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2020 DIGILAW 4 (MEG)

Devinder Mohan Thapa v. State of Meghalaya

2020-02-03

H.S.THANGKHIEW

body2020
JUDGMENT : 1. By way of this application under Section 482 of the Code of Criminal Procedure, the petitioner is seeking quashment of criminal proceedings emanating from the FIR dated 01.05.2019 filed by respondent No. 2 on the basis of which Rynjah P.S. Case No. 58(5) of 2019 under Sections 341 and 354 A has been registered. 2. The case of the petitioner is that on 30.04.2019 while he was on rounds in the Hospital (NEIGRIHMS) he noticed that two persons with bags, entering the Hospital had been stopped by the security personnel present. On inquiry it was revealed that the said persons were carrying unauthorised medical equipment to the Cathlab in the Department of Cardiology. The said two persons along with the medical devices were then taken to the Chief Security Officer, and on further enquiry it was discerned that the said medical equipment was from M/s Sanjo Medical (a private pharmacy) allegedly for use of patients, who were to undergo cardiac intervention on 30.04.2019. 3. It is the further case of the petitioner that the respondent No. 2, proprietor of M/s Sanjo Medical had entered the Cathlab without any valid authorisation at around 2 PM with the said two persons, who had carried the medical equipment, and exited the same at around 7 PM with certain medical devices. On being stopped by the security personnel, the medical equipment seized and brought before the Vigilance Officer, the respondent No. 2 it is alleged created a huge ruckus in the office of the Vigilance Officer. An inquiry was then initiated consisting of the Medical Superintendent, Deputy Hospital Administrator and Head of Department of Forensic Medicine to enquire into the incident of 30.04.2019. The Committee thereafter submitted a report indicting the respondent No. 2 along with certain doctors of NEIGRIHMS. 4. On 01.05.2019, the respondent No. 2 then filed an FIR against the petitioner alleging that the petitioner on 04.02.2019 had tried to outrage her modesty and also had demanded a commission on medical supplies. The petitioner’s stand is that on 04.02.2019 he was not even in Shillong and was attending a meeting of the Ministry of Health, Government of India in New Delhi. As such, being aggrieved the petitioner is before this Court by way of this petition. 5. Heard Mr. K. Paul, learned counsel for the petitioner and Mr. A. Kumar, learned Advocate General with Ms. As such, being aggrieved the petitioner is before this Court by way of this petition. 5. Heard Mr. K. Paul, learned counsel for the petitioner and Mr. A. Kumar, learned Advocate General with Ms. R. Conley, learned GA on behalf of the respondent No. 1 and Ms. S. Alam, learned counsel the respondent No. 2. 6. Mr. K. Paul, learned counsel for the petitioner submits that the FIR dated 01.05.2019, alleging that in the morning hours of 04.02.2019 the petitioner had come to the shop of the respondent No. 2 and tried to outrage her modesty, apart from asking the respondent No. 2 to carry on business as per his instructions and that had also demanded a commission, is totally a made up case to thwart any action that may be taken against the respondent No. 2 for her illegal actions and also to wreak vengeance upon the petitioner. The counsel submits that over and above the FIR, the respondent No. 2, on 03.05.2019 also filed a complaint before the Chairperson, Meghalaya State Commission for Women, Shillong reiterating the allegations contained in the FIR dated 01.05.2019, and the petitioner in this connection was asked to appear personally before the Commission on 09.05.2019 at 3.30 PM. 7. The learned counsel submits that on 09.05.2019 when the petitioner appeared in person before the Meghalaya State Commission for Women, he was shocked to discover that, on that day itself the respondent No. 2, had filed another letter with the Chairperson correcting the complaint dated 03.05.2019 by stating that the petitioner had not come to the shop on 04.02.2019 as earlier complained, but had come on 01.02.2019, and that the mistake was due to a typographical error. The counsel asserts that this fact is of extreme importance and has great significance, inasmuch as, the petitioner was not in station on 04.02.2019 and returned only on 06.02.2019 after attending a meeting of the SEC (Dermatology and allergy) at the FDA Bhavan (New Delhi) Ministry of Health and Family Welfare. The counsel then refers to Annexures 5 and 6 of the petition which are the documents and boarding passes, which confirm the statement that the petitioner was not in station on the said date i.e. 04.02.2019, when the incident had allegedly occurred as per the FIR and the first complaint before the State Women’s Commission. 8. The counsel then refers to Annexures 5 and 6 of the petition which are the documents and boarding passes, which confirm the statement that the petitioner was not in station on the said date i.e. 04.02.2019, when the incident had allegedly occurred as per the FIR and the first complaint before the State Women’s Commission. 