rs.10000/- to keep the peace, be a good behavior and not to commit offence for a period of two years failing which, they shall be called upon to appear and receive sentence". 5. The petitioners further beg to state that the opposite party No.2 and her husband after loosing the Civil Suit i.e. Title Suit No.312/2008, again on 25.12.2014 tried to grab the land of the petitioners, which subjected to file another FIR in the Dispur P.S. and according the Dispur P.S. Case No.2791/2014, u/s.147/447/427 /323/324/34 IPC. The husband of the opposite party No.2 also filed the Title Suit No.333/2014 along with the Misc. (J) Case No.527/2014, under Order 39, Rule 1 & 2 of the CPC, praying for an injunction and the Court of learned Munsiff No.2, rejected the injunction petition vide its order dated 02.05.2015. Thereafter the husband of the opposite party No.2 Jatin Kumar Dhekial Phukan file another Title Suit against one Aditya Ingti in respect of the same property of the petitioners vide Title Suit No.17/2015. 6. After failing in all these cases, at last the respondent No.2 and her husband filed the impugned FIR on 09.06.2016, wherein it was stated that the husband of the opposite party No.2 is an employee of the ASEB and on that day at about 10:30 A.M., while her husband was on his way to office, near the Guwahati Medical College, some miscreants shot at him and she suspected the present petitioners and lodged the FIR. Accordingly the Bhangagarh P.S. Case No.107/2016, u/s.120(B)/326/307 IPC read with Section 27 of the Arms Act was registered. 7. Accordingly the Bhangagarh P.S. Case No.107/2016, u/s.120(B)/326/307 IPC read with Section 27 of the Arms Act was registered. 7. Against the registration of Bhangagarh P.S. Case No.107/2016, the present petitioners have approached this Court by filing the present petition u/s.482 read with Section 397/401 of the CrPC, for quashing of the impugned FIR dated 09.06.2016 and as well as the Bhangagarh P.S. Case No.107/2016, on the grounds, inter alia that there is manifest error of law on the face of the above in registration of the case as the dispute is civil in nature and for the lodging of the FIR to initiate a criminal proceeding resulted in miscarriage of justice. The informant lodged the FIR against the petitioners under mere suspicion to victimize them having no fault on their part, that the alleged cause of action of impugned FIR had arisen at Bhangarh near the Gauhati Medical College and there was inordinate delay in lodging the FIR without any explanation, etc. 8. I have heard the learned counsel for the petitioner as well as the learned counsel for the informant and the State/respondent. Also perused the materials in the case record and gone through the entire case diary meticulously. 9. According to the learned counsel for the informant in view of earlier land dispute and the litigation between the parties there is serious doubt against the accused petitioner for the alleged occurrence and hence criminal proceeding should continue towards its end. Relying on a decision of 2008 AIR SC 3077 Pankaj Kumar Vs. State of Maharastra and Ors. it has been submitted that inherent power of the High Court should be exercised sparingly and it is not a fit case to quash the entire proceeding in view of serious dispute between the parties having enmity between them and there is a serious doubt about the complicity of the petitioner in the aforesaid attempt to commit murder of the victim. It is further submitted that instead the quashing the proceeding, the Court can direct for speedy trial of the case. 10. Whereas the learned counsel for the petitioner vehemently submitted that the criminal proceeding cannot stand and continue on sheer suspicion, there being no any eye witness or even circumstantial evidence to the occurrence to support the allegation. 11. It is further submitted that instead the quashing the proceeding, the Court can direct for speedy trial of the case. 10. Whereas the learned counsel for the petitioner vehemently submitted that the criminal proceeding cannot stand and continue on sheer suspicion, there being no any eye witness or even circumstantial evidence to the occurrence to support the allegation. 11. Referring to the history of earlier civil as well as criminal litigation between the parties and lack of evidence in the present case, coupled with the fact that the FIR has been filed merely on suspicion, relying on the decision of (2013) 6 SCC 740 Chandranratna Swami Vs. K C Palaniswami and Ors. (etc.) and it has been submitted that only after losing the earlier litigations the respondent has filed the FIR against the petitioner only for harassment and persecution and continuance of such frivolous proceeding will be nothing but abuse of process of law and would cause miscarriage of justice. 12. The learned Addl P.P. Mr. D. Das has however fairly submitted that the victim himself could not say and identify the assailants and also no any other evidence suggesting the name of such assailants. 