Dr. Ajit Kumar Phukan Vs. State of Assam and ors. - Court Judgment

Excerpt:
- - on 23-1-94 there was an incident which can be better described by quoting the fir of that case. if that condition is satisfied, the investigation must go on and the rule in khwaja nazir ahmed case will apply. can be exercised by the high court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list or myriad kinds of cases wherein such power should be exercised. it is further stated that the petitioner in fact offered treatment to the member of banned militant outfit and went to dibrugarh as well to meet dr. but i am not inclined to quash the case against the petitioner pending before the designated court inasmuch as prima facie satisfied on reading of the affidavit and the enquiry report that there are materials. j.n. sarma, j.1. the petitioner herein is a doctor. on 23-1-94 there was an incident which can be better described by quoting the fir of that case.to,the officer-in-charge of jorhat police station.dt. 23-1-94.sir,this is to inform you that on 23-1-94 at about 1-45 a.m. in the night, some miscreants armed with gas cylinder, and, chloroform, dao, iron rod, fire-arms came in atleast 3 vehicles with the intention of looting arms from armory of the borbheta police station and broke the barricade of the armoury. though constables on duty were able to resist the attack, constable late bisturam rai, constable no. 815 dhiren deka and constable no. 500 khagen das were seriously injured by sharp weapons. it is suspected that injured constable no. 500 khagen das had received bullet injury. the injured constables were sent to jorhat civil hospital and the constable no. 500 khagen das succumed to his injuries in the hospital. during this attack, constable no. 28 sailen bora, who was on duty tried to kill me with the fire-arms in his custody though luckily i escaped without any bullet injury. immediately the other policemen who were on duty sounded the distress siren. the miscreants then escaped in their vehicles under the cover of darkness. it is suspected that constable no. 28 sailen bora along with ulfa conspired this attack. constable sailen bora with the terrorists taking with him 16 round of ammunition which was provided to him for the sake of his duty. the terrorist group left their gas cylinder, iron rod, chloroform bottle, acid etc. on the spot. so i request your honour to take necessary action in this regard.yours faithfully,l/nk/399 sd/- mujibur rahman23-1-94.homeguard commander, reserved police department, barbheta, jorhat.the admitted position in this case is that one terrorist was also injured and this doctor examined the terrorist for treatment and thereafter on this ground he was placed under suspension and he was even arrested by the authority. the suspension order later on was withdrawn and now the petitioner is working. this writ application has been filed with the prayer that no case is made out as against the petitioner and as such he should not be harassed in connection with jorhat ps case no. 42/94.2. the law on this point is settled by a decision of the apex court in (1982) 1 scc 561: (1982 cri lj 819) (state of west bengal v. swapan kumar guha. the supreme court pointed out as follows :the police do not have an unfettered discretion to commence investigation under section 157 of the code. their right of enquiry 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 fir, prima facie, discloses the commission of such offence. if that condition is satisfied, the investigation must go on and the rule in khwaja nazir ahmed case will apply. the court has no power to stop the investigation. on the other hand, if the fir does not disclose the commission of a cognizable offence, the court would be justified in quashing the investigation on the basis of the information as laid or received.in this case, a bare reading of the fir will show that there is no allegation directly or indirectly that the petitioner was connected with any offence. rather he discharged his duty as a medical practitioner by following the oath. the next case on this point is 1992 supp (1) scc 335 : (1992 cri lj 527) state of haryana v. bhajanlal) wherein the supreme court pointed out as follows (at page 552 of cri lj) :the following categories of cases can be stated by way of illustration wherein the extraordinary power under article 226 or the inherent powers under section 482, cr. p.c. can be exercised by the high court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list or myriad kinds of cases wherein such power should be exercised.(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.(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.(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 offence and make out a case against the accused.(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.(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.(6) where there is an express legal bar engrafted in any of the provisions of the code or the concerned act (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 concerned act, providing efficacious redress for the grievance of the aggrieved party.(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.as indicated above the present case is squarely covered within illustration no. 2.(iii) (1999) 5 scc 253 : (1999 cri lj 3124) (state through superintendent of police, cbi/ sit v. nalini. that case has been relied on by mr. chaliha in support of his argument. that case need not be discussed. no offence has been made out on the basis of fir quoted above under the terrorist and disruptive activities (prevention) act, 1987 under sections 3, 4 and 15.3. but an affidavit-in-opposition has been filed on behalf of the respondents wherein paragraph 7 it has been stated as follows :-that with regard to the statements made in paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 to the writ petition, your deponent begs to state that as per investigation made by the concerned police on the basis of fir respective police case was registered against the petitioners and the criminal case is pending before the trial court. therefore, at this stage the respondent-authorities did not want to offer comments on the police case and the trial thereof initiated against the petitioner. it is further stated that the petitioner in fact offered treatment to the member of banned militant outfit and went to dibrugarh as well to meet dr. arup kr. baruah, registrar of orthopaedic, assam medical college, dibrugarh and arranged treatment and operation at daamini's nursing home, dibrugarh. the present petitioner did all those works knowingly as revealed in the statement of dr. hiren saikia and dr. arup kr. baruah which was recorded by the registrar and this indicates the involvement to dr. ajit kr. phukan with the banned militant of the organisation. since the criminal case is still pending against the petitioner, therefore, the departmental proceeding was drawn up against the petitioner has not yet been finalised and, therefore, at this stage the question of granting annual increment, promotion etc. does not come at all. it is specifically stated that the name of the petitioner has not still come for consideration of promotion. reinstatement order itself speaks that the reinstatement of the petitioner was without prejudice to the departmental proceeding who was placed under suspension vide order dated 29-7-94.in the report also in paragrah 4 it has been stated as follows :-further in course of investigation it is learnt that accd. c/no. 28 sailen bora sustained bullet injuries on his right hand at the time of occurrence. he was taken to the house of topuram gogoi of jongani moran under mariani p.s. by the extremist. the ulfa activist and their supporters took dr. hiren saikia from mariani to the house of topuram gogoi for the treatment of accd. sailen bora but dr. hiren saikia gave simple prescription and came back, later on dr. ajit kumar phukan gave treatment there and also he went to dibrugarh, dr. arup kr. baruah, registrar of orthopaedic amc and arranged treatment and operation etc. at damani's nursing home, dibrugarh. dr. ajit kr. phukan did these works knowingly. from the statement of dr. hiren saikia and dr. arup kumar bora recorded under section 164, cr. p.c. by magistrate, the involvement of dr. ajit kr. phukan with the banned ulfa activists came to light. so i/o arrested dr. ajit kr. phukan in connection with the case on 16-7-94 and forwarded him in custody as he was found associated with the members of banned ulfa organisation. now he has come out on bail as granted by hon'ble designated court, assam, guwahati.a reply has been filed against that denying all these. this writ court cannot decide the correctness or otherwise of the same. but i am not inclined to quash the case against the petitioner pending before the designated court inasmuch as prima facie satisfied on reading of the affidavit and the enquiry report that there are materials. it is not a case that the petitioner was forced to treat the terrorist under threat. but he on his own went to dibrugarh as alleged for arrangement of treatment of the terrorist.4. accordingly, this writ application shall stand dismissed. i make it clear that the case pending before the designated court shall continue.

