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2024 (6) TMI 35

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..... n sanction:- The record reveals that after completion of investigation the investigating officer had submitted charge sheet on 25.01.2023, under section 7 7A of Prevention of Corruption Act 1988 read with section 120 (B) IPC against the present petitioner along with Shri Avinash (A-3), Shri Mahabir Jain Shyamsukha (A-4) and supplementary charge sheet on 17.02.2023, 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 1988 and u/s 66B of Information Technology Act, 2000. But, the prosecution sanction, as it appears from the Annexure - A of the additional affidavit of the respondent No. 1, dated 10.11.2023, to prosecute the petitioner was granted by the President on 17.08.2023, vide Sanction Order No. 05/2023. Thus, there appears to be substance in the submission of Ms. Bordoloi, the learned counsel for the petitioner. But, what remains to be seen is what would be the consequence of violation of above timelines and can it be a ground for quashing the proceeding. Be it noted here that the learned counsel for the petitioner has canvassed this issue of violation of timeline as one of th .....

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..... ARANCE:- For the Petitioner :- Ms. N. Bordoloi, Advocate, For the Respondent :- Mr. M. Haloi, Special Public Prosecutor, CBI, Guwahati. JUDGMENT AND ORDER Heard Ms. N. Bordoloi, learned Counsel for the petitioner. Also heard Mr. M. Haloi, learned Special Public Prosecutor for the respondent No. 1. None appears for the respondent No. 2. 2. This petition, under Section 482 of the Criminal Procedure Code, 1973 read with Article 226 of the Constitution of India, is preferred by Dr. Raju Sakthivel, Commissioner (Appeals), Central GST CE, Guwahati, for quashing the First Information Report No. RC0172022A0007, dated 28.09.2022, registered under sections 120B IPC read with section 7 and 7 (A) of the Prevention of Corruption Act, 1988, registered by respondent CBI and its consequential proceedings, being instituted on the basis of a complaint lodged by one Chittaranjan Nath, on personal grudge and vengeance. 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 Ele .....

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..... Act, 1988 and under section 66B of Information Technology Act, 2000. 4. Being highly aggrieved, the petitioner has preferred the present petition on the following grounds:- (i) That, the respondent No. 2 had evaded service tax, claiming false and fraudulent claim for tax exemption for more than three financial years, amounting Rs. 77,88,683/ and thereby caused huge loss to Government exchequer and the CGST Commissionerate had issued show cause and demand Notice to him for the aforesaid amount. Thereafter, he preferred an appeal before the petitioner and that the petitioner had no discretionary power to waive off any service tax liability of the respondent No. 2 and there was no merit in the appeal and as such demanding of illegal gratification from the respondent No. 2 by the petitioner is absurd and improbable and on such count it falls in the category No. 5 of the decision in 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 there .....

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..... he petitioner for not dropping the appeal case and he had strong motive to implicate the petitioner in a false case and that the instant case of the petitioner falls in the 7th category of cases and also in 5th category of cases mentioned in the case of Bhajanlal (supra) and as such the FIR and consequent proceeding deserved to be quashed; (v) That, the petitioner has unblemished service record of 23 years and he cannot become dishonest all of a sudden and he had rendered his service in various capacities in various places in India and he was involved in many projects and his works were widely applauded all over India; (vi) In the present case against the petitioner C-DARE ground i.e. Conspiracy, Demand, Acceptance, Recovery and Evidence are missing and the FIR was filed without any prima-facie material evidence relating to demand and acceptance of bribe and he had 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 .....

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..... d demanded illegal gratification for passing a favorable order. It is also stated that there is no inordinate delay in filing the FIR and investigation was carried out without mala-fide intention and present case does not fall in the category of rare cases to exercise the power under section 482 Cr.P.C., as held by Supreme Court in the case of P. Chidambaram vs. Directorate of Enforcement reported in 2019 (9) SCC 24, and as such it is contended to dismiss the petition. 6. Ms. Bordoloi, the learned Counsel for the petitioner, besides reiterating the points mentioned herein above also argued following points:- (i) That the FIR was lodged on mala-fide ground and that the complainant did not appear in the proceeding pending before the petitioner and as such no demand can be raised; (ii) No preliminary enquiry was conducted as required under section 17-A of the 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 mo .....

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..... oration v. M/s NEPC India Ltd. Ors., reported in 2006 0 Supreme (SC) 645; (xxiii) M.S. Bindra v. Union of India Ors., reported in (1998) 7 SCC 310; (xxiv) Sardul Singh Caveeshar v. State of Bombay, reported in 1957 0 Supreme(SC) 70; 7. Whereas, Mr. M. Haloi, the learned special P.P. has canvassed following points for consideration of this court:- (i) That, from a bare perusal of the FIR, a clear case, under section 7 of the Prevention of Corruption Act, is made out and as such none of the grounds mentioned in paragraph No. 102, in the case of Bhajanlal (supra) is attracted herein this case; (ii) That, there was clear demand of Rs. 4,50,000/ from the complainant by the accused/petitioner; (iii) That, approval for investigation under section 17-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/petitio .....

