Dr. Aridhenu Kr. Dey Vs. the State of Assam and anr. - Court Judgment

Excerpt:
- - the ayodhya incident of 6th december, 93 had impact all over the country including nagaon district in assam and hojai constituency was also badly affected by riot. the petitioner accordingly accompanied by a good number of police officials including the senior police officers and with relief materials left for hojai town at 8 a. the petitioner being a cabinent minister is always accompanied by his security staff as well as personal assistants and others and while he goes out of station, the programmes are fixed and the same are informed to the district as well as sub-divisional authorities including police officials in advance. as the situation was very tense in the district, particularly in his constituency the petitioner was provided with tight security accompanying with a good..... m. sharma, j.1. this petition has been filed by the petitioner dr. a.k. dey, who is the minister-in-charge of food and civil supplies, govt. of assam against the order dated 1 -2-93 in cr case no. 59c/93 taking cognizance of the case and issuing warrant of arrest and also for quashing the entire proceeding in the abovementioned case pending before the judicial magistrate, ist class, hojai.2. the abovementioned case was registered on the basis of a complaint lodged by one famrul islam, opposite party no. 2 alleging killing of one abdul haque by the petitioner with a small gun, taking out from his pocket, in presence of his security guards and escort parties.3. as transpired from the complaint the occurrence took place on 9-12-92 but the complaint was lodged before the judicial magistrate.....

Judgment:

M. Sharma, J.

1. This petition has been filed by the petitioner Dr. A.K. Dey, who is the Minister-in-charge of Food and Civil Supplies, Govt. of Assam against the order dated 1 -2-93 in CR Case No. 59C/93 taking cognizance of the case and issuing warrant of arrest and also for quashing the entire proceeding in the abovementioned case pending before the Judicial Magistrate, Ist Class, Hojai.

2. The abovementioned case was registered on the basis of a complaint lodged by one Famrul Islam, opposite party No. 2 alleging killing of one Abdul Haque by the petitioner with a small gun, taking out from his pocket, in presence of his security guards and escort parties.

3. As transpired from the complaint the occurrence took place on 9-12-92 but the complaint was lodged before the Judicial Magistrate on 1 -2-93. The reason for delay in filing the complaint was stated that on 12-12-92 the complainant filed FIR with the police, but the same was not accepted asking him to file it after the 'normalcy' is restored and that on subsequent date also same was not accepted and thereafter the complaint was filed. Apparently no date was mentioned of the subsequent ejahar and there was no mention of police station in which FIR was sought to be lodged.

4. The backdrops of the circumstances before filing the complaint petition is required to be referred to understand the atmosphere which led to the alleged occurrence.

5. The petitioner is a permanent resident of Hojai town in the district of Nagaon and was elected to the State Assembly from the Hojai Assembly Constituency and was inducted in cabinet as Minister-in-charge of Food and Civil Supplies and has been functioning as such. The Ayodhya incident of 6th December, 93 had impact all over the country including Nagaon district in Assam and Hojai constituency was also badly affected by riot. Rioting took place in various villages of the Hojai constitutency which is a very sensitive area. As the MLA of the constituency the petitioner after consultation with his cabinet colleagues proposed to visit the district and his constituency. He left Guwahati oh 8-12-92 evening and reached Hojai at night and halted there. The petitioner accordingly accompanied by a good number of police officials including the senior police officers and with relief materials left for Hojai town at 8 a.m. on 9-12-92-and reached Gopalnagar and visited the affected area; at about 9.15 a.m. left Gopalnagar for Doboka and reached Doboka at about 9.45 a.m. and visited the affected area and also went to the Police Station at Doboka. The petitioner being a cabinent Minister is always accompanied by his security staff as well as Personal Assistants and others and while he goes out of station, the programmes are fixed and the same are informed to the district as well as Sub-divisional authorities including police officials in advance. Petitioner's proposed visit was accordingly communicated to the authorities concerned. As the situation was very tense in the district, particularly in his constituency the petitioner was provided with tight security accompanying with a good number of police officials.

6. As stated above the complaint petition was lodged on 1-2-93 alleging killing of one Abdul Haque, a relation of the complainant by the petitioner which occurred on 9-12-92 at about 9/9.30 a.m. Repetition of the contents of the complaint are necessary to appreciate the allegations made therein.

