Himanjan Sarma vs State Of Assam And 2 Ors

Heard Mr. A. Bhuyan, learned Advocate for the petitioner and Mr. D. Sharma, learned Addl. Senior Government Advocate for the respondents

no.1 to 3.

At the outset, it may be mentioned that the matter was heard on 03.02.2022 on the prayer for interim relief. It appeared from the previous orders

passed in the case that all the respondents were represented by the learned Addl. Senior Government Advocate. However, while dictating this order,

it appears from the cause title of the writ petition that a private individual has been arrayed as respondent no. 4 by the learned counsel for the

petitioner by hand. However, in the Central Registry, the names and other particulars of only the respondent nos. 1 to 3 are reflected. Therefore, the

Addl. Senior Government Advocate may not be appearing for the private respondent. Hence, it is necessary that a notice be issued on the private

respondent. Therefore, let a notice returnable on 14.03.2022 be issued on the respondent no. 4. The petitioner shall take steps within 2 (two) days for

service of notice on the respondent no. 4 by registered post with acknowledgment due as well by usual process.

As the prayer for interim relief is for interim protection with a direction upon the State respondents not to take coercive measures against the

petitioner in connection with Fatashil Ambari P.S. Case No. 817/2021 under Sections 120B/406/409/420/469/34 of the Indian Penal Code (IPC for

short), the Court is of the considered opinion that in connection with such a prayer, except for the State, the private respondent need not be heard.

For the purpose of this order, it would be sufficient to mention that in the FIR dated 06.12.2021, which was registered as Fatashil Ambari P.S. Case

No. 817/2021 under Sections 120B/406/409/420/469/34 IPC, the petitioner is named as a beneficiary of having received over-payment of contractual

dues to the extent of Rs.1.10 Crore. In order to avoid burdening the order with detailed submissions made by the respective advocates for both sides,

it would suffice to mention that while the learned advocate for the petitioner had submitted that the petitioner was called to do the work after drawing

up of contract agreement and the payment for paining work of Assam Cricket Association Stadium and that after due satisfaction of the contract

work done and measurements being made by the PWD Authorities, the payment due to the petitioner was released. Nonetheless, on request made by

the Assam Cricket Association, the petitioner had also refunded a sum of Rs.50.00 lakh. Thus, it was submitted that there might be a civil dispute, but

the petitioner is not a criminal and no crime was done by the petitioner as such the ingredients of the offence under Sections 120B/406/409/420/469/34

IPC was not made out. To sustain his submissions, the learned advocate for the petitioner has referred to the materials available in the writ petition

and additional affidavit filed by the petitioner. Accordingly, it is submitted that the petitioner was entitled to interim protection of no coercive action

against the petitioner.

In support of his submissions, the learned advocate for the petitioner has placed reliance on the following cases, viz., (i) Order dated 22.11.2021

by Supreme Court of India in SLP (Crl.) 8788/2021 - Param Bir Singh v. The State of Maharashtra & Ors.; (ii) Order dated 26.10.2021 by

Supreme Court of India in Crl. Appeal 1285/2021 â€" Mitesh Kumar Jha v. The State of Karnataka & Ors.; (iii) Order dated 15.02.2019 by

Supreme Court of India in Crl. Appeal 238/2019 â€" Prof. R.K. Vijayasarathy & Anr. v. Sudha Seetharam & Anr.; (iv) Judgment dated

08.08.2019 by Supreme Court of India in Crl. Appeal 834/2017 - The Commissioner of Police & Ors. v. Devender Anand & Ors.; (v) Order

dated 09.11.2012 by Gauhati High Court in Crl.Rev. Pet. 140/2005 â€" Riju Samanta v. The State of Assam & Ors.; (vi) Harshendra Kumar

D. v. Rebatilata Koley & Ors., (2011) 3 SCC 351; (vii) Order dated 22.12.2021 by Gauhati High Court in Crl.Pet 796/2021 â€" Kowstava

Buragohain v. The State of Assam & Anr.; (viii) Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors., 2021 SCC OnLine SC

315.