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..... e High Court s order this Court laid down the following proposition: The inherent power of High Court under Section 561A, Criminal P.C. cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which 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 complain .....

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..... 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 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 Co .....

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..... ulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. It, if 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 by the High Court. 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 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 .....

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..... the FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C. 12. In the case of M/s. Indian Oil Corporation vs. M/s. Nepc India Ltd., Ors reported in 2006 (6) SCC 736 , Hon ble Supreme Court has culled out the relevant principle for the purpose of quashing complaint as under:- : (i) A complaint can be quashed where the allegations 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 .....

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..... e. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power to investigate into cognizable offences. 14. Thereafter, in the case of M/s Neeharika Infrastructure Pvt. Ltd. (supra), by a three Judge Bench of Hon ble Supreme Court has dealt with the issues as under:- ************ *********** (iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, 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) Extraordina .....

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..... urt, is completely incorrect and uncalled for. 17. The proposition of law, which can be crystallized from the discussion made herein above, is that this court cannot embark on an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. Exercise of the inherent powers to quash the proceedings, when it is instituted on complaint, is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end 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 inhe .....

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..... age charge, amounting Rs. 8,000, totaling Rs. 3,83,000/, on 28.09.2022 from the respondent No. 2; (xii) Thereafter, respondent No. 2 had lodged the FIR and upon registration of the same a trap was laid on 28.09.2022, and accused Mahabir (A-4) was caught red handed in his shop No. 29 at Mahabir Bhawan, while demanding and accepting Rs. 3,83,000/ on behalf of the petitioner, from the respondent No. 2; (xiii) Thereafter, having carried out the investigation charge sheet was laid on 25.01.2023, against the present petitioner, Shri Avinash (A-3) and Shri Mahabir Jain Shyamsukha (A-4) to stand trial 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 .....

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..... nce the case of the petitioner. 24. It is to be noted here that in the case of P. Chidambaram (supra) it has been held by the Hon ble Supreme Court that power under section 482 Cr.P.C. is to be exercised in rare cases, where there is a clear abuse of power and non-compliance of the provisions falling under Chapter-XII of the Code of Criminal Procedure. Requirement of Preliminary Enquiry:- 25. The requirement of preliminary enquiry before registration of an FIR has been dealt with by Hon ble Supreme Court in Thommandru Hannah Vijayalakshmi (supra), wherein it has been held as under:- 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 i .....

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..... lines and can it be a ground for quashing the proceeding. Be it noted here that the learned counsel for the petitioner has canvassed this issue of violation of timeline as one of the grounds for quashing the petition. This question stands answered by Hon ble Supreme Court in the case of Vijay Rajmohan v. CBI, reported in (2023) 1 SCC 329, in the following paragraphs:- 30. The intention of Parliament is evident from a combined reading of the first proviso to Section 19, which uses the expression endeavour with the subsequent provisions. The third proviso 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 .....

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..... a consequence of dereliction of duty to giving sanction within the time specified. The way forward is to make the appointing authority accountable for the delay in the grant of sanction. 30. In view of above decision, this court is of the considered opinion that there is no merit in the submission of Ms. Bordoloi, the learned counsel for the petitioner. Accordingly, the same stands repudiated. Mala fides, ulterior motive on the part of the informant to falsely implicate the petitioner:- 31. Though, the learned counsel for the petitioner submits 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 dec .....

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..... minal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini trial. 34. Thus, form the given facts and circumstances on the record and also from the submissions, so advanced by Ms. Bordoloi, the learned counsel for the petitioner, this court is unable to derive its satisfaction that very exceptional circumstances or rarest of rare case is found to be made out by the petitioner so as to invoke the extra ordinary jurisdiction of this court, under section 482 Cr.P.C., as held in the case of Bhajan Lal (supra) and in M/s Neeharika Infrastructure Pvt. Ltd. (Supra). I have carefully gone through the other judgments, referred by Ms. Bordoloi, the learned counsel for the petitioner. There is no quarrel at the Bar about the proposition of law, so laid down in the said cases. But, reference to all those judgments, to the considered opinion of this court, is found to be not necessary to decide the issue so raised in this petition and therefore, detail discussion of the same is found to be not necessary at this stage. 35. In the result, I find no merit in this petition and accordingly, the same stands dismissed. The parties have to be .....

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