On 9-12-92 at about 9 a.m. the opposite party No. 2 along with one Mainul Haque were going to the pharmacy of Binandi taking a malaria patient, one Abdul Haque. As the pharmacy was closed they met witness No. 1 Abdul Kadir and No. 2 Abdul Jabbar. Thereafter all five of them left for Jamunamukh Hospital and while they were about to reach the LP School of Baligaon village they heard sound of car. At that time Abdul Haque (victim) sat to urinate and while the complainant and other witnesses were waiting under cover nearby for Abdul Haque three motor car came and stopped near Abdul Haque. Thereafter calling Abdul Haque, accused No. 1 gave him a blow and the other accused started to beat him with lathi. As Abdul Haque ran away, a police personnel caught him and started hitting him by the butt of a gun and as Abdul Haque held the gun the accused No. 1 shouting loudly 'mia, you have such audacity', took out a small gun from his pocket and pressing it one the back of the body of Abdul Haque shot at him and Abdul Haque died then and there. Thereafter the dead body of Abdul Haquewas put into, the car of accused No. 2 and they left. It has been stated in the complaint that the complainant and other witnesses saw the occurrence from about 10/12 nals, that the murder does not fall in the purview of 'his' official duty. That on 13-12-92, as stated in the complaint, the complainant submitted a written ejahar but the police station refused to register the same and asked him to submit it after the normalcy is restored, that subsequently 'they' refused to accept the ejahar and as such filing of the complaint was delayed.

7. On receipt of this complaint the Judicial Magistrate recorded the statement of the complainant and the three witnesses and thereafter took cognizance of the complaint Under Section 302/201/34, IPC against the petitioner and two other police officials one of whom is the Circle Inspector of Hojai Sub-division and issued warrant of arrest as aforesaid.

8. Mr. N.M. Lahiri, learned senior counsel for the petitioner strenuously debated the non-application of mind of the Judicial Magistrate, Ist Class in taking cognizance of the case, as the entire complaint petition in its entirety, per se, was suspicious and absurd if it was taken at their face value, and if accepted in their entirety it would clearly show that allegations did not constitute the offence alleged, more so, when the parrot like statements made by the witnesses ought to have raised suspicion in the mind of the Magistrate to the commission of murder. He has pointed out that killing of one Abdul Haque by the petitioner, who is the MLA of the constituency, with a small gun in presence of many persons in the daylight, that too in another constituency (Jamunamukh) which is adjacent to the petitioner's constituency, in the aftermath of the tense situation arising out of demolition of Babri Masjid is not only absurd but improbable. Mr. Lahiri has further urged the Court to examine the manner by which the petitioner was implicated in the occurrence and the manner of taking away the dead body and nondisclosure of such a heinous occurrence to anybody by the complainant and the witnesses and parrot like statements of the witnesses not only showed the absurdity but a concocted conspiracy can be made out with a design to malign the name of the petitioner.

9. Mr. N. Dutta, learned counsel for the opposite parties submitted that at the preliminary stage of the proceeding the Court ought not to interfere with it when the complaint is against murder where an important person has been involved and for public interest and to maintain the public confidence on the Court, there must be a trial of the offence and there cannot be any absurdity that a Minister has been implicated in the occurrence; that a Minister is not somebody above the common man before the eye of law and there cannot be any impossibility that being a Minister he cannot indulge in crime like murder and on that ground the petitioner No. 1 cannot be above law, no matter how powerful he c and how rich he may be and insisted that the High Court in exercise of its inherent jurisdiction should not interfere with the legally conferred jurisdiction of the Court below who rightly had taken cognizance of the case and if really the petitioner is not guilty of the offence he would certainly be acquitted of his charges in the trial.

10. I am in respectful agreement with the submission of learned counsel for the opposite parties, as our Constitution envisages that, no person is above law and all are equal in the eye of law. But at the same time attention has to be given to the grievance of the aggrieved person who may be a rich and influential person as aggrieved persons both influential and non-influential are equal in the eye of law. The offence alleged is a serious one and the persons involved are claimed to be responsible, highly placed police officers and the principal accused is a Minister and the MLA of the constituency. Certainly Court is not going to take special consideration on the status of the accused-petitioner but, the main core of the petition for quashing the proceeding is that the petitioner was implicated due to collusive manipulated conspiracy of a section of people and the proceeding is manifestly attended with mala fide and the proceeding is meticulously instituted for wreaking vengeance With a view to feed political and personal grudge on the basis of a false and vexatious proceeding which has abused the process of law.