Per contra, the learned Additional Senior Government Advocate has opposed the prayer for interim relief. Moreover, by placing reliance on paras

65 and 80 to 82 of the case of Neeharika Infrastructure (supra), it has been submitted that an order in the nature of “no coercive action†was not

warranted as the petitioner has the liberty to avail appropriate remedy by approaching this Court under Section 438 of the Criminal Procedure Code

(CrPC for short) for a prayer for anticipatory bail.

It is seen from the various judgments and orders cited at the Bar by the learned advocate for the petitioner that it is well settled that an FIR can be

quashed by the High Court in exercise of power under Article 226 of the Constitution of India as well as by filing an application for quashing of the

FIR under Section 482 CrPC. Therefore, this order is not required to be burdened with discussions on the cases cited because said legal proposition

has not been opposed by the learned Additional Senior Government Advocate.

Therefore, it is required to be examined whether it would be appropriate for the Court in a composite application filed under Article 226 of the

Constitution of India read with Section 482 CrPC to issue an interim order to the effect that “No coercive actionâ€​ is taken against the petitioner.

It is seen that in a case concerning a co-accused in the present case, i.e. Fatashil Ambari P.S. Case No. 817/2021, this Court in the case of

Kowstava Buragohain (supra), the co-ordinate Bench of this Court while entertaining a Criminal Petition under Section 482 CrPC, had granted the

interim relief of no coercive action to be taken against the petitioner therein till the next date of listing. The other case of Riju Samanta was also one

under Section 482 CrPC.

In the aforesaid context, it would now be appropriate to quote the para-65, 80, 80(xv) to 80(xviii) of the case of Neeharika Infrastructure (supra),

which is as under:-

“65. The aforesaid is required to be considered from another angle also. Granting of such blanket order would not only adversely affect

the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long

time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may

no longer be available. Therefore, in case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for

anticipatory bail under Section 438 Cr.P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr.P.C. being satisfied,

he may be released on anticipatory bail by the competent court. Therefore, it cannot be said that the accused is remediless. It cannot be

disputed that the anticipatory bail under Section 438 Cr.P.C. can be granted on the conditions prescribed under Section 438 Cr.P.C. are

satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged. Still in case a person

is apprehending his arrest in connection with an FIR disclosing cognizable offence, as observed hereinabove, he has a remedy to apply for

anticipatory bail under Section 438 Cr.P.C. As observed by this Court in the case of Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC

453, though the High Courts have very wide powers under Article 226, the powers under Article 226 of the Constitution of India are to be

exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of

the accused persons. It is further observed that in entertaining such a petition under Article 226, the High Court is supposed to balance the

two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it

into Section 438 Cr.P.C. proceedings. It is further observed that on the other hand whenever the High Court finds that in a given case if the

protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending

trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its powers under Article 226 of the

Constitution of India, keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and

justified. However, such a blanket interim order of not to arrest or “no coercive steps†cannot be passed mechanically and in a routine

manner.

*** *** ***

In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would

be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adoptedâ€, during the pendency of the

quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and in what circumstances and whether

the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted†during the

investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not

quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the

Constitution of India, our final conclusions are as under:

*** *** ***

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482

Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not

required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the

investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while

passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the

Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with

circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the

investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should

restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted†and the accused should be relegated

to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in

passing the order of not to arrest and/or “no coercive steps†either during the investigation or till the investigation is completed and/or

till the final report/ chargesheet is filed under Section 173 Cr.P.C., while dismissing/ disposing of the quashing petition under Section 482

Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of

further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article

226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted

and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was

weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted†within the aforesaid parameters, the

High Court must clarify what does it mean by “no coercive steps to be adopted†as the term “no coercive steps to be adopted†can

be said to be too vague and/or broad which can be misunderstood and/or misapplied.â€​

It is seen that in exercise of power to grant bail, whether under Section 438 CrPC or under Section 439 CrPC, the Court calls for the case diary

for the purpose of granting bail and/or for making interim bail absolute.

