Sri Nivas Pandey vs Sri Rangnath Mishra

By way of present petition under section 482 CrPC the three petitioners who has been arrayed as an accused in a complaint case No. 4701C/2009

has sought for passing of the said complaint.

According to the petitioners a title suit No. 183/2009 has been filed by the petitioner No. 3 Smti Lakhpati Devi against one Indu Konwar and

Rameshwar Pandey for declaration of right title interest at Chhapra, Bihar and one Joginder Konwer is the son of said Rameshwar Pandey who is

residing at Beltola, Guwahati. However, they did not know the complainant Rangnath Mishra, but on enquiry came to know that Rangnath Mishra is

working under Joginder Pandey. It is submitted that with a view to weaken the said civil suit and to blackmail the present petitioner Rameshwar Singh

projected the complainant to file false criminal case against them. Accordingly, one Rangnath Mishra (who is not known to the petitioner) filed a

complainant before the court of CJM, Kamrup alleging inter alia that on 26.12.2009 the accused persons came to his contact and introduced

themselves they are coming from Chhapra, Bihar for searching job opportunity of the son of Nivas Pandey and seeing their grievances the

complainant allowed them to stay them in his house but on the next morning all the accused petitioners stated to have fled away from the house of the

complainant along with valuable articles amounting to Rs. 14,900/- and also committed mischief by breaking some household articles. Accordingly, the

complaint Case No. 4701C was registered and cognizance was taken under section 379 IPC and summons was issued to the accused petitioner.

Challenging the aforesaid Criminal Proceeding the present petition has been preferred challenging the legality and validity of the proceeding as well as

cognizance taken by the court.

Notice was issued to the respondent and in turn the respondent also entered his appearance by engaging counsel but none appeared before the

court at the time of hearing of the case.

Heard the submission of Ld. Counsel Mr. Roy for the petitioner who has vehemently submitted that there is no authenticity in the allegation that has

been made against the petitoners as there was no any sort of relation or earlier acquaintance between the parties. That being so, there was no

occasion to stay in the house of the complainant and to commit theft in the house. It has been stated in the petition the petitioner No. 1 was posted as

a storekeeper in Bihar and for ensuing assembly election for the year 2010 the petitioner was posted as a polling officer vide annexure-6 copy of

order. The petitioner No. 3 has also filed an FIR against several persons including one Joginder Pandey for which a proceeding under section 107

CrPC is pending at Chhapra and police report vide annexure-7 reflect the complicity of said Joginder Pandey and said Joginder Pandey is the son of

Rameshwar Pandey against whom civil litigation is also pending between the parties. The police report vide annexure -7 also reveals the complicity of

Joginder and thus it is the case of petitioner that at the behest of said Joginder present complaint case has been filed as a counter blast of title suit No.

183/2009. According to the petitioner they were came to Assam as stated in the complaint petition. The Petitioner No. 1 after retirement from service

reside in Bihar and he has two sons who were serving in Tata Steel Ltd. Jameshadpur and another is studying MBA so the question of searching

appointment in Assam does not arise. Further, it is submitted that petitioner is drawing salary more than 32,000/- and no prudent person will belief that

such a person will come to Guwahati to commit theft of blanket, radio etc. from the house of the complainant. Thus it contend that the present case is

filed malafidely on a concoct story and the complaint at the face value does not prima facie constitute any offence and liable to be quashed and set

aside.

Considered the submission of Ld. Counsel for the petitioner who has referred certain document that has been annexed in the petition vide annexure-

1 is the title suit No. 183/2009 filed by the present petitioner No. 3 against Indu Knowar and Rameshwar Pandey, annexure-2 is the complaint petition,

annexure-3 & 4 are the statement of preliminary witnesses under section 202 CrPC, annexure-5 is the court order, annexure-6 is the order of election

officer appointing the petitioner No. 1 Nivas Pandey as a polling officer in Lakhisarai Assembly Constituency dated 30.10.2010, annexure-7 is the

police report implicating one Joginder Pandey that he along with other persons are harassing the family of the Lakhpati Devi (petitioner No. 3) with

threatening that they will implicate them in different cases and the police suggested for restraining the action of the second party by registering a case

under section 107/116 IPC, Ext-8 is the identity card of the son of petitioner Subhanaryan Pandey, Ext-9 is the money receipt towards the course of

MBA of the another son of Nivas Pandey, annexure-10 & 11 are the bank statement of the Nivas Pandey.

