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TMI Blog2024 (6) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ngeance. 3. The background facts, leading to filing of the present petition, is briefly stated as under:- "The complainant/respondent No. 2, Shri Chittaranjan Nath, being the proprietor of Pawan Enterprise, Tezpur had executed construction works in (i) NF Railway, Maligaon, (ii) Central Assam Electricity Distribution Company, (iii) Assam Power Distribution Company,(iv) Tezpur Municipality Board, (v) Apeejay Tea Limited, during the year 2013 to 2017, and for the same he raised bills from the said establishments and also received payment. Thereafter, on the basis of receipt of payment, the Additional Commissioner, Central Goods and Service Tax, Dibrugarh raised a demand of service tax, amounting Rs. 48,43,034/, vide adjudication order No. 02/ADC/ ADJ/ST/COMMR/DIB/18/2021-22, dated 23.07.2021. Being aggrieved by the said order, the complainant/respondent No. 2 had filed one appeal before present petitioner, the then Commissioner (Appeals), CGST, Central Excise & Customs, Guwahati on 19.10.2021. Hearing of the said appeal took place before the petitioner, but, he did not pass any order and demanded an illegal gratification of Rs. 4,50,000/ and finally agreed to accept bribe of Rs. 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of State of Haryana vs. Bhajanlal reported in 1992 Supp. (1) SCC 335, and it is an abuse of the process of law by the respondent No. 2; (ii) That, the respondent No. 2 had ulterior motive to falsely drag the petitioner as he was already facing tax liability of Rs. 1,55,77,366 and 20% interest thereon and he had received show cause notice dated 24.08.2013 originally proposing a service tax liability of Rs. 77,88,683 along with 124% mandatory penalty and he had suppressed this fact deliberately and hoodwink the respondent No. 1 into an illusion; and the tax evading antecedent of the respondent No. 2 cast a doubt about the veracity of allegations leveled by him against the petitioner; (iii) That, the respondent No. 1 had violated almost all the relevant provision of law relating to filing of FIR, arrest, personnel search, pre-trap and post trap proceeding. There is delay in lodging the FIR and while the first demand of bribe was made on 24.08.2022, the FIR was lodged on 14.09.2022, after a period of 20 days and reason for delay was not mentioned in the FIR and the respondent No. 1 had failed to enquire about the same which cast serious doubt about the veracity of the al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no acquaintance with the so called courier agent and other persons arrayed in the FIR and that section 120B IPC is not attracted herein this case. Besides, there is no iota of evidence to show that the so called recovery is attributable to any demand or acceptances, which are the twin requirement to attract section 7 of the Prevention of Corruption Act, made by the petitioner; and that no prima-facie offence is made out or disclosed against the petitioner for the offence u/s 120B IPC and section 7 or 7A of Prevention of Corruption Act; (vii) That, the case of the petitioner falls in the category of rarest of the rare cases as it involves the personal liberty and dignity of the petitioner as provided in Article 21 of the Constitution of India, which needs to be restored; (viii) That, the inherent power of this court under section 482 Cr.P.C. has to be exercised to prevent abuse of the process of the court and to ensure justice; 5. The respondent CBI has filed objection petition wherein it is stated that as per Memo of Arrest the petitioner was arrested on 29.09.2022 which was prepared in presence of two independent witnesses and the petitioner also put his signature on 29.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Prevention of Corruption Act and the circumstance of the case requires prior approval; (iii) That section 41A Cr.P.C. has not been complied with and as such it is an abuse of the process of law; (iv) That, there is delay in granting prosecution sanction under section 19 of the P.C. Act, and the sanction order was issued in the month of August 2023 whereas time line is only four months in view of decision of Hon'ble Supreme Court in Vineet Narain & Others vs. Union Of India & Another reported in 1998 (1) SCC 226; (v) That foundational facts are necessary to establish a prima facie case and in the case in hand the same are shaky and the complaint has been filed on personal grudge; (vi) That, the present case is false and fabricated and it falls in the category of cases mentioned in 1,2,3,6 & 7 of paragraph No. 102 of the decision in Bhajanlal (supra); 6.1. Ms. Bordoloi, learned counsel for the petitioner, has also referred following case laws to bolster her submission:- (i) State of U.P. Through CBI SPE, Lucknow v. R.K. Srivastava & Anr., reported in (1989) 4 SCC 59; (ii) Indian Oil Corpn. v. NEPC India Ltd. & Ors., (2006) 6 SCC 736; (iii) Narendra Mishra v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-A is not required as demanding of bribe by the accused/petitioner is not at all related to discharging of official duty; (iv) That, no preliminary enquiry is required to be conducted and the same is not mandatory in view of already settled principles of law so laid down in the case of Central Bureau Of Investigation (CBI) vs. Thommandru Hannah Vijayalakshmi @ T.H., 2021 AIR OnLine 2021 SC 869 (v) That, sanction to prosecute the accused/petitioner was granted by the President; (vi) That, some of the accused namely, Rajendra is a hawala agent and he was arrested in this case; (vii) That, there is no merit in this petition and the same has to be dismissed; 8. In her reply to above, Ms. Bordoloi submits that the informant was not present at the time of hearing of the appeal preferred by him and that the informant had evaded tax and he had filed the case with mala-fide intention. Ms. Bordoloi, further submits that no prima-facie case is made out as foundational facts are necessary to establish a prima-facie case which are shaky herein this case. Therefore, Ms. Bordoloi has contended to allow this petition. 9. Having heard the submission of learned Advocates of both sides, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h would govern the exercise of this inherent jurisdiction. 27. This Court then carved out some exceptions to the above stated rule. These are: (i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings in respect of the offences alleged. Absence of the requisite sanction may, for instance, furnish cases under this category; (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not; (iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legations 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 Act concerned (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 Act concerned, 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. 