Point of Law : Investigating agency ought not to have registered the relevant FIR when the complaint of the Chairman dated May 29, 2021, relating to the same incident disclosing cognizable offences was already diarised before them. An FIR should have been registered on the basis of the said complaint.

JUDGMENT :

Kausik Chanda, J.

This is an application for quashing of the proceeding being G.R. Case no. 990 of 2021 pending before the learned Additional Chief Judicial Magistrate, Contai, Purba Medinipur arising out of Contai Police Station Case No. 193 of 2021 dated 01.06.2021 under Sections 448/379/409/120B of the Indian Penal Code, 1860, and under Sections 51/53 of the Disaster Management Act, 2005.

2. I have had the advantage of hearing the detailed arguments advanced by the learned counsel appearing for the parties. The parties have filed their respective written notes of argument.

3. Mr. P.S. Patwalia, learned senior advocate appearing for the petitioner no. 1 submitted that the petitioners had been implicated in this case since they had changed their political affiliation from the ruling political party to the political party in opposition.

4. He pointed out that on May 29, 2021, the Chairman of the Board of Administrators of the Contai Municipality lodged a general diary before the Contai Police Station where it had been alleged that there was an attempt to commit theft of tarpaulin sheets and the attempt to commit was thwarted by the members of the public who were present at the spot.

5. It was further alleged that in the said general diary that on receipt of such information, the said Chairman immediately rushed to the spot and put a padlock.

6. Two days after the said general diary was lodged with a mala fide intention and malice the present FIR had been lodged, giving a contradictory version by one of the members of the Board of Administrators of the said Municipality.

7. The aforesaid fact of two conflicting version about the selfsame alleged incident of May 29, 2021, speaks volume of the maliciousness behind the present criminal case.

8. It has been pointed out that the statement recorded by the police under Section 161 of the Code of Criminal Procedure, 1973, suggests that the petitioners conspired for committing the alleged offences. It is absurd that a chance witness can have any knowledge with regard to the conspiracy. A public witness cannot have any information about the persons involved behind the scene of the alleged offence, namely the conspirators. It, therefore, shows that the said witnesses had been tutored by the investigating agency. It has been further submitted that there has been no ingredients of Section 409 of the Indian Penal Code, 1860, and there is no scope of entrustment in this case since the petitioner no. 1 was in no way connected or associated with the Contai Municipality. The petitioner no. 2 is an erstwhile Chairman of the Board of Administrators of the Contai Municipality and on the date of the alleged incident, he was in no way connected with the said Municipality.

9. Mr. Patwalia submits that the petitioner cannot be implicated on the basis of the statements of the co-accused since the same is hit by Section 25 of the Evidence Act.

10. Mr. Patwalia relies upon the judgments reported at AIR 1960 SC 866 (R. P. Kapur v. State of Punjab) and 2021 SCC OnLine 315 (Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra) to contend that when the prosecution has been lodged with a malice and the complaint does not show ingredients of a cognizable offence against the petitioners, the First Information Report may be quashed by the High Court in exercise of its power under Section 482 of the Code of Criminal Procedure, 1973.

11. Mr. Patwalia contends that the petitioner has been implicated in at least five criminal cases within a short span immediately after his change of political affiliation. Such consecutive criminal cases lodged against the petitioner by the State shows mala fide and malice of the State against the petitioner. By relying upon a judgment reported at (2018) 3 Cal LT 482 (Mukul Roy v. State of West Bengal) Mr. Patwalia submits that the present case against the petitioner should also be quashed.

12. Mr. Patwalia, at the time of giving his reply, has relied upon the some unreported case