13. After going through the case diary including the statement of the victim as well as the supporting evidence and the note of the investigating officers from time to time it reveals that the victim was alone while driving his motor-bike and bullet injury was inflicted to him from backside and he could not identify any of the miscreants. Similarly, the other witnesses even totally unaware about the incident not to speak of the assailant who commit the offence and there is no eye witness to the occurrence and/or circumstantial evidence to suggest the complicity of the accused persons. The informant who is the wife of the victim was also not present along with the victim at the time of occurrence and she heard the matters from others. Case diary is absolutely silent as to who committed the offence. There is also no any scope for test identification of the accused persons, there being no any iota of evidence, so that one may identify the assailants. The informant as well as the victim (husband and wife) raised doubt that such injury might have been inflicted by the accused/petitioners on the grudge of earlier litigations. There is also no any scope for test identification of the accused persons, there being no any iota of evidence, so that one may identify the assailants. The informant as well as the victim (husband and wife) raised doubt that such injury might have been inflicted by the accused/petitioners on the grudge of earlier litigations. In view of such statement of witnesses including the victim and the informant it will be totally a misnomer to drag the petitioners with the alleged offence there being no any legal evidence on record. 14. On the face of the materials in the case diary, the learned Addl. PP has also fairly submitted that there is no sufficient incriminating materials against the petitioners save and except doubt raised by the informant side. Such a submission has a bearing on the issue and the hostile relation between the parties may be the reason for naming the accused petitioners out of the grudge. 15. We are aware that the powers u/s 482 of CrPC should be exercised cautiously and with circumspection and only to do the real and substantial justice. In the case of Pankaj Kumar (supra) relied by the informants side it has been held that such a power to be exercised where the court is convinced on the basis of material on record that allowing the proceedings to continue would be an abuse of process of the Court or that the ends of justice required that such proceedings ought to be quashed. Otherwise, the power u/s 482 CrPC should be not used mechanically and routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead miscarriage of justice. 16. In Chandranratna Swami (supra) it has been held that the wholesome power of Section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of process of Court and ends of justice required that proceeding ought to be quashed. The High Courts have been invested with inherent powers both in civil and criminal matter to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The High Courts have been invested with inherent powers both in civil and criminal matter to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The ends of justice are higher than the ends of mere law though justice must be administrated according to laws made by legislation. 17. Now, turning to the crucial question whether the criminal charge will lie only on suspicion we may refer to the observations and findings of the Hon’ble Supreme Court in AIR 2016 SC 3930 Manoj Kumar Sharma and Ors. Vs. State of Chhattisgarh, AIR (2018) SC 4654 Teshy Jose and Ors. Vs. State of Kerala and (2019) SCC online P & H 351 Abdul Rahaman Vs. State of Haryana. 18. In Manoj Kumar (supra) it has been held that allegation made in the FIR are inherently improbable and the evidence collected in support of the same does not disclose the commission of any offence it was held that the allegations being vague, do not warrant continuance of criminal proceeding. It is further held the Court is to take into consideration any special feature which appeared in a particular case to consider whether it is expedient and the interest of justice to permit the prosecution to continue. The power must be exercised by High Court judiciously and not capriciously as any improper exercise of power may lead to undesirable result. 19. In the subsequent decision of Teshy Jose and Abudl Rahman (supra) the Hon’ble Supreme Court held that the prosecution could not prove its case merely on suspicion as it is established law that suspicion however strong cannot be a made the basis of conviction. It has been held mere likelihood of suspicion cannot be a reason to charge for an offence and the proceedings are liable to quashed. 20. Bearing in mind the legal proposition when we examine the materials in case diary nothing remains that the informant tired to project the case only on suspicion and there is no any supporting evidence to suggest the complicity of the accused/petitioners. Criminal prosecution cannot be permitted to continue on the whims and pleasure of the litigants unless cogent, clear and convincing evidence collected in course of investigation which is very much lacking in the present case. Criminal prosecution cannot be permitted to continue on the whims and pleasure of the litigants unless cogent, clear and convincing evidence collected in course of investigation which is very much lacking in the present case. The case was registered in year 2016 and till yet no any evidence could be collected by the I.O. nor there is any scope to collect such evidence which has also been fairly submitted by the learned Addl. P.P. There being the position it can be safely concluded that the continuance of such criminal proceeding will be nothing but abuse of process of law and would cause miscarriage of justice. 21. For the reasons and the discussions as above, the prayer made in the petition is hereby allowed. Resultantly the impugned FIR dated 09.06.2016, pertaining to Bhangagarh P.S. Case No.107/2016, corresponding to G.R. Case No.6455/2016, u/s.120(B)/326/307 IPC read with Section 27 of the Arms Act, is hereby quashed and set aside. 22. The Criminal Petition stands allowed. Return the case diary immediately.