8. Learned counsel submits that the factual backdrop leading to the filing of the FIR dated 01.05.2019 can clearly establish that the said FIR was filed mala fide by the respondent No. 2, to create a false facade of victimization when in fact it can be easily discerned that the same was done to harass and take revenge upon the petitioner. He also submits that the unconverted allegations in the FIR, even when taken at the face value do not prima facie make out a case against the petitioner especially after taking into consideration the events that transpired before the filing of the FIR. Learned counsel strongly argues that the filing of the FIR is patently perverse and a gross abuse of the criminal justice system. 9. Learned counsel then contends that the FIR dated 01.05.2019, the complaint before the Meghalaya State Commission for Women and the letter dated 09.05.2019, wherein the date of the alleged occurrence has been changed clearly establish a willful and deliberate attempt by the respondent No.2, to malign and harm the petitioner and to stop the petitioner from exposing the scam of selling of high end medical devices, implants at exorbitant rates to the public. He submits that the facts and circumstances preceding the filing of FIR dated 01.05.2019, categorically establish and point to the inescapable conclusion that the same had been filed mala fide by the respondent No.2, to not only harass the petitioner by subjecting him to criminal proceedings but also to tarnish his image and to prevent him from discharging his lawful duties as the Director of NEIGRIHMS. 10. Learned counsel in support of his submissions places strong reliance in the case of State of Haryana & Ors. vs. Bhajanlal & Ors. reported in (1992) 1 Suppl. SCC 335 and avers that the guidelines as laid down in Para 102 of the judgment especially at sub-para 5 and 7 have direct application in the instant case. Learned counsel also places reliance in the case of Zandu Pharmaceutical Works Ltd. Vs. Sharaful Haque and Anr. vs. Bhajanlal & Ors. reported in (1992) 1 Suppl. SCC 335 and avers that the guidelines as laid down in Para 102 of the judgment especially at sub-para 5 and 7 have direct application in the instant case. Learned counsel also places reliance in the case of Zandu Pharmaceutical Works Ltd. Vs. Sharaful Haque and Anr. reported in (2005) 1 SCC 122 . Learned counsel finally submits that the case is a clear case of mala fide and the accusation made is without any basis, which is all the more evident by the fact that the respondent No. 2 is not even certain about the date of occurrence. As such he submits the entire story being made up the same is an abuse of the legal process, and the FIR and proceedings against the petitioner are liable to be quashed. 11. Ms. S. Alam, learned counsel for the respondent No. 2 in reply submits that in order to test whether the allegations made in the complaint are inherently improbable, the complaint must be looked at as a whole and not in a piece meal manner. Learned counsel submits that admittedly the petitioner had intercepted the respondent’s No. 2 employees on 30.04.2019 while they were carrying ordered/invoiced medical equipment, by virtue of being an approved vendor, to the Cardiology Department. Counsel submits that in an obvious attempt to harass the respondent No. 2, the petitioner had detained her employees along with equipment worth Rs. 30 lakhs, and the respondent No. 2 was called to the premises, manhandled and verbally abused. Learned counsel asserts that there are reasons behind such vindictive behaviour, which deserves to be inquired into, as also the fact, of the seeking of a commission and the unwanted advances made by the petitioner upon Respondent No. 2. Learned counsel submits that the allegations of the petitioner that the FIR and complaint are manufactured with a view to cause undue harassment are therefore misplaced and incorrect. 12. Learned counsel for the respondent No.2 submits that the Meghalaya State Commission for Women also took cognizance of the matter and had summoned the petitioner and that the Commission in the proceedings, before it had also returned a finding of harassment and had asked the petitioner to apologize. 12. Learned counsel for the respondent No.2 submits that the Meghalaya State Commission for Women also took cognizance of the matter and had summoned the petitioner and that the Commission in the proceedings, before it had also returned a finding of harassment and had asked the petitioner to apologize. Learned counsel submits that it is frivolous to suggest mala fide on the part of the complainant or suggest that the events as improbable, in view of the actions of the petitioner which by itself can be seen from the entire sequence of events, such as the detention and illegal seizure of consumable medical equipment, the harassment of the respondent No. 2 by the security personnel, and the fact that the petitioner continues to defame the respondent No. 2 for no apparent reason, even when the matter is seized by this Court. 13. On the question of correction of date of the alleged incident, learned counsel submits that the mention of 04.02.2019 was a typographical error when in fact the petitioner had actually visited the respondent No. 2 on 01.02.2019, and that, even in the statements recorded before the Women’s Commission, the respondent No. 2 had in many places made a reference to the incident that it had happened on 01.02.2019. She further submits that such a correction is a subsequent statement under Section 161 Cr.P.C. and at best can be a ground of defense to the petitioner but will not suffice to be a ground for quashing of the FIR in the preliminary stages. 