Without the perusal of the case diary, the Court only has the petitioner’s version of the incident but not what is disclosed in course of

investigation. In this writ petition, the petitioner has not prayed for bail. If an order of bail is granted, the Court granting bail has the inherent power to

impose conditions under which bail has been granted. However, if an order of “no coercive action†is granted in a writ petition, that would be

absolutely vague, it may be misinterpreted to mean as if the petitioner cannot even be examined in course of investigation. Therefore, in order to avoid

any incorrect understanding of the order granting “no coercive actionâ€, following the ratio laid down in the case of Neeharika Infrastructure

(supra), it would be appropriate to give liberty to the petitioner to file an appropriate application for pre-arrest bail, if so advised. In this regard, it is

clarified that the pendency of this writ petition shall not be a bar for the petitioner to seek statutory remedy of seeking bail in accordance with law.

However, considering the concern as expressed by the Supreme Court of India in the herein before cited case of Neeharika Infrastructure (supra)

that an order of “no coercive action†has a potential of misinterpretation, the other cases cited by the learned counsel for the petitioner do not

come to the aid of the petitioner. Accordingly, Court is inclined to refuse such blanket interim protection to the petitioner.

Therefore, in order to ensure that the investigation of the Fatashil Ambari P.S. Case No. 817/2021 is not delayed at this stage, the Court deems it

appropriate to pass appropriate orders to call for the case diary and/or scanned copy thereof only after notice is served on the respondent no. 4 and

after the writ petition is admitted for hearing.

Nonetheless, although the observations made in this para are not related to adjudication of this case, the Court is inclined to observe as follows:-

a. It has been observed that the normal practice followed in this Court that when a matter is filed under Article 482 CrPC, such matters are

listed as a Criminal Petition before the Bench taking up criminal petitions for quashing. In such cases, the State is represented by the

learned Public Prosecutor and/or the Assistant Public Prosecutor of the State, as the case may be.

b. However, in this quashing application filed under Article 226 read with Article 482 CrPC, the same is registered as writ petition and the

State is represented by the Additional Senior Government Advocate.

c. Para-16 under heading “(C) Representation of State in the High Court†under Chapter-I of Part-II of the Law Department Manual

(commonly called as Legal Remembrancer Manual), relating to Criminal Rules, it is provided that “The Senior or one of the Junior

Government Advocates will conduct criminal prosecution in the High Court.†In Part-III of the Law Department Manual, the “Rules for

the Government Advocates of the Assam High Court†is provided for. The same appears to be only for the Senior and Junior Government

Advocates.

d. In the Law Department Manual, although reference is made for conducting prosecution in criminal matters by the Senior Government

Advocate and Junior Government Advocate(s), but it prima facie appears that the Law Department Manual does not deal with the point as

to whether the Public Prosecutors and Additional Public Prosecutors or the Senior Government Advocate and Junior Government

Advocate(s) have been assigned the duty to appear in quashing applications presented before the High Court either under Article 226 of

the Constitution of India or under Section 482 CrPC.

e. Therefore, in the quest of having clarity in the matter as to whether the quashing applications are to be only conducted by the Senior and

Junior Government Advocates or by the Public Prosecutors and Assistant Public Prosecutors, it is deemed appropriate that the State

Government be asked to respond as to whether the Public Prosecutors or Assistant Public Prosecutors within the meaning of Section 25 of

the CrPC or Senior Government Advocate and Junior Government Advocate(s) should appear for the State before the High Court in

quashing applications.

Be that as it may, the Registry shall examine as to whether those writ petitions, where prayer is made for quashing the FIR or complaint cases,

and/or any other criminal prosecution, etc., be listed before the Bench assigned to adjudicate criminal petitions for quashing and if the proposition finds

favour of the Registry, the Registry shall thereafter, place the matter before the Hon’ble The Chief Justice for his kind consideration on the

administrative side.

Awaiting service of notice on the respondent no. 4 and response by the State, list the matter on 14.03.2022.