Dismissed

Afser Khan and Anr. v. the State of Assam

Gauhati HC4 Nov 2022Crl.Pet./754/2022

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a petition under Section 482 Cr.P.C. seeking quashing of a charge sheet and bail. The Court held it cannot quash proceedings or grant bail where investigation materials exist, such as search records indicating the accused went missing, as these factual disputes must be resolved at trial.

What did the court decide?

Petition dismissed; parties to bear their own costs; no bail granted.

Afser Khan and Anr. Vs the State of Assam — Cheque Dishonour | Gauhati HC (2022)

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GAHC010151832022

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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./754/2022

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AFSER KHAN AND ANR. S/O MUSLEM KHAN R/O VILL- SEWRACHARA (SHAWRACHARA) P.O. CHIKNI P.S. KALGACHIA, DIST. BARPETA, ASSAM PIN-7881319 2: NUR MAHAMMAD S/O MOTIAR RAHMAN R/O VILL- SEWRACHARA (SHAWRACHARA) P.O. CHIKNI P.S.KALGACHIA DIST. BARPETA ASSAM PIN-78131 VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM

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Advocate for the Petitioner : MD. S ALOM

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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JUDGEMENT AND ORDER (CAV)

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Date : 04-11-2022

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Heard Mr. S. Alom, learned counsel for the petitioners. Also heard Ms. S. Jahan, learned Addl. P.P., Assam for the State/respondent.

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2. This petition, under Section 482, read with Section 401 of the Cr.P.C., is preferred by the two petitioners, namely, Afser Khan and Nur Mahammad for quashing of the charge sheet, submitted by the I.O. in connection with the Baghbar P.S. Case No.255/2014, under Section 489(A)/489(C)/34 of the IPC, wherein the petitioners were declared absconders and also for quashing the criminal proceeding pending before the learned Addl. CJM, Barpeta, in PRC Case No.355/2022 (GR No.4340/2014) and allowing the petitioners to go on bail.

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3. The factual background leading to filing of the present petition may be briefly stated as under:-

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“On 03.07.2014, ASI Surujul Hoque of Mandia Out Post, lodged an FIR with the Mandia Out Post alleging, inter alia, amongst others that they came to know that one Aminul Islam of village Satrakonora, under Baghbar Police Station, has been running a racket of fake currency notes in last few days and on 03.07.2014, he was coming to Mandia Bazar for the said business transaction in a motorcycle bearing Regn. No.AS15D-9463, and while he was asked to stop, he tried to fled away but, the police party arrested him and on being searched, three numbers of fake currency notes of Rs.500/denomination, was found in his money bag, and seized the same in presence of witnesses and during interrogation, he reveals that one Manik Ali of Satbhita village sent him to show the fake currency notes to the customers and fake currency notes of Rs.5 lacs, is available with Manik Ali and in the said business, his elder brother Anowar Hussain and others persons of Kalgachia and Baghbar are also involved.”

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4. Upon the said FIR, the officer-in-charge of the Baghbar Police Station, registered a case, being Baghbar P.S. Case No.255/2014, under Section 489(A)/489(C)/34 of the IPC and investigation was carrying out and after completion of the investigation, the I.O. laid the charge sheet against the present petitioners along with one Aminul Islam and Manik Ali to stand the trial in the Court, under Section 489(A)/489(C)/34 of the IPC, in the Court of learned CJM, Barpeta.

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5. Upon the said charge sheet, the learned Court below has taken cognizance against the present petitioners and against Aminul Islam and Manik Ali and issued process to them to appear before the Court to stand trial.

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6. Being highly aggrieved, the petitioners approached this Court by filing the present petition, for quashing the charge sheet of Baghbar P.S. Case No.255/2014, under Section 489(A)/489(C)/34 of the IPC and also to quash the criminal proceeding, pending before the learned Addl. CJM, Barpeta, and for enlarging them on bail, inter alia on the following grounds, amongst others:-

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(i) That, the I.O. has declared the petitioners as absconder, and there is no legal provision for declaring the accused as absconders by the I.O.;

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(ii) That, the I.O. is bound to maintain entries in the case diary as to how many times he made efforts to arrest the accused persons and without maintaining such record, the I.O. shown the petitioners as absconders in the charge sheet;

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(iii) That, the name of the petitioners find no mention in the FIR and the role applied by them in committing the offence also not been reflected in the charge sheet, by the I.O.;

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(iv) That, the charge sheet is bad in the eye of law, as it is apparent that without making proper investigation, the I.O. has illegally submitted the charge sheet, declaring the petitioners as absconders, which is not tenable in the eye of law;

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(v) That, there is no implication of the petitioners by any of the witness and also by co-accused in respect of involvement of the present petitioners, with the offences alleged in the FIR;

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(vi) That, the I.O. has issued notice under Section 41(A) of the Cr.P.C., directing the petitioners to appear before him on 08.03.2022, at 10:00 A.M., at Baghbar Police Station, but, he had completed investigation and submitted charge sheet on 28.02.2022;

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(vii) That, the I.O. had never attempted to find out the petitioners, who were

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ignorant about filing of the charge sheet against them;

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(viii) That, the charge sheet is not tenable in the eye of law and it is illegal and therefore, it is contended to quash the charge sheet as well as the proceeding;

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7. Mr. S. Alom, learned counsel for the petitioners submits that the I.O. has completed the investigation on 28.02.2022, and submitted the charge sheet, but, he has issued the notice under Section 41(A) of the Cr.P.C., which are enclosed with the petition as Annexure-4 colly, to appear before him on 08.03.2022, and as charge sheet has been submitted on 28.02.2022, the I.O. has no business to issue notice to them to appear before him on 08.03.2022. Mr. Alom further submits that the petitioners were all along available in their place of residence and they were never searched by the I.O. in their residence and they never absconded and that, there is no material to file charge sheet against them and therefore, it is contended to allow this petition.