11. This Court is aware of the guidelines and the ratio propounded in a catena of decisions of the Apex Court and the law laid down in this respect, that for the purpose of exercising its power Under Section 482, Cr.P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se, that it has no jurisdiction to examine the correctness or otherwise of the allegations. Note of caution is given in a catena of decisions and in the recent case in State of Haryana v. Bhajan Lal, AIR 1992 SC 604:(1992 Cri LJ 527) the Supreme Court cautioned the Courts that - 'we also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that Court will not be justified in embarking upon and enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice.'

12. Keeping in view this, the complaint and the statements of the three witnesses has to be examined whether in the light of the situation given in the petition for quashing the allegations made therein are false and manipulated and extremely improbable and absurd to constitute the ingredients of the offence alleged against the persons holding the high office of cabinet Minister and enjoying high political and respectable status only to injure his reputation and exposing him to social ridicule with a view to take vengeance on account of personal or political and past prejudice of the complainant. In such a situation the question is what would be the remedy that would protect the affected party.

13. Of course, a reading of the complaint may make out a case of offence Under Section 302, I.P.C. but the question is to what extent and whether there would be chance of ultimate conviction if the contentions of the complaint and the depositions of the witnesses are accepted.

14. By order dated 22-7-93 the Court, at the request of the petitioners, called for report which is said to be prepared by the IGP, CID, Assam and the report was accordingly submitted. It is submitted by Mr. Lahiri that the report itself disclosed that the complainant was also accused in many cases including the Sections of TADA and Under Section 302, I.P.C. and his brother was also involved in the offences which showed that the complaint was lodged with ulterior motives. In (1986) 3 SCC 67: (1986 Cri LJ 917), J.P. Sharma v. Vinod Kr. Jain, the High Court quashed the complaint Under Section 482, Cr. P.C. on the basis of subsequent report of CBI which had yet been proved and considered in the background of the allegations made. The Apex Court held that taking all the allegations in the complaint to be true, without adding or substituting anything, at this stage it cannot be said that no prima facie case for trial had been made out; that there is the limit of the power exercised by the High Court Under Section 482, Cr.P.C. But this Court is not certainly going to consider the report though this Court directed the State Government to produce the report at the instance of the petitioner, as this Court Would continue its decision on the basis of the complaint and the statement of the witnesses in the light of the petition for quashing.

15. In this petition State of Assam along with the complainant Was made party. Petitioner's allegations is that he being the popular political figure of the State and a popular Cabinet Minister and as a people's representative he has friends and foe in the area and the persons who are inimically disposed engineered a plan by persuading opposite party No. 2 (complainant), with mala fide intention and ulterior motive to file the complaint in the Court of Judicial Magistrate, First Class, Hojai on 1-2-93. Petitioner's stand is that in the backdrop of the situation, i.e. in the break out of communal violence in the district of Nagaon, which is a very sensitive district of Assam, the imputation of murder against the petitioner is understandable from the statement of the complainant and the witnesses which have not disclosed any offence justifying cognizance of the offence by the Judicial Magistrate; that in that view of the matter the manner and the description of the conduct of the petitioner in committing the murder in the complaint are absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is materials against the petitioner for taking cognizance of the complaint that there is legal bar to take cognizance of the case as no sanction was obtained to take cognizance as the petitioner being a Minister is a public servant Under Section 21 of the I.P.C.; that taking cognizance and issue of non-bailable warrant against the petitioner manifestly attended with mala fide with an ulterior motive to malign the reputation of the petitioner in the eye of the public and wreaking the vengeance on the accused for political and personal grudge.

16. The allegation was killing of a person, namely, one Abdul Haque who was described as a relative of the complainant, but no description was given about the said Abdul Haque. Submission of Mr. Dutta that in a murder case, the description, address and particulars of the victim is not necessary and any one can inform the police about the occurrence and in many cases identification of the victim may not be possible. While this Court cannot deny the force and submissions urged by Mr. Dutta, this Court do not find it possible to brush aside the plea of the petitioner, to consider and examine the allegations which needs consideration for the end of justice. His submission is not accept able on the ground that in this case the victim is known to the complainant and the witnesses and his particulars ought to have been given as allegation was made that the dead body of the said person was taken away by the accused persons which implied the conpealment of evidence. The sequence of the occurrence was moulded in a way which would inspire doubt in the mind of a reasonable man. Certainly complaint may be made by any person of the commission of an offence, particularly an offence like murder. The person making a complaint heed not himself have personal knowledge of the fact, but before issuing process the Magistrate should satisfy himself on proper materials that a case for issuing process has been made out and for that matter, he has to make enquiry in between the wordings and meanings of the complaint and the conduct of the accused and manner of involvement in committing it and most pertinently the situation and circumstances which may occur at the relevant time and this is (he core of the judicial mind which has to be reckoned before taking cognizance of an offence alleged in the complaint.

