2023 Supreme(Cal) 972

IN THE HIGH COURT AT CALCUTTA
AJOY KUMAR MUKHERJEE, J.
Kanakendra Das – Petitioner
Versus
The State of West Bengal & Anr. – Opp. Parties
IA No. CRAN/1/2018 (Old No. CRAN 1714/2018), CRAN/2/2018(Old No. CRAN 1861/2018), CRAN/7/2019 (Old No. CRAN 1883/2019), CRAN/8/2021, CRR/522/2018 With CRAN/1/2018(Old No. CRAN 2679/2018), CRR/1584/2018 With IA No. CRAN/1/2018(Old No. CRAN/2173/2018), CRAN/6/2019 (Old No. CRAN/1882/2019), CRAN/7/2021, CRR/1683/2018
Decided On : 10-07-2023

Headnote:

CRIMINAL PROCEDURE CODE, 1973 - SECTION 482 - QUASHING OF FIR - FIR LODGED BY AN INTERLOPER - APPLICATION FILED UNDER SECTION 156(3) OF THE CODE WITHOUT ACCOMPANYING AFFIDAVIT - ORDER DIRECTING REGISTRATION OF FIR WITHOUT APPLICATION OF JUDICIAL MIND - SANCTION FOR PROSECUTION - ALTERNATIVE REMEDY UNDER THE WEST BENGAL MUNICIPAL ACT, 1993 - MALAFIDE INTENTION OF THE COMPLAINANT.

Fact of the Case:

Petitioners, accused persons in a criminal proceeding initiated on the basis of an FIR lodged by the opposite party no.2 alleging misappropriation of government funds sanctioned for developmental works in Cooch Behar Municipality, approached the High Court under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the said proceeding.

Finding of the Court:

1. The FIR maker, being an outsider, had no locus standi to implicate public officers of the Municipality making false allegations, in respect of which petitioners were not connected in any way. 2. The application under Section 156(3) of the Code was not accompanied by an affidavit as required by the Supreme Court in Priyanka Shrivastava's case, which was not curable in view of the court-monitored investigation. 3. The impugned order passed by the Magistrate directing the police to initiate investigation, treating the petition of complaint as FIR, was passed without application of judicial mind and acted like a post box. 4. Prior sanction for prosecution of the petitioners was not obtained as required under Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, 1988, despite the charge sheet showing that the process of E-tender was not observed and there were several procedural lapses in the matter. 5. The petitioners had an alternative remedy under Section 431 of the West Bengal Municipal Act, 1993, which provides a specific procedure for taking action against illegalities committed by the Municipal authority, instead of lodging an FIR. 6. The allegation of malafide intention on the part of the complainant was not tenable as the registration of FIR was mandatory under Section 154 of the Code if the information disclosed commission of a cognizable offence, and no preliminary inquiry was permissible in such a situation.

Issues: 1. Whether the FIR was lodged by an interloper with malafide intention? 2. Whether the application under Section 156(3) of the Code was maintainable without accompanying affidavit? 3. Whether the Magistrate passed the impugned order without application of judicial mind? 4. Whether prior sanction for prosecution of the petitioners was required? 5. Whether the petitioners had an alternative remedy under the West Bengal Municipal Act, 1993?

Ratio Decidendi: 1. The locus standi of a complainant, involving offence against the society is a concept, not familiar with criminal jurisprudence. 2. Though from the order impugned dated 24.10.2016, it appears that learned Magistrate Perused affidavit but it is alleged that no such affidavit was actually accompanied with the said application. However it appears that on the basis of the said direction passed by learned Magistrate and subsequent orders passed by High Court, the investigation was carried out by police officer not below the rank of Deputy Superintendant of Police, under the monitoring of this court and charge sheet was also submitted. 3. In view of series of orders passed by this court the argument advanced on the part of the petitioners about alleged irregularities in allowing the petition under section 156(3) of Cr.P.C. in the absence of filing affidavit how far tenable in the eye of law. It is further submitted, due to Police inaction defacto complainant was compelled to file aforesaid writ petition being No. WP 1082 (w) of 2017 where he stated the same allegation on oath before the High Court and annexed affidavit with writ petition. 4. In the above background ratio laid down in the judgments cited by Mr. Maitra on behalf of the petitioner, is to be judged in the present context where learned magistrate recorded that he perused the affidavit and he has heard the complainant and secondly the investigation was all along conducted under the monitoring of this court as appears from the orders passed in writ application. 5. All the aforesaid judgments are factually distinguishable from the present case in view of the fact that in the said cases the investigation has not been conducted under the monitoring of High Court and charge-sheet implicating accused persons has not been submitted in a court-monitored investigation.

Final Decision: The Court dismissed the petitions filed by the petitioners under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of the criminal proceeding initiated on the basis of the FIR lodged by the opposite party no.2.