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8. On the other hand, referring to the materials available in the case diary as well as in the record of the learned Court below, Ms. S. Jahan, learned Addl. P.P., Assam, submits that there are sufficient materials against the petitioners and as such, the charge sheet cannot be quashed and this Court also cannot grant bail to the petitioners, while exercising jurisdiction under Sections 482/401 of the Cr.P.C. and there is no extra-ordinary situation to invoke the aforesaid provisions to grant bail to the petitioner, and therefore, it is contended to dismiss the same.

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9. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the case diary and the record of learned court below.

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10. It appears that the Baghbar P.S. Case No.255/2014, under Section 489(A)/489(C)/34 of the IPC has been registered, based on an FIR, lodged by ASI Surujul Hoque of Mandia Out Post, on 03.07.2014. There is no dispute that the name of the aforesaid petitioners finds no mention in the FIR, which is annexed with the petition as Annexure-1. However, it appears that, during the course of investigation, the I.O. has collected some materials and found involvement of the petitioners with the offence alleged in the FIR and thereafter, the I.O. had

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issued the notice under Section 41(A) of the Cr.P.C., to appear before him.

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11. Having gone through the Annexure-4 series, I find that the I.O. has mentioned therein for appearance of the petitioners before him, on 08.03.2022 at about 10:00 A.M., in the Baghbar Police Station. The said notice, under Section 41(A) of the Cr.P.C. was issued to petitioner No.1, Afser Khan and another notice was issued to petitioner No.2- Nur Mahammad and though the date mentioned in the said notices seems to be 08.03.2022, in fact it is on 08.02.2022, as due to non-appearance of the petitioners and having found them absent in their respective houses, on being searched by the I.O. on 03.02.2022, he laid charge sheet (Annexure-2), showing them as absconder. The materials, collected in the case diary reveals the complicity of the present petitioners with the offence alleged in the FIR. Whether the said materials are sufficient or not, so as to sustain a proceeding against them has to be determined at the time of consideration of charge by the learned Court below. This Court, while dealing with a petition for quashing of the charge sheet under Sections 482/401 of the Cr.P.C., is not entitled to appreciate the materials collected during investigation against the present petitioners. Reference in this context can be made to a decision of the Niharika Infrastructure Private Ltd. Vs. Sate of Maharastra and Others reported in 2021 SCC Online SC 315 and also in the case of State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335.

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12. The petitioners’ case is that they were all along available in their respective houses and the police never made any effort to arrest them and also never visited their house. But, it appears from the case diary that the I.O. has conducted search in their respective houses and the search lists dated 03.02.2022, have been annexed with the petition as Annexure-3 (colly). Thus, the fact that they have not been found in their respective houses on being searched, is disputed here in this case and this Court, while dealing with a petition under Section 482/401 of the CrPC, cannot adjudicate the disputed question of fact. The same has been well settled by the Hon’ble Supreme Court in the case of R.P. Kapur Vs. Sate of Punjab, reported in AIR 1960 SC 866, and in the case of Bhajan Lal (supra) and also in the case of State of Bihar vs. P.P. Sharma, reported in 1992 Supp (1) SCC 222 and also in the case of Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq, reported in (2005) 1 SCC 122 .

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13. Again in the case of Mohd. Akram Siddiqui v. State of Bihar , reported in (2019) 13 SCC 350, where it has been held as under:-

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“ 5. Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung v. Essem Chemical Industries; State of Haryana v. Bhajan Lal and Harshendra Kumar D. v. Rebatilata Koley to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered.”

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14. Thus, from the aforesaid discussion it becomes clear that this Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegation made in the FIR as well as in the charge sheet against the petitioners. And as such, it cannot be said that there is no material in the charge sheet against the petitioners and the facts, at this stage, are hazy and are also disputed. Besides, they could not make out any exceptional circumstance to interfere with the case. The factual foundation of the offence alleged in the FIR and the charge sheet, whether sufficient to disclose the ingredients of the offence, as alleged are to be considered at the stage of trial and not at this stage.

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15. This Court, while dealing with a petition under Section 482/401 of the CrPC, cannot grant bail to the applicants, as prayed for and in this regard, the petitioners may approach the appropriate Court, by filing appropriate petition. I have also considered the submission of learned Advocates of both sides and I find sufficient force in the submission so advanced by Ms. S. Jahan, the learned Addl. P.P., Assam for the State/respondent.

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16. In view of above, I find no merit in this petition and accordingly, the same stands dismissed. The parties have to bear their own costs.

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JUDGE

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Comparing Assistant

Afser Khan and Anr. v. the State of Assam

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Afser Khan and Anr. v. the State of Assam

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