Petitioner sought quashing of an FIR under Section 482 CrPC, claiming his name was absent and allegations false. Court dismissed plea, ruling that subsequent investigation implicating the petitioner and existing FIR foundation precludes premature quashing.
Petition dismissed; parties to bear own costs.
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GAHC010236862018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1066/2018
ARUP JYOTI DEV SARMA
S/O- SRI PREMADHAR DEV SARMA, R/O- PILANI ENCLAVE, AAMTAL, UPPER SACHAL, SIX MILE, P.S- DISPUR, GUWAHATI- 22, DISTKAMRUP(M), ASSAM
VERSUS
THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM
2:NINGTHEM MANGSATABAM ASSTT ADMN CUM LEGAL OFFICER ASSAM DOWN TOWN UNIVERSITY PANIKHAITI GHY- 26 KAMRUP(M
BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing : 23.08.2022.
Date of Judgment : 20.09.2022
JUDGEMENT (CAV)
Heard Mr. B.D. Goswami, learned counsel appearing for the petitioner. Also heard Mr.
B. Sharma, learned Addl. P.P., Assam, appearing for the State respondent No.1 and also heard
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Mr. N. Deka, learned counsel for respondent No.2.
2. This application under Section 482 of the Cr.P.C., is preferred by applicant, namely, Dr. Arup Jyoti Dev Sharma for quashing of the FIR in Pragjyotishpur P.S. Case No.133/2018, under Sections 120(B)/420 IPC, so far it relates to the petitioner is concerned.
3. The factual background leading to filing the present petition is briefly stated as under:-
“On 25.06.2018, Shri Ningthem Mangsatabam, Asst. Admin-cum- Legal Officer, Assam Down Town University, lodged one FIR with the Officer-in-Charge, Pragjyotishpur P.S., alleging inter alia, amongst others, that four employees of Assam Down Town University, namely Junti Padun, Gunajit Choudhury, Nabanita Bora and Mr. Ajoy Saikia are strongly suspected for taking money from students to clear their backlog examinations. Upon the said FIR, the Officer-in-Charge, Pragjyotishpur P.S., registered Pragjyotishpur P.S. Case No.133/2018, under Sections 120(B)/420 IPC and investigation is being carried out. During the course of investigation, the Investigating Officer has arrested some of the accused persons, including the petitioner, in the month of July, 2018 and forwarded them to jail hazoot. Thereafter, the petitioner got regular bail from the court in the month of August, 2018.”
4. Being highly aggrieved, the petitioner has approached this Court for quashing the FIR, on the ground that the name of the petitioner finds no mention in the FIR, and that he was no way involved in the offences alleged in the FIR, and that one person, namely Dr. Kabindra Nath Sharma, who was holding the post of Director, dtSAHS was allowed to resign from the service in the month of August, 2018, and that he has discharged his substantive duty by taking classes to the satisfaction of all, and besides, he was entrusted with the charge of
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Deputy Controller of Examination from September 2011. He was also entrusted the duty of I/C, Deputy Controller of the Examinations, and thereafter, one additional examination cell was formed to conduct the examination for Certificate and Diploma course, headed by Dr. K.N. Sharmah, Director, dtSAHS and in the said cell Dr. Gunajit Chaudhary was the Program Co-ordinator, Ms. Junti Padun and Ms. Diamond as members, and thereafter, all examinations for Certificate and Diploma Courses were conducted by the said cell headed by Dr. K.N. Sharma. The faculty members prepares result sheet, mark sheets, and pass certificates and after completion of the process, the Tabulation Sheets, Result Sheets, Mark Sheets were duly signed by two faculty members of the cell and the Director dtSAHS, and thereafter, the same were sent to the Controller of Examination for counter signature and then the counter signature was put by either by Controller of Examination or by I/C Deputy Controller of Examination, which post was held by the petitioner at the relevant point of time. And that the petitioner has received one show cause notice in respect of result of some candidates, namely- Abidur Rahman Rajborbhuyan, Rituraj Baruah and he had replied the same and that he put his signature on faith of signatures of the Tabulators and Directors, and it is not possible to check each and every student’s mark during the signing of the tabulation. Thereafter, the petitioner was suspended from the position of Deputy Controller of Examination and a domestic enquiry was conducted. It is also stated that the petitioner had no other choice to disbelieve such documents as untrue and that there was no ill motive on his part, and the petitioner cannot be blamed for any lapse or manipulation. It is also stated that the allegations so brought in the FIR is not at all applicable in case of the petitioners and he had no mens rea on his part and his action was bona-fide one and no ingredients of the offences under Section 120(B)/420 IPC, as alleged in the FIR, are applicable in his case and
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as such the FIR is bad in law and liable to be set aside and quashed, and the allegation so brought against the petitioner is false and fabricated, and the allegation in the FIR, even if taken its face value and accepted in its entirety, it do not constitute any case against the petitioner, and therefore, it is contended to allow the petition.