Judgment:

J.N. Sarma, J.

1. The petitioner herein is a Doctor. On 23-1-94 there was an incident which can be better described by quoting the FIR of that case.

To,

The Officer-in-charge of Jorhat Police Station.

Dt. 23-1-94.

Sir,

This is to inform you that on 23-1-94 at about 1-45 a.m. in the night, some miscreants armed with gas cylinder, and, chloroform, Dao, Iron rod, fire-arms came in atleast 3 vehicles with the intention of looting arms from armory of the Borbheta police station and broke the barricade of the armoury. Though constables on duty were able to resist the attack, constable Late Bisturam Rai, Constable No. 815 Dhiren Deka and Constable No. 500 Khagen Das were seriously injured by sharp weapons. It is suspected that injured Constable No. 500 Khagen Das had received bullet injury. The injured Constables were sent to Jorhat Civil Hospital and the Constable No. 500 Khagen Das succumed to his injuries in the hospital. During this attack, Constable No. 28 Sailen Bora, who was on duty tried to kill me with the fire-arms in his custody though luckily I escaped without any bullet injury. Immediately the other policemen who were on duty sounded the distress siren. The miscreants then escaped in their vehicles under the cover of darkness. It is suspected that Constable No. 28 Sailen Bora along with ULFA conspired this attack. Constable Sailen Bora with the terrorists taking with him 16 round of ammunition which was provided to him for the sake of his duty. The terrorist group left their gas cylinder, iron rod, chloroform bottle, acid etc. on the spot. So I request your honour to take necessary action in this regard.

Yours faithfully,

L/NK/399 Sd/- Mujibur Rahman

23-1-94.

Homeguard Commander, Reserved Police Department, Barbheta, Jorhat.

The admitted position in this case is that one terrorist was also injured and this Doctor examined the terrorist for treatment and thereafter on this ground he was placed under suspension and he was even arrested by the authority. The suspension order later on was withdrawn and now the petitioner is working. This writ application has been filed with the prayer that no case is made out as against the petitioner and as such he should not be harassed in connection with Jorhat PS Case No. 42/94.