29. The ratio of Bhajan Lal's case has been consistently followed in the subsequent judgments. In M/s Zandu Pharmaceutical Works Ltd. V. Mohd. Sharaful Haque (supra), this Court referred to a large number of precedents on the subject and observed: "11....The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. In the aforementioned judgment, this Court set aside the order of the Patna High Court and quashed the summons issued by the First Class Judicial Magistrate in Complaint Case No. 1613) of 2002 on the ground that the same was barred by limitation prescribed under Section 468 (2)) Cr.P.C. 30. In Ramesh Chand Sinhas case (supra) this Court quashed the decision of the Chief Judicial Magistrate, Patna to take cognizance of the offence allegedly committed by the appellants by observing that the same was barred by time and there were no valid grounds to extend the period of limitation invoking section 473 Cr.P.C. 11. Thereafter, in paragraph No. 31 of the judgment Hon'ble Supreme Court has held as under:- "A careful reading of the above noted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; ********** ************* (x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; *********** ************** xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in conviction or acquittal. The requirement is that the complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, then the inherent powers under Section 482 of the Code can be invoked and quash the same. 18. Bearing the above principles in mind, now an endeavour will be made to find out whether any case for quashing the criminal proceeding arising out of the First Information Report No. RC0172022A0007, dated 28.09.2020, registered under sections 120B IPC read with section 7 and 7 (A) of the Prevention of Corruption Act, 1988, is made out or not. 19. Here in this case, I find that following facts and circumstances have emerged from a bare perusal of the First Information Report, No. RC0172022A0007, dated 28.09.2020:- (i) The respondent No. 2, Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 7 & 7A of Prevention of Corruption Act, 1988 read with section 120 (B) IPC; (xiv) Thereafter, on 17.02.2023, a supplementary charge sheet was filed against accused Shri Rajendra @ Amol D. Medhekar (A-2), to stand trial under section 120-B/419 IPC and under section 7 & 7 A of Prevention of Corruption Act and under section 66B of Information Technology Act, 2000. 20. The scanned copy of the case record of the learned court below also indicates that the I.O. had examined several witnesses and collected sufficient incriminating materials against the present petitioner, in support of the allegations made in the FIR and thereafter submitted charge sheet against the present petitioner along with three others. 21. These facts and circumstances, as enumerated in paragraph No. 14 above, that have emerged from a bare perusal of the FIR and from the scanned copy of the record of the learned court below, goes a long way to indicate the foundational facts constituting the offence under section 120B IPC and section 7 and 7A of the Prevention of Corruption Act are clearly made out against the present petitioner. And if we consider the submission of Ms. Bordoloi, in the light of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r:- "In view of the above discussion, we hold that since the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, PC Act or even the CBI Manual, for this Court to issue a direction to that affect will be tantamount to stepping into the legislative domain. Hence, we hold that in case the information received by the CBI, through a complaint or a "source information" under Chapter 8, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence." 26. It is to be noted here that Hon'ble Supreme Court has considered its earlier decision in Lalita Kumari (supra), in the above noted case. Thus, it appears that preliminary enquiry is no longer mandatory when the FIR or complaint discloses commission of a cognizable offence and as such this court is unable to agree with the submission of Ms. Bordoloi, learned counsel for the petitioner. On the other hand, I find substance in the submission of Mr. Haloi, the learned counsel for the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandates that the extended period can be granted only for one month after reasons are recorded in writing. There is no further extension. The fourth proviso, which empowers the Central Government to prescribe necessary guidelines for ensuring the mandate, may also be noted in this regard. It can thus be concluded that Parliament intended that the process of grant of sanction must be completed within four months, which includes the extended period of one month. 31. If it is mandatory for the sanctioning authority to decide in a time-bound manner, the consequence of non-compliance with the mandatory period must be examined. This is a critical question having no easy answer. In Subramanian Swamy (2012) 3 SCC 64, this Court suggested that Parliament may consider providing deemed sanction if a decision is not taken within the prescribed period. The appellant herein contends the very opposite that the criminal proceedings must be quashed if the decision is not taken within the prescribed period. 32. In the first place, non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceedings because the prosecution of a public servant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that the complainant/respondent No. 2 had implicated the petitioner falsely as he was already facing tax liability of Rs. 1,55,77,366 and 20% interest, yet, such a plea, which appears to be an ex-facie a defence plea that has to be considered at the stage of trial. It is worth mentioning herein this context that in the case of State of Bihar v J.A.C. Saldhana and Ors., reported in (1980) 2 SCR 16 Hon'ble Supreme Court has held that when the information is lodged at the police station and an offence is registered, the mala fides of the informant would be of secondary importance. It is the material collected during the investigation which decides the fate of the accused person. Same principle is echoed in the case of M/s Zandu Pharmaceutical Works Ltd. vs. Md. Sharaful Haque & Anr. reported in 2005 (1) SCC 122, also wherein Hon'ble Supreme Court has held that when an information is lodged at the police station and an offence is registered, then the mala-fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the info ..... X X X X Extracts X X X X X X X X Extracts X X X X
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