From all the documents relied by the petitioners it transpires that the petitioner are hailing from Bihar and admittedly there is no earlier acquaintance

between the parties. The respondent in his complaint petition has made a story that on the request of the present petitioner (who were not known to

him) he allowed them to stay in his house and on the next morning they were found missing from his house along with the articles like one VIP Suit, 3

Nos. of woolen blanket, one wrist watch, one radio-cum-tape-recorder, three long paint, ladies showal and cash amount Rs. 5,000/- totally valued

about 14,900. The said complainant while giving statement under section 200 CrPC before the court has not stated about the articles stolen away by

the accused petitioner but has only stated about theft of Rs. 5,000. And other witness B. Sahani has also stated about the fact that the three persons

came to the house of the complainant left the house with one suitcase and thereafter he came to know that they have taken away Rs. 5,000 from the

Almirah of the complainant. It is evident that their evidence is so cryptic who even fail to narrate any details of the occurrence. From the statement of

the witness examined by the complainant it will reveal that those three persons (name not known to him) left the house of the complainant with one

suitcase. That being so, that a long list of articles as narrated in the complaint petition cannot be carried in one suitcase. It also sound quite

unreasonable as to why these old aged persons (two complainants and their son will come to Assam from Bihar to commit theft of such household

articles of the complainant). There is no supporting eye witness seve and except the witness No. 2 who is working as a Chowkidar under the

complainant.

The petitioner No. 1 hails from Bihar is a person of status having salary of Rs. 32,000/- per month with two educated son and wife cannot be

reasonably expected to commit theft in the house of complainant in Assam as alleged. It is to be noted that the respondent despite making their

appearance restrained himself from contesting the case, nor they rebut the documents that has been filed by the petitioners or the averment made in

the present petition. In the given circumstances, there is reason to believe about filing of the complaint case at the behest of the third party having

vested interest. Authenticity of the allegation can be a basis for continuation of a criminal proceeding which is not found in the present case. On the

face of the record and in view of the unrebuted documents that has been produced by the petitioners it is discernable that there is a bleak chance of

conviction even if the proceeding continued till end. The very fact that the respondent did not contest the present proceeding despite their knowledge

indicates that they could not refute the authenticity of documents relied by the petitioners.

The Ld. counsel for the petitioner has relied upon the decision of the Hon’ble Apex Court reported in 2013 (3) SCC 330 Rajib Thapar & others

Vs. Madan Lal Kapoor. The scope and ambit of Sec. 482 CrPC has been discussed as below-:

“22 The issue being examined in the instant case is the jurisdiction of the High Court under section 482 of CrPC, if it chooses to quash the initiation

of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These

are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power

vested in the High Court under section 482 of the CrPC, at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it

would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must

always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under section 482 of the Cr.P.C the High Court has to be

fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound,

reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against

the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations

levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant,

without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot

be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a

reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court

would persuade it to exercise its power under section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process

of the court, and secure the ends of justice.â€​

“23 Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for

quashing, raised by an accused by invoking the power vested in the High Court under section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable

quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e.,

the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a

reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/ complainant; and/or the material is such, that

it cannot be justifiably refuted by the prosecution/ complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in

exercise of power vested in it under section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious

court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same

would not conclude in the conviction of the accused.â€​

In the instant case all above steps indicated in the aforesaid pronouncement can be answered in affirmative and this court has no hesitation to

accept the case of the petitioner which is more reasonable and assertive and is sufficient to overrule the factual assertion made by the informant. I

found sufficient force in the submission of learned counsel for petitioner.

Taking into account all above it can be held that further continuance of the aforesaid criminal proceeding will be nothing but abuse of process of

law and it will against the interest of justice if such proceeding allowed to continue, where the authenticity of the allegation is totally at shake. The

story projected by the complainant itself is not acceptable to the sound reasoning and the court of law cannot be used as a medium to fulfill the

personal revenge of a party concerned. In view of all the findings above the impugned proceeding pertaining to the CR Case No. 4701C/2009 is

hereby quashed and set aside.

The petition stands disposed of accordingly. Interim order stands vacated.