Page No.# 1/10 GAHC010174142024 2025:GAU-AS:849 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1056/2024 LOVELY DEBROY D/O LATE MUKUL BHUSAN DEBROY R/O VILL- GANDHINAGAR, P.O. NETAJINAGAR, P.S. RAMKRISHNA NAGAR, DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:PRITI RANI PAUL D/O LATE JOTINDRA MOHAN PAUL R/O VILL- GANDHINAGAR P.O. NETAJINAGAR P.S. RAMKRISHNA NAGAR DIST. KARIMGANJ ASSAM PIN-78816 Advocate for the Petitioner : MR F Z MAZUMDER, Advocate for the Respondent : PP, ASSAM, L TUBIN (R-2),MR. L P BORAH (R-2),MR. J M A CHOUDHURY(R-2) Page No.# 2/10 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 27.01.2025 Heard Mr. F. Z. Mazumder, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent No.1 and Mr. J.M.A. Choudhury, learned counsel for the respondent No. 2. 2. This application is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 praying for quashing of proceeding of PRC Case No. 1389/2024 which is pending before the Court of learned Chief Judicial Magistrate, Karimganj (in short ‘learned CJM’) and the order dated 22.03.2023 passed by said Court in C. R. Case No. 337/2024 and the charge-sheet, vide C. S No.63/2024 dated 31.05.2024. 3. The scanned copy of the LCR has already been received and I have perused the same. 4. Mr. Mazumder, learned counsel for the petitioner, has submitted that initially, a complaint was filed by respondent No. 2 before the learned CJM, Karimganj, with a prayer to take necessary action against the present petitioner under Sections 407/420/506/294 of the IPC. In the complaint, it was alleged that the ration card was originally issued in the name of respondent No. 2's mother. After her mother’s death, respondent No. 2 submitted an application to the concerned authority to issue a new ration card in her name, including her other family members as beneficiaries. Consequently, the ration card was issued in her name on 25.11.2023. However, when respondent No. 2 went to collect the PDS articles, the petitioner allegedly abused her using obscene language Page No.# 3/10 and also cheated her by embezzling the PDS articles issued to her and her family members. 5. In response, the learned CJM, Karimganj, by order dated 22.03.2024, forwarded the complaint to the O.C., R.K. Nagar Police Station, with directions to register a case and submit the Final Form (F.F.) as soon as possible. Pursuant to this order, the O.C. conducted an inquiry and submitted a report, stating that a prima facie case had been established against the present petitioner. Consequently, a charge-sheet was filed under Sections 407/420/506/294 of the IPC. Following the filing of the charge-sheet, the learned Trial Court took cognizance of the case against the petitioner on 27.06.2024 under the aforementioned Sections of the IPC. 6. He further submitted that the petitioner is innocent and that the case against him has not been properly established, despite being charge-sheeted and the Trial Court taking cognizance. He also mentioned that after the issuance of the new ration card in respondent No. 2’s name, a written complaint was filed by one of the beneficiaries, Sheli Rani Paul, alleging that respondent No. 2 fraudulently included other family members as beneficiaries on her ration card and obtained the card by misleading the concerned officials. Due to this pending complaint by one of the beneficiaries and the failure to scan the biometric fingerprint, respondent No. 2 did not visit the petitioner’s Fair Price Shop (FPS) to collect her allotted food grains. The petitioner had also informed the concerned authorities in writing about the situation. 7. Although it has been alleged that the petitioner stole the PDS articles, there is no evidence to substantiate this claim. Moreover, Sections 407/420/506/294 of the IPC does not attract to the petitioner in this case. He further submitted that this is purely a civil dispute that has been wrongly given a criminal color by Page No.# 4/10 respondent No. 2. To establish a criminal case, the intention to commit a crime must be proven. A plain reading of the FIR and its annexures clearly shows that there was no intention on the part of the petitioner to cheat or misappropriate the PDS articles intended for respondent No. 2 and her family members. 8. Accordingly, he prays for the setting aside of PRC Case No. 1389/2024, which is pending before the Court of the learned Chief Judicial Magistrate, Karimganj, along with the impugned order dated 22.03.2023 passed in C. R. Case No. 337/2024 and charge-sheet No. 63/2024 dated 31.05.2024. 9. In support of his submission, he relies on the decision rendered by the Hon’ble Apex Court in the case of Dalip Kaur & Others vs. Jagnar Singh & Anr., reported in (2009) 14 SCC 696, and emphasizes paragraph No. 8 of the said judgment, which reads as follows: “8. Sections 405 and 415 of the Indian Penal Code defining `criminal breach of trust' and `cheating' respectively read as under: 405 - Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". 415. Cheating--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'. An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating.” 10. On the other hand, Mr. Choudhury, learned counsel for respondent No. 2, has submitted that there are sufficient incriminating materials in the complaint Page No.# 5/10 petition to constitute a case under Sections 407/420/506/294 of the IPC against the petitioner. He further submitted that only cognizance has been taken in this case, and the matter has not yet been tried by the learned Trial Court to determine the actual facts of the case. He contended that one of the grounds raised in the petition is that the dispute is of civil in nature, but the enquiry report furnished by the Investigating Officer (I.O) and the materials available in the charge-sheet clearly show that there are sufficient materials to constitute an offence under Sections 407/420/506/294 of the IPC. Moreover, the petitioner has raised certain disputed questions of fact, which must be decided by the learned Trial Court during the trial. 11. In addition to his submissions, Mr. Choudhury relies on the decision passed by the Allahabad High Court in Kamal Pal vs. State of U.P., reported in 2019 SCC OnLine All 3539, specifically referring to paragraph 10 of the judgment, wherein the said High Court observed that disputed questions of fact cannot be adjudicated under Section 482 of the Cr. P.C. He, therefore, submits that the petition should be dismissed at this stage. 12. In this regard, Mr. Barauh, learned Additional Public Prosecutor, has submitted that there are sufficient averments made in the complaint petition to constitute a prima facie case against the present petitioner, and the facts in question should be decided during the trial. He further submitted that in the case State of Haryana & Ors. Vs. Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335), the Hon’ble Apex Court held that criminal proceedings may be quashed if no prima facie case is established from a plain reading of the FIR. However, in the present case, it is clear from the charge-sheet and the complaint petition that there are sufficient materials to constitute a case under Sections 407/420/506/294 of the IPC. Page No.# 6/10 13. After hearing the submissions made by the learned counsels for both sides, I have perused the scanned copy of the LCR, as well as the annexures attached in connection with this case. It is observed that the learned Trial Court, by its order dated 22.03.2024, forwarded the complaint filed by respondent No. 2 for inquiry and directed the submission of the final report (FF) to the Officer-in- Charge (O.C.), R. K. Nagar Police Station. In accordance with that order, the O.C. conducted the inquiry and submitted a report stating that there was a prima facie case against the accused/petitioner. As a result, the charge-sheet was filed under Sections 407/420/506/294 of the IPC. After the filing of the charge-sheet, the learned Trial Court took cognizance of the case against the present petitioner by its order dated 27.06.2024, under the aforementioned Sections of the IPC, upon perusal of the case record and considering the prima facie case against the accused/petitioner. The petitioner contends that the matter is a civil dispute between the parties that was given a criminal color by respondent No. 2, who subsequently lodged a complaint against him, alleging misappropriation and cheating. 14. According to the petitioner, he never misappropriated any PDS articles issued in the name of respondent No. 2. However, the distribution of these PDS articles was delayed due to a dispute involving one of the beneficiaries, who had lodged a complaint against respondent No. 2. Furthermore, the fingerprint of respondent No. 2 could not be scanned, which was required for the registration and distribution of the PDS articles. The petitioner also asserts that he communicated with the concerned authorities regarding the non-supply of the PDS articles to respondent No. 2. However, from the FIR, it is evident that the allegation against the petitioner is that he misappropriated the PDS articles allotted in the name of respondent No. 2 and her other beneficiaries. The Page No.# 7/10 complaint/FIR also reveals that respondent No. 2 lodged a complaint with the Food and Supply Department regarding the non-supply of the PDS articles. She was also heard by the office on 15.07.2022, and the concerned officer directed her to collect the PDS articles from the petitioner. Despite this order and after obtaining a new ration card, respondent No. 2 claims that the petitioner did not provide her with the PDS articles. Furthermore, on 25.11.2023, when she visited the fair price shop, the petitioner allegedly scolded her and refused to provide the articles. The petitioner is therefore accused of misappropriating the PDS articles of respondent No. 2 and her family members over the past 4 to 5 years. 15. Additionally, it is seen that the petitioner communicated with the concerned department only on 10.04.2023, which was after the incident and after the hearing of respondent No. 2 at the Deputy Commissioner's office on 15.07.2022, where she was directed to collect the PDS articles from the petitioner. Based on the entire set of facts and circumstances of this case, and a plain reading of the complaint/FIR, it is evident that there are sufficient grounds to constitute a prima facie case against the petitioner. 16. The Hon’ble Supreme Court in the case of Bhajan Lal (supra), has held as under: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. Page No.# 8/10 (1) Where the allegations made in the first information report or 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 a case against the accused. (2) Where the allegations in the first information report and other materials, 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 concerned Act (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 concerned Act, 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.” 17. However, in the present case, as discussed above, there is sufficient material to constitute a prima facie case against the petitioner. It cannot be directly concluded that this is merely a civil dispute between the parties, as there are allegations of misappropriation and cheating against the petitioner. Furthermore, the grounds raised by the petitioner may be addressed at the time Page No.# 9/10 of framing the charge and at the time of evidence. 18. More so, it is view of the Hon’ble Apex Court that while exercising the power under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. In this regard, a decision of Hon’ble Apex Court in the case of Central Bureau of Investigation Vs. Aryan Singh etc, reported in (2003) SCC online 379, can be relied on wherein, the paragraph Nos. 9, 10, 11 & 12 of the said judgment, reads as under: “9. Having gone through the impugned common judgment and order passed by the High Court quashing the criminal proceedings and discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings in exercise of the limited powers under Section 482 Cr.P.C. and/or in exercise of the powers under Article 226 of the Constitution of India. 10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”. 11. One another reason pointed by the High Court is that the initiation of the criminal proceedings / proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings / proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any Page No.# 10/10 case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. 12. In view of the above and for the reasons stated above, when the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings and applying the law laid down by this Court in catena of decisions on exercise of the powers at the stage of discharge and/or quashing the criminal proceedings, the impugned common judgment and order passed by the High Court quashing the criminal proceedings against the accused is unsustainable and the same deserves to be quashed and set aside. 19. So, from the discussion made above, it is seen that a prima facie case is found to be established even from plain reading of the statement made in the F.I.R. More so, there is no material to hold that complaint/F.I.R. is lodged only with a malafide intention only to harm the petitioner or with an ulterior motive for wreaking vengeance on the accused/petitioner. 20. In view of above, this Court is of the opinion that it is not a fit case for invoking the power under Section 482 of Cr. P. C. for quashing the Order dated 22.03.2024 as well as the charge-sheet, vide C.S. No.63/2024 dated 31.05.2024 and the PRC Case No. 1389/2024, which is pending before the Court of learned Chief Judicial Magistrate, Karimganj. Thus, this criminal petition stands dismissed. 21. In terms of above, this criminal petition stands disposed of. JUDGE Comparing Assistant