Patna HC Quashes Criminal Case, Finds FIR a Counterblast to Earlier Dispute [Read Order]

Patna: The Patna High Court has quashed an order taking cognizance against four persons for offences under the Indian Penal Code and the Arms Act, holding that, when viewed cumulatively, a final report finding the occurrence false, a connected Arms Act case against the informant and a pending sanction objection raised substantial doubt about the bona fides of the prosecution, which was found to be a counterblast attracting the inherent jurisdiction under Section 482 CrPC.

Justice Rana Vikram Singh allowed the application of Md. Moajjam, Md. Hasim, Md. Mojibuddin and Sajid Alam, who challenged the order dated 28.10.2015 of the Judicial Magistrate, 1st Class, Begusarai in G.R. Case No. 5420 of 2013 arising out of Bakhari P.S. Case No. 320 of 2013, which took cognizance under Sections 143, 341, 323, 504 and 379 IPC and Sections 25(1-B)(a)/26 of the Arms Act. They also challenged the Additional Sessions Judge’s order of 21.03.2017 in Criminal Revision No. 520 of 2015, dismissing their revision.

The informant, Abdul Halim, alleged that on 09.12.2013, while carrying ₹80,000 for labourers’ wages, he was intercepted near the Idgah by the four petitioners on a motorcycle, threatened with firearms and robbed of the cash, and that a pistol fell from petitioner No. 1 during the occurrence and was handed to the police. The investigating officer submitted a final form of 31.03.2015, finding the occurrence false and recommending prosecution of the informant under Sections 182 and 211 IPC. On his petition, the Magistrate differed from the police report and took cognizance.

For the petitioners, Advocate Pritish Kumar Lal argued that cognizance could not be taken against a final report holding the case false, and that prosecution under the Arms Act lacked mandatory prior sanction under Section 39. The State, through APP Jharkhandi Upadhyay, and the informant, through Advocate Ajay Kumar Thakur, argued that the Magistrate could differ from the police report and that the revisional court had rightly left the sanction objection for the stage of charge.

The Court accepted that a Magistrate is not bound by the investigating officer’s opinion, but held that the power must be exercised with judicial application of mind. The mere filing of a petition by the informant “does not, by itself, establish the truthfulness of the allegations”, and the materials must disclose sufficient grounds for proceeding.

The Court then set out the connected facts. The informant, who was the Mukhiya of the panchayat, was himself an accused in Bakhri P.S. Case No. 55 of 2005, in which a charge-sheet under Sections 420, 409, 120B and 386 IPC was filed on 22.04.2014. He was also named in Bakhri P.S. Case No. 321 of 2013, registered for an alleged assault on an enquiry team after a complaint by the petitioners’ family against a fair price dealer. The investigating officer found that the pistol produced by him belonged to him and had been planted to implicate the petitioners, and on the Superintendent of Police’s direction, Bakhri P.S. Case No. 232 of 2014 under Sections 25(1-B)(a)/26 of the Arms Act was registered against him, with a charge-sheet filed on sanction of the District Magistrate. Cognizance of that case (order of 05.08.2016) was later quashed by this Court on 13.04.2018 in Cr. Misc. No. 11048 of 2017, but with a direction that its charge-sheet be treated as a further report under Section 173(8) CrPC in Case No. 320 of 2013, and its record form part of the latter.

The Court therefore noted that two FIRs were lodged for recovery of the same pistol, one by the informant and the other against him, and that the present case was found patently false, with the accusations lacking any “cogent and credible evidence” connecting the petitioners to the crime. On sanction, it held that Section 39 of the Arms Act is statutory, and that where a statutory bar is demonstrated from the record, it cannot be “invariably postponed” to the stage of charge without examining its legal effect.

Relying on State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335), categories (3) and (7), and Eicher Tractor Ltd. v. Harihar Singh (2008) 16 SCC 763, where proceedings initiated as a counterblast were quashed, the Court held:

“[A]lthough the existence of previous disputes between the parties, by itself, is not sufficient to quash a criminal proceeding, the Court is required to examine whether the prosecution, viewed in its entirety, is a genuine invocation of criminal law or has been initiated with an ulterior motive to wreak vengeance upon the accused.”

It added that the power of a Magistrate to differ from a final report cannot be exercised “mechanically or in disregard of circumstances which have a direct bearing upon the bona fides of the prosecution”, and that the inherent jurisdiction is not exercised merely because an accused disputes the allegations. The revisional order, it said, did not adequately address the cumulative effect of the retaliatory prosecution plea and the connected proceedings.

Allowing the application, the Court quashed the order of 28.10.2015 and the revisional order of 21.03.2017 and all criminal proceedings from Bakhari P.S. Case No. 320 of 2013 insofar as they relate to the petitioners.

Appearances:

For the Petitioners: Mr. Pritish Kumar Lal, Advocate.

For the State: Mr. Jharkhandi Upadhyay, APP.

For the Informant (Opposite Party No. 2): Mr. Ajay Kumar Thakur, Mr. Purushottam Kumar and Mr. Abhijeet Chandra, Advocates.

Case Title: Md. Moajjam & Ors. vs. The State of Bihar & Anr., Criminal Miscellaneous No. 26482 of 2017

[Read Order]