14. Learned counsel also seeks to clarify that the order dated 20.05.2019 passed by this Court, wherein it has been recorded, that the statement taken on 08.05.2019 stated the date of occurrence as 04.02.2019, is incorrect, and submits that the respondent No. 2 had never given any statement to the police on 08.05.2019 and was surprised that the case diary reflects the same. Learned counsel submits that it was just in passing on 08.05.2019 at the police station that the i/c one Mr. Pde asked the respondent No. 2, if she was sure as to the date of incident which was when that the respondent No. 2 realized that she had made an error, regarding the date of incident. It is noted by the Court at this juncture that the submissions so made have also been put before this Court by way of Misc. It is noted by the Court at this juncture that the submissions so made have also been put before this Court by way of Misc. Case No. 13 of 2019 seeking modification of that part of the order, which however at the time of final hearing was not argued by the respondent No. 2. 15. Learned counsel in support of her submissions has placed reliance on the cases of Pooja Pal vs. Union of India & Ors. reported in (2016) 3 SCC 135 , T.T. Anthony vs. State of Kerala reported in (2001) 6 SCC 181 and the judgment of Manoj Kumar vs. State of Uttarakhand reported in (2019) 5 SCC 667 . The cases as cited deal with the scope of 154, 162 Cr.P.C. and are duly noted by this Court. In concluding her submissions, the learned counsel for the respondent No. 2 reiterates that the fact of harassment and vindictiveness of the petitioner towards the respondent No. 2 stemming from the incident of 01.02.2019, require proper investigation and as such prays that this Court dismiss the instant criminal petition. 16. Mr. A. Kumar, learned Advocate General in his short submission has submitted that notwithstanding the correction of the date of the incident, investigation is necessary if the ingredients of an offence are present and that all issues in this regard can be gone into only by investigation. He further submits that in such cases discretionary power may not be exercised and that the incorrect mention of the date in the FIR will not absolve the petitioner of criminal liability. He lastly submits that the petition being without merit be rejected. 17. I have the learned counsel for the parties. Section 482 as held by the Hon’ble Supreme Court in a catena of judgments reserves the inherent powers of the High Court to prevent an abuse of the process of any Court, or to secure ends of justice and a Court must evaluate whether the ends of justice justify the exercise of this inherent power. This power has to be exercised also with the nature and gravity of the offence being kept in mind apart from the facts and circumstances of that case itself. 18. This power has to be exercised also with the nature and gravity of the offence being kept in mind apart from the facts and circumstances of that case itself. 18. In the instant case the petitioner has put up a case which as per the submissions of the counsel will fall within the guidelines as laid down in the landmark case of State of Haryana vs. Bhajanlal (Supra) and more specifically on clauses 5 & 7, which speaks of allegations being made in an FIR or complaint to be absurd and improbable and that the criminal proceeding is manifestly attended with mala fide or has been maliciously instituted with an ulterior motive for vengeance due to private and personal grudge. To examine the case and to come to a conclusion it is necessary to recount the facts that surround the entire matter leading to the filing of the FIR and the sequence of events thereto. 19. The FIR filed on 01.05.2019 relates to an alleged incident that had taken place on 04.02.2019 but which was later corrected to 01.02.2019. Firstly, the delay in lodging the FIR has been attributed to the fact that the respondent No. 2 was hesitant as she was a married person and it would have disturbed her family. A delay in lodging an FIR if justifiably explained will not be fatal although an undue delay in lodging an FIR always attracts a certain amount of suspicion but the same cannot be a ground for doubting the case of the complainant. The Courts have to be very circumspect and on guard to examine whether the explanation offered is satisfactory or not. In this case however, apart from the delay, what requires due consideration is the chain of events that surround the matter as it will have a very important bearing on the outcome of this petition. 20. As noted earlier there was an incident that occurred on 30.04.2019 in the Institute, which led to a seizure of medical equipment and apprehension of the personnel in the employ of the respondent No.2. The FIR was lodged on 01.05.2019 that is the next day itself, alluding to events that allegedly took place on 04.02.2019, though later corrected to 01.02.2019. As noted earlier there was an incident that occurred on 30.04.2019 in the Institute, which led to a seizure of medical equipment and apprehension of the personnel in the employ of the respondent No.2. The FIR was lodged on 01.05.2019 that is the next day itself, alluding to events that allegedly took place on 04.02.2019, though later corrected to 01.02.2019. What catches the attention of the Court, is the fact that the FIR was lodged immediately after the unsavoury incident had occurred wherein the petitioner and the respondent No.2 were at loggerheads. The timing of the FIR therefore assumes significance and deserves consideration. 