Dismissed

Zahur Alam Alias MD Zahur Alam v. the State of Jharkhand

Jharkhand HC21 Nov 2023Cr.M.P./1187/2019

Case brief

AI extract

What is this about?

The High Court dismissed a criminal miscellaneous petition seeking quashing of an FIR under Section 482 Cr.P.C. The petitioner contested the registration of the FIR against him as a Block Development Officer without sanction under Section 197 Cr.P.C. The Court held that registration of an FIR under Section 156(3) does not require prior sanction, as significance of the latter lies at the stage of t

What did the court decide?

The criminal miscellaneous petition for quashing the FIR was dismissed. The impugned order and criminal proceedings were not quashed.

Zahur Alam Alias MD Zahur Alam Vs the State of Jharkhand — Quashing and FIR | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. M. P. No. 1187 of 2019

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Zahur Alam @ Md. Zahur Alam … …. Petitioner Versus The State of Jharkhand … …. Opp. Party -----

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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----For the Petitioner : M/s A. Allam, Sr. Advocate A.K. Sahay & Asfia Sultana, Advocates For the State : Mr. Achinto Sen, A.P.P. ----- Oral Order

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07 / Dated : 21.11.2023

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The instant criminal misc. petition has been filed for quashing the first information report in connection with Kunda P.S. Case No. 03 of 2014 (G.R. No. 138 of 2014) arising out of Complaint Case No. 39 of 2014 registered under Sections 109, 120B, 220, 409, 420, 427, 467 and 468 of IPC.

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The petitioner was the Block Development Officer and has been made accused no. 5 in the complaint filed by one Santosh Kumar Yadav.

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The case of the complainant/informant in brief is that acting under a criminal conspiracy boundary wall was constructed on a non-existent burial ground and public money was embezzled under a criminal conspiracy. Irony that underlined the episode was that there was no member of the Muslim community to even require a burial ground. Proposal for construction of boundary wall over graveyard measuring an area of 1.5 acres for a sum of Rs. 11,47,000/- was misappropriated on obtaining a fake approval by the Gram Sabha.

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The complaint was forwarded under Section 156 (3) Cr.P.C. on the basis of which Kunda P.S. Case No. 03 of 2014 was registered which is under challenge in the instant criminal misc. petition.

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It is submitted by learned senior counsel for the petitioner that the petitioner is a public servant and without sanction it was not permissible to forward the complaint for registering the police case in view of the ratio laid down by the Hon’ble Apex Court in (2013) 10 SCC 705. The order of forwarding the case for registration is non-speaking and does not reflect the application of mind. Reliance in this regard is placed on (2015) 6 SCC 439.

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Furthermore, plea for quashing the FIR is on the ground that earlier the petitioner was posted as Block Development Officer-cum-Circle Officer at Pratappur Block and he is being persecuted in the present case as the petitioner had acted against some of the persons of the area, who had encroached public land and the complainant is the closely related to them.

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Proposal for construction of boundary wall over the ground was mooted by the Ward

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Member and Mukhiya of said Panchayat and an Aam Sabha was convened and the meeting was headed by Sobha Devi. Thereafter, the villagers selected the name of the beneficiary committee and its President and Secretary namely, Pyare Khan and Md. Akhtar Ansari. The said report was sent to the District Welfare Officer, Chatra by letter dated 28.02.2013. Considering the said recommendation, the work order was issued. It is argued that Drawing and Disbursing Officer is the District Welfare Officer and the Block Development Officer had no role to play in disbursement of the amount. Total amount as sanctioned was Rs. 11,47,000/- whereas the payment was made only for Rs.4,32,000/-.

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Learned counsel for the State has defended the impugned order and submitted that under Section 197 Cr.P.C. there is no requirement of sanction at the stage while lodging the FIR. The matter for consideration of sanction comes at the stage of cognizance. The definite stand of the State taken in para 12 of the counter affidavit is that the payment was made without measurement being done.

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Averments made in the complaint/FIR unfold serious allegations of proposal being mooted for construction of boundary wall around a non-existent burial ground. Such a farcical exercise could not have been conducted by a single individual and logically the Contractors, District Welfare Officer, Executive Engineer, Petitioner who was serving as a Block Development Officer and others have been arrayed as an accused in the present case.

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Matter for consideration is whether this case is fit for quashing the FIR at its very inception.

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Hon’ble Supreme Court has laid down in no uncertain terms the principles to be kept in mind while striking down a FIR in the exercise of extraordinary jurisdiction by this Court. It has been held in Musstt. Rehana Begum Versus State of Assam & Another ; 2022 SCC OnLine SC 82 para 14 (XII) wherein the following principles have been laid down power under Section 482 of the Cr.P.C.:

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14. In Neeharika Infrastructure v. State of Maharashtra, a three-judge Bench of this Court analysed the precedent of this Court and culled out the relevant principles that govern the law on quashing of a first information report under Section 482 of the Cr.P.C. The Court held:

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“57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

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i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

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ii) Courts would not thwart any investigation into the cognizable offences;

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iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

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iv) The power of quashing should be exercised sparingly with circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

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v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

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vi) Criminal proceedings ought not to be scuttled at the initial stage;

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vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

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viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the abuse of the process by Section 482 Cr.P.C.

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ix) The functions of the judiciary and the police are complementary, not overlapping;

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x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

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xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

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xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

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xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

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xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

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xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.”

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In the present case it has not been disputed in the petition that the boundary wall had been constructed on a non-existent burial ground. It is also not disputed that petitioner was posted there at the relevant time. Complainant/informant is a common man and he cannot be attributed with the knowledge of the specific role in the said embezzlement of public fund. It is for the investigating agency to fix liability on the individuals on the basis of the respective roles. It is settled law that FIR is not an encyclopedia and considering the nature of allegations it cannot be expected that entire facts and individual roles can all be set out in it.

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With regard to the plea of wreaking vengeance, on account of anti-encroachment steps taken by the petitioner, no specific case has been referred to where the complainant or the witnesses could be said to have been aggrieved by the actions of the petitioner. Furthermore, this is a matter which will lie in the domain of the defence and cannot be considered at this stage.

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Lastly on the plea that without sanction a complaint cannot be forwarded, the authority relied upon shall not apply in the present case for the reason that the case at hand is for offences committed under the Indian penal code where the requisite sanction is taken under Section 197 of the Cr.P.C. Authority relied upon relates to a case under Prevention of Corruption Act where the sanction is accorded under Section 19. What is barred under Section 197 of the Cr.P.C is cognizance without sanction and not a registration of case.

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It has been held i n Supreme Bhiwandi Wada Manor Infrastructure (P) Ltd. v. State of Maharashtra , (2021) 8 SCC 753

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21. The legal position has been summarised thus: ( Suresh Chand Jain case [ Suresh Chand Jain v. State of M.P. , (2001) 2 SCC 628 : 2001 SCC (Cri) 377] , SCC p. 632, para 10)

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“ 10 . The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all, registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”

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Under the aforesaid facts and circumstance of the case and for the reasons discussed above, this Court is of the view that the plea taken in the present case does not justify the exercise of extraordinary power of this Court to quash the FIR and the criminal proceedings arising therefrom.

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Criminal Misc. Petition stands dismissed. I.A., if any, stands disposed of.

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(Gautam Kumar Choudhary, J . )

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AKT/Satayendra

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Zahur Alam Alias MD Zahur Alam v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Zahur Alam Alias MD Zahur Alam v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

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