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Judgment
This writ application has been filed by the petitioner invoking jurisdiction under article 226 of the Constitution of India, praying therein for the following
reliefs:-
(a) Quashing/setting aside the entire criminal proceeding, including the FIR in Pakur (T) P.S. case No. 139 of 2020 dated 13.08.2020 registered for
offences punishable under Sections 188/384,35, IPC against the petitioner, which is presently pending in the Court of Chief Judicial Magistrate, Pakur.
(b) Quashing/setting aside the directions contained in the letter no. 1743 dated 19.09.2020(Annexure-14/1);
(c) Commanding upon the respondents not to interfere with in the collection of toll tax by the petitioner at the initial allotted place at Gokulpur, Pakur;
(d) Commanding upon the respondents no. 4 & 5 to exempt the petitioner and his partnership firm, namely M/S Shivam Enterprises from depositing
settlement amount to the extent of loss caused due to the stoppage/discontinuance of collection of toll tax at near Srishti Petrol Pump situated at
Gokulpur, Pakur.
Counsel for the petitioner submits that he is not pressing the prayers made in paragraphs 1(b), 1(c) & 1(d) of this writ petition. He is only pressing
the prayer made in paragraph 1(a) of this petition. Considering the submission of the counsel for the petitioner, this writ petition is only confined to
prayer No. 1(a) i.e. in relation to quashing of the F.I.R. So far as other reliefs are concerned, the petitioner is at liberty to raise the same by filing an
appropriate civil writ petition.
Counsel for the petitioner challenging the F.I.R. submits that from bare perusal of the F.I.R. no offence is made out far less any offence under
Indian Penal Code. He submits that when no offence is made out, a F.I.R. cannot be allowed to sustain and the same would be an absolute abuse of
the process of law. He submits that the Hon'ble Supreme Court in catena of decisions has held that when the averments made in the F.I.R. is taken
on its face value, if no offence is made out, the F.I.R. is liable to be quashed. He also submits that if the entire F.I.R. is read and the facts and the
statement made therein is accepted to be true, without adding or subtracting any fact, it will be very much clear that no criminal offence is made out.
He further submits that there was an ongoing dispute between two government agencies which led to lodging of this F.I.R. and no allegation has been
leveled against this petitioner and in that view also, the F.I.R. is liable to be quashed.
Counsel appearing on behalf of the State submits that from the F.I.R. there is an allegation of illegality and irregularity, thus the allegation needs to
be investigated. He further submits that when there is necessity of investigation, the F.I.R. cannot be quashed.
Since the petitioner has confined his prayer in this writ petition in respect of quashing the F.I.R., keeping in view of the proposition of law I don't
feel to call for any counter affidavit. It is well settled principle of law that if on bare perusal of the written report, a cognizable offence is made out,
which needs investigation, the F.I.R. cannot be quashed. It is well settled that the statement made in the written report on its face value should be
considered and nothing can be added or subtracted from it. A counter affidavit cannot change the nature of the F.I.R. nor can add or subtract any
statement or fact stated in the F.I.R. Since the entire allegation made in the F.I.R. is to be seen, this Court feels that no useful purpose would be serve
to call for a counter affidavit in this case,keeping in view the nature of the relief claimed.
The Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 33 5has laid down the criteria and
guidelines in respect of quashing of F.I.R . The guidelines laid down are as follows:-
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.
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.
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.
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.
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.
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.
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.
Further in the case of Union of India vs Prakash P. Hinduja and Another reported in (2003) 6 S.C.C. 195, the Hon'ble Supreme Court has held that
where the allegations made in the FIR or 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, the F.I.R. can be quashed but this power has to be exercised in a rare case and with
great circumspection.
Thus, from the aforesaid judgments it is clear that the F.I.R. can be quashed only if an offence is made out from it. Keeping in mind the aforesaid
proposition of law, I have gone through the F.I.R. This F.I.R. has been registered under Sections 188, 384 and 34 of the Indian Penal Code upon the
written report given by the Executive Officer Zila Parishad, Pakur addressing to the Officer in- charge, Town Police Station, Pakur. In the F.I.R it has
been stated that M/s Shivam enterprises is collecting toll tax in village Gokulpur, Pakur in spite of collecting it at the toll tax collection center, Nagar
Parishad, Pakur. In the meeting dated 26.05.2016, president of Zila Parishad objected the collection of toll tax in the village. Further in the meeting of
Zila Parishad dated 08.07.2016 all the members of Zila Parishad condemned the same and with full majority it has been decided to transfer the toll tax
collection center in a week. Thereafter, vide letter no. 96, dated 08.07.2020 the Executive Officer, Nagar Parishad was directed to take action and
vide letter no.97 dated 08.07.2020 the Samvedak, Nagar Parishad toll tax collection centre was asked to give reply in this matter. Further in the
meeting of Zila Parishad dated 13.07.2020, the president and vice-president of Zila Parishad taken up the same issue and it was decided that the toll
tax collection centre will be shifted in a week and if the same is not removed lawful action will be taken against the samvedak. Further vide letter no.
116, dated 22.07.2020, the Samvedak, Nagar Parishad toll tax collection centre was again intimated to remove the said toll tax collection centre within
72 hours. Further vide letter no. 117, dated 22.07.2020 the executive officer Nagar Parishad, Pakur was directed to give detailed report, yet till date
the toll tax collection centre was not removed and no written information was given and tax has been collected without jurisdictions and without
following the guidelines.
From the aforesaid averments made in the F.I.R., I find that no criminal offence is made out against the petitioner. The allegations that the toll
collecting unit has not been removed from the rural area to the urban area cannot by any means attract the offences punishable under Section 188 of
the Indian Penal Code. Further from the entire F.I.R., I find that there is no allegation leveled against any person that they are extorting money. There
is no application of Sections 188, 384 and 34 of the I.P.C. in this case. Be it mention here that there is no allegation that the petitioner has collected toll
and misappropriated the same. Thus in view of statement and the fact mentioned in the written report, I find that no offence is made out against the
petitioner. This case squarely falls within the four corner of the law, which has been laid down by the Hon'ble Supreme Court in the case of Bhajan
Lal (supra).
In view of the aforesaid fact, First Information Report being Pakur (T) P.S. Case No. 139 of 2020, pending in the Court of Chief Judicial
Magistrate, Pakur is, hereby, quashed and set aside.
Accordingly, this petition is allowed.