Quashed

Naren Changmai and 2 Ors. v. the State of Assam and 2 Ors.

Gauhati HC2 Dec 2021Crl.Pet./854/2017

Case brief

AI extract

What is this about?

The Gauhati High Court exercised its discretion under Section 482 CrPC to quash an FIR against three college teachers for alleged defamation and criminal intimidation. Finding the FIR lacked substance with no corroboration beyond the informant's statement over years, the court held it failed to disclose a prima facie case.

What did the court decide?

The impugned FIR is hereby quashed and set aside; the Case Diary is returned to the police.

Naren Changmai and 2 Ors. Vs the State of Assam and 2 Ors. — Quashing and FIR | Gauhati HC (2021)

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GAHC010046062017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./854/2017

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NAREN CHANGMAI and 2 ORS. S/O LT. PHATIK CHANGMAI R/O AMOLAPATTY NAHARKATIA TOWN, WARD NO. 1, P.S. NAHARKATIA DIST. DIBRUGARH, ASSAM

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2: SRI BISWAJIT BHUYAN S/O LT. SURENDRA NATH R/O VILL- DIGHALIATI P.S. RAHA DIST.NAGAON ASSAM

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3: SRI HIMANGSHU MARAL S/O LT. HEM KANTA MORAL R/O HOUSE NO. 39 JANATA PATH ITANAGAR DHIRENPARA DIST. GUWAHATI - 781025 DIST. KAMRUP M ASSA

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VERSUS

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THE STATE OF ASSAM and 2 ORS. REP. BY THE PUBLIC PROSECUTOR,

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2:DR. KHIRESWAR BORAH ASSOCIATE PROFESSOR DEPARTMENT OF PHILOSOPHY ARYA VIDYAPITH COLLEGE P.O. GOPINATH NAGAR GUWAHATI -16.

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3:SRI TULSI DAS ASSOCIATE PROFESSOR DEPARTMENT OF HISTORY MORAN COLLEGE P.O. MORAN DIST. DIBRUGARH

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ASSAM PIN - 785670

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Advocate for the Petitioner : MS. S BHUYAN

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Advocate for the Respondent :

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BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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Date of Hearing : 02.12.2021

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Date of Judgment : 02.12.2021

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JUDGEMENT AND ORDER (ORAL)

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By this application under Section 482 CrPC, read with Sections 397 and 401 CrPC, the petitioners have prayed for quashing of the FIR of Paltanbazar PS Case No. 849/2017, under Sections 420/500/501/506 IPC, for want of prima facie case, made out against the petitioners.

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Heard the learned counsel for the petitioner and also the learned Additional Public Prosecutor for the State of Assam.

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None appears for respondent Nos. 2 and 3, although the name of the counsel is reflected in the Cause List.

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One of the informant, Dr Khireswar Boro expired as on 19.12.2020. Let the death certificate be kept as a part of the record.

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Learned counsel for the petitioner has vehemently contended that the present FIR that has been filed, has prima facie, failed to prove any allegation against the petitioner and otherwise, it is the internal affairs of the College Association. Referring to the content of the FIR, it has been submitted that the

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allegation made in the FIR is totally vague as about the role played by the accused petitioner Nos. 1 to 3, here, although they have been named in the FIR. Today, the Case Diary has also been produced on the basis of which, learned Additional Public Prosecutor has submitted that save and except the statement of the informant, no other statement of any witness has been recorded till now, rather the informant himself failed to produce any witness, as undertaken by him.

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Although on earlier occasions, learned counsel for private respondent/ informant appeared, but on subsequent occasions, there was no representation on their behalf.

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Having regard to the entirety of the matter, the petition is taken up for disposal at the admission stage itself.

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The informant are the President and Secretary of Assam College Teachers’ Association (hereinafter, in short, ‘ACTA’). In the FIR, it is stated that on the basis of the decision taken in the Steering Committee, the informants filed the FIR, taking note of some publication of booklet by one Dr Hitesh Kalita, which has degraded the image of the ACTA. The relevant portion of the FIR is quoted below:-

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“….Sir, we would like to inform you that since last few days some people with some vested interest, systematically, with an intention to malign the image of the association specially the President in the public one Sri Dr. Hitesh Kalita (Pen name) published a brochure without the name of printer and publisher and had forwarded the same to all college teachers and principals of all colleges of Assam (copy enclosed). We realize that this imaginary and cooked up new has insulted the association and malign

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the image. In addition to that the below mentioned 1, 2 and 3 are 3xpresident, ex-general Secretary and present Assistant Secretary (Academic) respectively, has published various unauthorized series of information relating to internal affairs of the Association and about the character of the President in various social media/facebook etc. since last January (copy enclosed).