21. Another aspect which also merits consideration is the circumstances which led to the correction of the date in the FIR. The petitioner on the said date of occurrence as given earlier in the FIR that is 04.02.2019, was not even in Shillong and this is amply evidenced by the annexures to the petition, i.e. the boarding passes etc. which cannot be refuted. The respondent No. 2’s subsequent realization and correction also throws up questions which defy any definitive answer but will no doubt cast a shadow on the veracity of the allegations made by her against the petitioner. 22. Though an FIR is not substantive evidence, it can be used to corroborate or contradict the informant under the Indian Evidence Act. The nature and content of the same is important, apart from the other aspects, for impeaching the worthiness of the informant. Though as held in T.T. Anthony vs. State of Kerala (supra) that there can be no second FIR, and no fresh investigation called for, on receipt of every subsequent information in respect of the same cognizable offence, and that every subsequent information will be covered under Section 162 of the Cr. P.C, the correction of the date of the incident in the FIR in my opinion, assumes a different dimension, inasmuch as, the case of the respondent No. 2, as sought to be made out will be rendered useless if the date of the incident as having occurred on 04.02.2019 stood. The judgment of Manoj Kumar vs. State of Uttarakhand (supra) which concerns a second FIR which has been relied upon by the respondent No. 2 will have no relevance in the instant case which stands on a different footing considering the surrounding facts and circumstances. 23. The judgment of Manoj Kumar vs. State of Uttarakhand (supra) which concerns a second FIR which has been relied upon by the respondent No. 2 will have no relevance in the instant case which stands on a different footing considering the surrounding facts and circumstances. 23. As held in the case of Pooja Pal vs. Union of India (supra) and relied upon by the respondent No. 2 the guarantee under Article 21 embraces both the life and liberty of the accused as well the interest of the victim and the community at large. It however also notes in para 86, a portion which is extracted herein as follows:- “No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice.” In this context each case has to be examined against its own situated facts and circumstances in order to ensure or secure the ends of justice and to prevent any abuse of the process of any Court. This has to done especially in exercise of inherent powers so as not to extinguish or muzzle genuine complaints. 24. The chain of events in the instant case and the totality of circumstances that brought about the filing of the FIR dated 01.05.2019 and the events thereafter have made this case peculiar to itself, and as such no strait jacket formula can be employed or adopted, to determine its outcome. To reiterate, firstly, the delay in lodging the F.I.R. as observed earlier, though not fatal to the case and not to be considered a factor to influence any decision, the timing of the same cannot be ignored, that is, it was filed the very next day after the incident of 30.04.2019. Secondly, the correction of the date is another factor that also has importance, inasmuch as, the respondent No. 2’s complaint would have been rendered useless, if the original date stood as 04.02.2019. The correction therefore, has to be viewed with a certain amount of doubt as to its objective, which brings into play the aspect of malice. Secondly, the correction of the date is another factor that also has importance, inasmuch as, the respondent No. 2’s complaint would have been rendered useless, if the original date stood as 04.02.2019. The correction therefore, has to be viewed with a certain amount of doubt as to its objective, which brings into play the aspect of malice. Looking at the matter in its entire perspective and not piecemeal, or only at the complaint, it is seen that the instant case is a fit case, wherein the discretionary power under Sec. 482 CrPC is to be exercised in the interest of justice. 25. Therefore, on careful consideration of all the attendant facts and circumstances as discussed above, I am inclined to accept the arguments and reasons as advanced by the petitioner that the case meets the guidelines as contained in clause 7 of para 102 from the case of State of Haryana vs. Bhajanlal which is quoted herein below:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised 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 sufficient channelised and inflexible guidelines or rigid formulae 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) Wherein the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose any cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code. (2) Wherein the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose any cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code. (3) Wherein 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. (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.” 26. For the foregoing reasons, the petition is allowed and the criminal proceedings arising from the FIR dated 01.05.2019 on the basis of which Rynjah P.S. Case No. 58 (5) of 2019 u/s 341 and 354 A is registered, are hereby quashed. 27. No order as to costs.