17. As emerged from the complaint and the statements of the complainant and the witnesses, killing of Abdul Haque by the petitioner with a small gun in presence of many persons at the broad light of the forenoon was done by the petitioner No. 1 on 9 12 92. But no information was lodged either to the police station or to any other officer till 13-12-92 and when on 13-12-92 FIR was alleged to be lodged in the police station police did not accept it asking them to file it later, i.e., after the normalcy is restored. Subsequent statement of filing of the FIR 'many times' (FIR in Assamese) was vague and neither in the complaint nor in the statements of the witnesses, name of the police station and date of filing of the FIRs on many subsequent dates was mentioned and copy of the same was not annexed with the complaint to substantiat the allegation. It is the mandatory provisio of Section 154 that the statutory duty of the police is to accept the information of cognizable offence and proceed accordingly and in case of refusal Under Section 154(3) the person can intimate the Superintendent of Police orally or by registered post, but this was not done in this case. Even admittedly no other person nor even any officer was informed of the murder and the complainant slept over the matter for about three months and submitted the complaint on 1-2-93. Although the other three witnesses, examined on oath claimed to be eye-witnesses, neither disclosed the incident to any other person and kept it secret between them even after witnessing the alleged cold-blooded murder which is against the human nature and inherently absurd. The murder as alleged was committed by the petitioner in broad day light, in presence of his bodyguards, police officers and personnel of escort party. The improbability of the sequences attempted to mould in the complaint is quite large, as the petitioner is the Cabinet Minister and the MLA of the Hojai constituency which is adjacent to the Jamunamukh constituency where the alleged occurrence took place in a manner described in the complaint. The further absurdity is that for two months the complainant and the alleged eye-witnesses kept silent about the murder and thereafter the complainant filed the complaint taking with him all the witnesses. Admittedly there is no petition filed by complainant immediately after refusal of the police to accept the FIR which casts doubt on the genuineness of the allegations made in the complaint. The complaint is very cautiously worded but description of the victim has neither been given in the complaint nor in the deposition of the witnesses and it would not be ascertained as to who is that Abdul Haque and what is the name of the place to which he belonged. Complainant the other witnesses casually mentioned that name and manner of killing was more highlighted than the identification of the deceased. In such a situation when a complaint is filed Under Section 200 the Judicial Magistrate is required to refer the matter to the police Under Section 156(3), Cr.P.C. for investigation and for report, but the Judicial Magistrate took cognizance of the matter with haste and issued non-bailable warrant of arrest immediately. Though there is no bar to take cognizance of offences of such nature, the Judicial Magistrate who is required and expected as a reasonable and just person to take the steps under the law without taking recourse to such a hasty and rash decision of taking cognizance by issuing no bailable warrant of arrest.