5. Mr. B. D. Goswami, the learned counsel for the petitioner, during hearing had reiterated the points mentioned in the petition and submits that the allegations, so made in the petition, even if taken at their face-value failed to disclose commission of any offence by the petitioner and that whatever he did, he did it in good faith and in bona-fide believe and no oblique motive can be attributed for the same. Mr. Goswami also relied upon Point No. xiii, xiv, xv, of paragraph No.23, in the case of Niharika Infrastructure Private Ltd. Vs. Sate of Maharastra and Others reported in LL 2021 SC 211 , to contend that the Court has to see whether the allegation in the FIR discloses commission of cognizable offence or not. It is to be noted here that in the said case, it has been held by the Hon’ble Supreme Court that :-
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allegations in the FIR.
Mr. Goswami, therefore, contended to allow this petition.
6. On the other hand, producing the case diary before this court, Mr. B. Sharma, learned Addl. P. P. submits that the petitioner was arrested on the basis of credible information revealed by the witnesses as well as co-accused and that the investigation is still going on and the materials collected so far in the case diary indicted the petitioner with the offences alleged in the FIR and as such it is not a fit case for quashing and therefore, it is contended to dismiss the petition.
7. On the other hand, Mr. N. Deka, learned counsel for the respondent No.2 submits that there are materials to show complicity of the petitioner with the offences alleged in the FIR and that this is not a fit case to quash the FIR, invoking the provision of Section 482 CrPC and therefore, Mr. Deka contended to dismiss the petition.
8. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also carefully gone through the case diary produced before this court and the case law referred by Mr. Goswami, learned counsel for the petitioner.
9. It appears that the name of the petitioner finds no mention in the FIR and Mr. Goswami, the learned counsel for the petitioner has rightly pointed out this during hearing. But, it now settled by a plethora of decisions of the Hon’ble Supreme Court that the FIR is not the encyclopedia of the entire offence. Reference in this context can be made to a decision of Hon’ble Supreme Court in the case of Neeharika Infrastructure (supra), where in it was held that -
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10. Further it appears that though the name of the petitioner finds no mention in the FIR yet, during investigation his name came into the fore and witnesses and co-accused have implicated him with the offences alleged in the FIR. The investigation is still going on and materials are being collected. Therefore, this Court is entitled to go into the root of the allegations, as held in the case of Neeharika Infrastructure (supra).
11. Again, in the case of Dineshbhai Chandubhai Patel Vs. The State Of Gujarat, reported in (2018) 3 SCC 104 , following earlier decision in State Of West Bengal & Ors vs Swapan Kumar Guha & Ors. , reported in (1982) 1 SCC 561 , it has been held that High Court cannot decide the issue arising out of the case like an investigating agency or/and appellate authority decides, by little realizing that it was exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure.
12. In the case of Swapan Kumar Guha (supra) , it was held that right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on.
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The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power to investigate into cognizable offences.
13. In the instant case, factual foundation of the offences under Section 120(B)/420 IPC are clearly laid in the FIR. Investigation is being carried out and the investigating officer has collected sufficient materials against the petitioner. Therefore, I am unable to record my concurrence to the submission of Mr. Goswami, the learned counsel for the petitioner. And I afraid the ratio laid down in the case of Neeharika Infrastructure (supra) would come into his aid. Instead, it has fortified the case of the respondents.
14. Thus, having carefully considered the submissions of learned Advocates of both sides and also carefully considering the facts and circumstances in the record, I find no merit in this petition and accordingly the same is dismissed. The parties have to bear their own costs.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the High Court can quash an FIR in light of subsequent investigation materials implicating the petitioner even if his name was absent in the original FIR?
Whether the allegations in the FIR disclose commission of a cognizable offence under Sections 120(B)/420 IPC?
Colour shows how this judgement treated each authority
Niharika Infrastructure Private Ltd. Vs. State of MaharashtraReferred¶30
Niharika Infrastructure Private Ltd. Vs. State of Maharastra and Others reported in LL 2021 SC 211
Niharika Infrastructure Private Ltd. Vs. State of MaharashtraReferred¶37
Neeharika Infrastructure (supra)
Dineshbhai Chandubhai Patel Vs. The State Of GujaratRelied on¶41
Dineshbhai Chandubhai Patel Vs. The State Of Gujarat reported in (2018) 3 SCC 104 · Who else cites this
State of West Bengal & Ors vs Swapan Kumar Guha & OrsRelied on¶41
State Of West Bengal & Ors vs Swapan Kumar Guha & Ors reported in (1982) 1 SCC 561 · Who else cites this
2 provisions across 2 enactments
Arup Jyoti Dev Sarma
The State of Assam
Ningthem Mangsatabam
Robin Phukan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