2. The law on this point is settled by a decision of the Apex Court in (1982) 1 SCC 561: (1982 Cri LJ 819) (State of West Bengal v. Swapan Kumar Guha. The Supreme Court pointed out as follows :

The police do not have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of enquiry 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 FIR, prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmed case will apply. The Court has no power to stop the investigation. On the other hand, if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received.

In this case, a bare reading of the FIR will show that there is no allegation directly or indirectly that the petitioner was connected with any offence. Rather he discharged his duty as a medical practitioner by following the oath. The next case on this point is 1992 Supp (1) SCC 335 : (1992 Cri LJ 527) State of Haryana v. Bhajanlal) wherein the Supreme Court pointed out as follows (at page 552 of Cri LJ) :

The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr. P.C. can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list or myriad kinds of cases wherein such power should be exercised.

(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.

(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.

(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 offence and make out a case against the accused.

(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.

(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.

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

(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.

As indicated above the present case is squarely covered within Illustration No. 2.

(iii) (1999) 5 SCC 253 : (1999 Cri LJ 3124) (State through Superintendent of Police, CBI/ SIT v. Nalini. That case has been relied on by Mr. Chaliha in support of his argument. That case need not be discussed. No offence has been made out on the basis of FIR quoted above under the Terrorist and Disruptive Activities (Prevention) Act, 1987 under Sections 3, 4 and 15.

3. But an affidavit-in-opposition has been filed on behalf of the Respondents wherein paragraph 7 it has been stated as follows :-

That with regard to the statements made in paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 to the writ petition, your deponent begs to state that as per investigation made by the concerned police on the basis of FIR respective police case was registered against the petitioners and the criminal case is pending before the Trial Court. Therefore, at this stage the respondent-authorities did not want to offer comments on the police case and the trial thereof initiated against the petitioner. It is further stated that the petitioner in fact offered treatment to the member of Banned Militant Outfit and went to Dibrugarh as well to meet Dr. Arup Kr. Baruah, Registrar of Orthopaedic, Assam Medical College, Dibrugarh and arranged treatment and operation at Daamini's Nursing Home, Dibrugarh. The present petitioner did all those works knowingly as revealed in the statement of Dr. Hiren Saikia and Dr. Arup Kr. Baruah which was recorded by the Registrar and this indicates the involvement to Dr. Ajit Kr. Phukan with the Banned Militant of the organisation. Since the criminal case is still pending against the petitioner, therefore, the departmental proceeding was drawn up against the petitioner has not yet been finalised and, therefore, at this stage the question of granting annual increment, promotion etc. does not come at all. It is specifically stated that the name of the petitioner has not still come for consideration of promotion. Reinstatement order itself speaks that the reinstatement of the petitioner was without prejudice to the departmental proceeding who was placed under suspension vide order dated 29-7-94.

In the report also in paragrah 4 it has been stated as follows :-

Further in course of investigation it is learnt that accd. C/No. 28 Sailen Bora sustained bullet injuries on his right hand at the time of occurrence. He was taken to the house of Topuram Gogoi of Jongani Moran under Mariani P.S. by the extremist. The ULFA activist and their supporters took Dr. Hiren Saikia from Mariani to the house of Topuram Gogoi for the treatment of accd. Sailen Bora but Dr. Hiren Saikia gave simple prescription and came back, later on Dr. Ajit Kumar Phukan gave treatment there and also he went to Dibrugarh, Dr. Arup Kr. Baruah, Registrar of Orthopaedic AMC and arranged treatment and operation etc. at Damani's Nursing Home, Dibrugarh. Dr. Ajit Kr. Phukan did these works knowingly. From the statement of Dr. Hiren Saikia and Dr. Arup Kumar Bora recorded Under Section 164, Cr. P.C. by Magistrate, the involvement of Dr. Ajit Kr. Phukan with the banned ULFA activists came to light. So I/O arrested Dr. Ajit Kr. Phukan in connection with the case on 16-7-94 and forwarded him in custody as he was found associated with the members of banned ULFA organisation. Now he has come out on bail as granted by Hon'ble Designated Court, Assam, Guwahati.

A reply has been filed against that denying all these. This writ Court cannot decide the correctness or otherwise of the same. But I am not inclined to quash the case against the petitioner pending before the Designated Court inasmuch as prima facie satisfied on reading of the affidavit and the enquiry report that there are materials. It is not a case that the petitioner was forced to treat the terrorist under threat. But he on his own went to Dibrugarh as alleged for arrangement of treatment of the terrorist.

4. Accordingly, this writ application shall stand dismissed. I make it clear that the case pending before the Designated Court shall continue.