18. The object of Section 200, Cr. P.C. is to ascertain whether there is prima facie case against the accused and whether issue of process on such a complaint required to be issued immediately, and whether the complaint is either false or vexatious or intended only to harass a person. This provision of the section cast a judicial responsibility on the Magistrate to ascertain the genuineness of the complaints which ordinarily a prudent, reasonable and just person does and in such a case the Magistrate has to take into his mind the three guidelines, namely, (a) to ascertain the facts of the alleged offence, not given in the written complaint or in the deposition of the witnesses, (b) to see whether there can be a prima facie case, and also (c) to find out whether there is any material which call for trial by a Criminal Court. In a catena of decisions, the Apex Court as well as the various High Courts of the country has made it clear that the examination of the complainant is not a mere formality but an intelligent inquiry into the subject-matter of the complaint carried to enable the Magistrate to exercise his jurisdiction as a reasonable and just person as to whether there is sufficient grounds for proceeding so that liberty of a citizen, enshrined in the Constitution is not unnecessarily curtailed by false and absurd accusations. To avoid this the Magistrate is required, before issue of process, to satisfy himself of the truth or falsehood of the complaint and then see if the matter requires inquiry by a Court of law and in that case, he may propose the issue of process to the accused persons in order to decide whether there is sufficient ground for proceeding or not. Therefore, when the Magistrate before issuing process weighs evidence meticulously, he exceeds his jurisdiction. However, the scope of enquiry varies with the circumstances of each case and it is not contemplated by the Code that it should be exhaustive, (AIR 1980 SC 1780: (1980 Cri LJ 1271), Kewal Krishan v. Suraj Bhan). The statements made by the complainant and the witnesses appears to be parrot like repetition and can be taken as uncorroborated statement of the witnesses to inspire confidence of the Magistrate to find out a prima facie case. In State of Haryana v. Bhajan Lal, (1992 Cri LJ 527) (supra) the Apex Court while examining the requirement of satisfaction of a police officer in charge of police station before entering investigation of a cognizable offence after the stage of registration of the case is equally applicable to a Magistrate taking cognizance of the case Under Section 200, Cr.P.C. Under Section 157(1) the police officer is required to have 'reason to suspect' the commission of a cognizable offence before he proceeded to investigate the facts and circumstances of the case. In that case their Lordships held that (1992 Cri LJ 527 at pp. 540-41)-

'One should not lost sight of the fact that Section 157(1) requires the police officer to have reason to suspect only with regard to the commission of an offence which he is empowered under Section 156 to investigate, but not with regard to the involvement of an accused in the crime. Therefore, the expression 'reason to suspect the commission of an offence' would mean the sagacity of rationally inferring the commission of a cognizable offence based on the specific articulate facts mentioned in the First Information Report as well in the Annexures, if any, enclosed and any attending circumstances which may not amount to proof. In other words, the meaning of the expression 'reason to suspect' has to be governed and dictated by the facts and circumstances of each case and at that stage the question of adequate proof of facts alleged in the first information report does not arise.'

It was further held (at p. 541 of Cri LJ) -

'......it is pellucid that the commencement of investigation by a police officer is subject to two conditions, firstly, the police officer should have reason to suspect the commission of a cognizable offence as required by Section 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as contemplated under Clause (b) of the proviso to Section 157 of the Code.'

This ratio, in my view is equally applicable in case of taking cognizance Under Section 200, Cr.P.C.

19. In the complaint, as disclosed, the conduct of the complainant and his witnesses are questionable and inspires doubts regarding the actual occurrence of the offence. Delay in filing the complaint was not explained satisfactorily as mere allegation of refusal by the police in the police station - when mention of name of the police station did not take place - is not only vague but intention of the complainant and the witnesses are also suspicious and malicious. It is also evident from the complaint and the deposition of the witnesses and from the impugned order wherein it was categorically stated that there is no other witness to be examined on behalf of the complainant which meant that so far prosecution is concerned, the evidence is complete and the same is to be done as per provision Under Section 202(2), Cr.P.C. If the allegations made in the complaint as well as from the deposition of the witnesses are taken at their face value, no prudent, reasonable and just person, properly in law can come to the conclusion that a case is made out for the purpose of taking cognizance, more so, when absurdity and improbabilities are apparent on the face of the allegations. From the conduct of the complainant as disclosed in the complaint as well as in the deposition of the witnesses it can be said that the Court has been utilised for oblique purpose and that there is no chance of ultimate conviction inasmuch as even if the entire prosecution including the deposition on oath by the witnesses is taken as complete there can be no conviction, inasmuch as the case of the complainant will further be weakened in course of trial. When there is bleak chance of conviction on the face of the allegations made in the complaint which is improbable and absurd, the proceeding is liable to be quashed which I accordingly do.

20. In the course of heated arguments Mr. Lahiri pointed out non-consideration of Section 197, Cr.P.C. as the petitioner being a Cabinet Minister is a public servant and that sanction must have been taken before taking cognizance. The question of sanction Under Section 197, Cr.P.C. can be taken at any stage of proceeding/trial, therefore, I prefer not to discuss this point which is not necessary to consider that aspect in this petition when the proceeding is liable to be quashed on the ground of improbability and absurdity of the allegations as transpired in the complaint.

21. In the result the proceeding is quashed and the petition is allowed.