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In addition to that Himanshu Moral, Assistant General Secretary (Academic) has given criminal intimidation to Dr. Pranjal Patir, representative of Guwahati City Zone on the issue of differences in the executive committee of the association (copy enclosed).

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Moreover, one Sri Saurab Pran Sarma, Professor of Arya Vidyapith College as well as Secretary of Guwahati City Zone of the Association was manhandled by some miscreants inside the college campus and fled away, in connection with that one Bharalumukh PS Case No. 286/2017 was registered. Having not satisfied with all these activities, the President of the Association as well as the Associate Professor of Arya Vidyapith College, Sri Khireswar Bora was attacked by some miscreants in front of college gate on last 02.08.2017 and 03.08.2017. However, the President somehow managed to escape, in connection of which, the President informed the matter personally to the concerned higher authority as well as Police, but till date none has been apprehended and published.

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Therefore, this ejahar has been lodged to take proper legal action on account of threatening came to the life of the President of the Association and for publishing systematic defamatory brochue and for attack committed to the office bearer of the Association.

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Yours faithfully,

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Dr Khireswar Bora, President,

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Tulsi Das, General Secretary,

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Assam College Teachers’ Association.”

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Obviously, the aforesaid FIR has not made any specific allegation against any of the accused person and entire matter has been lifted in the air that they earlier published unauthorized series of information, relating to the affairs of the ACTA, without indicating any sort of documents, that has been published nor it was annexed with the FIR.

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The Case Diary that has been produced reveals that save and except the examination of the informant, Dr Khireswar Bora, no other witness has been examined as none has been produced by the informants. The booklet that has been published by the said Dr Hitesh Kalita has simply been produced before the IO, which has several articles written by different authors, which has no direct bearing with the present petitioners. During the examination, the informant Dr Khireswar Bora, since expired, has stated that he is the President of the ACTA and has conflict with some persons and now Dr Hitesh Kalita has published some incriminating materials against him and the ACTA and he strongly suspects that the persons with whom he is in conflict may be involved in this case. The said informant had undertaken to produce his witnesses as on 09.09.2017, the date on which, his statement was recorded, but no other witnesses were produced during such period. The IO simply contemplated to examine the phone number that was given in the booklet, published by Dr Hitesh Kalita and the same also yielded no result. The Case Diary further reveals that due to such inability on the part of the said informant to produce any

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witness on his part since 2017, no any witness was examined and in the year 2019.

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It is discernible that save and except certain fake allegations, the informants failed to produce any witness in support of their allegations. The informant may have some conflict with some other persons of other department, but filing of such FIR without any basis as against the other colleagues/teachers of different colleges, is totally unfounded and hence, his statement is liable to be discarded. In the entire Case Diary, there is nothing to reflect that the present petitioners ever made any deception towards the informants or had made any defamatory statement against them and also their intention to attract the offence under Section 420 as well as Section 500 IPC, as has been registered in the present case. The case was registered in the year 2017 and till now, nothing has emerged against the accused persons and the IO has virtually closed the investigation.

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So far as the power and provisions under Section 482 CrPC, the Hon’ble Apex Court in the case of State of Haryana & Ors. –Vs- Bhajan Lal & Ors., 1992 Supp (1) SCC 335, has laid certain guidelines, as mentioned below:-

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“(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.

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(2) 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.

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(3) 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

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offence and make out a case against the accused.

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(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.

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(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.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

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(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.”

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The present case in hand, attracts the first category of Bhajan Lal (supra), which says that High Court can exercise the jurisdiction under Section 482 CrPC, when the FIR itself fails to disclose any prima facie case. That being so, the impugned FIR, which has no substance in law, is hereby quashed and set aside.

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Return the Case Diary.

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Criminal Petition stands disposed of.

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JUDGE

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Comparing Assistant

Naren Changmai and 2 Ors. v. the State of Assam and 2 Ors.

Case brief

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Naren Changmai and 2 Ors. v. the State of Assam and 2 Ors.

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