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2019 Supreme(Gau) 343
IN THE HIGH COURT OF GAUHATI
Prasanta Kumar Deka, J.
Dieselie Issac Solo and Others – Appellants
Versus
State of Arunachal Pradesh and Another – Respondents
Crl. Pet. No. 198 of 2013, WP (C) No. 4214 of 2011
Decided On : 12-06-2019
Advocate Appeared:
For the Appellants : Mr. K. Goswami, Mr. H.K. Sarma.
For the Respondents: Mr. N.N.B. Choudhury, Mr. S. Borthakur.
Headnote:
Constitution of India, 1950 - Article 226 - Indian Penal Code, 1860 - Sections 420 and 415 - Criminal Procedure Code, 1973 - Section 482 - Criminal Case - Petitioner is brother of Solo who was arrested in connection with PS Case corresponding to GR respondent No - 2 as complainant lodged FIR in said case respondent No - 2 complainant informed wife of brother of petitioner that her husband was arrested at his instance and unless family members pay amount due to him brother of petitioner would not be released wife of brother of petitioner filed a petition which was registered as WP with a prayer for quashing of FIR against MI Solo - In said writ petition this Court passed an interim order permitting present petitioner to visit his brother MI Solo in District Jail in with one advocate along with a direction to Chief Secretary to Govt to secure their visit so that they could meet brother without any resistance from any quarter and move bail application for release of MI Solo - A local lawyer moved a bail application before Judicial Magistrate Class which was granted with condition of furnishing bail amount with one local surety of like amount - Held, Therefore it is intention which is gist of offence - To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at time of making promise - From his mere failure to keep up promise subsequently such a culpable intention right at beginning that is when he made promise cannot be presumed - In case of State it was held that where allegation made in first information report or complaint even if they are taken at their face value and accepted in its entirety does not prima-facie constitute any offence or make out a case against accused person inherent powers can be invoked to prevent abuse of process of court and to secure ends of justice present case fulfills said criteria inasmuch as complaint does not disclose any offence against present petitioner accused person and as such criminal proceeding initiated against present petitioner accused person by issuing summons in connection with CR Case by learned court of Judicial Magistrate is set aside and quashed - Criminal petition is accordingly disposed of.
JUDGMENT :
Prasanta Kumar Deka, J.
1. Heard Mr. D.K. Misra, learned Senior counsel assisted by Mr. B. Prasad, learned counsel for the petitioner. Also heard Mr. N.N.B. Choudhury the learned Senior Govt. Advocate, Arunachal Pradesh for respondent No. 1 and Mr. S. Borthakur learned counsel for the respondent No. 2.
2. Petitioner is the brother of Mizho Issac Solo (M.I. Solo) who was arrested in connection with Itanagar P.S. Case No. 144/2010 corresponding to G.R. Case No. 230/2011 under Section 420 IPC. The respondent No. 2, Sri Jotam Toko Takam as the complainant lodged the FIR in the said case.
3. The respondent No. 2, complainant informed the wife of the brother of the petitioner that her husband was arrested at his instance and unless the family members pay the amount due to him the brother of the petitioner would not be released. The wife of the brother of the petitioner filed a petition under Article 226 of the Constitution of India which was registered as WP (C) 4214/2011 with a prayer for quashing of the FIR against M.I. Solo on 19.8.2011. In the said writ petition this Court passed an interim order on 23.8.2011 permitting the present petitioner to visit his brother, M.I. Solo in the District Jail, Julley in Arunachal Pradesh with one advocate alongwith a direction to the Chief Secretary to the Govt. of Arunachal Pradesh to secure their visit so that they could meet the brother without any resistance from any quarter and move bail application for release of M.I. Solo.
4. A local lawyer moved a bail application before the Judicial Magistrate, 1st Class, Itanagar at Naharlagun which was granted on 1.9.2011 with the condition of furnishing bail amount of Rs. 15,000/- with one local surety of like amount. Bailor should be a permanent resident of Itanagar and if he is non-Arunachallee he/she should be a regular Govt. Employee of State of Arunachal Pradesh. Finding the said conditions onerous, the wife of the brother of the petitioner filed an application for modification of the conditions of the bail order before this Court. Vide order dated 14.9.2011 the order was modified to the extent that the accused person shall furnish bail amount of Rs. 30,000/- with further direction to provide security to the petitioner for the safe return journey to Banderdewa from Naharlagun.
5. The petitioner alongwith the lawyer from Guwahati went to Itanagar to release his brother on bail as per the modified condition of bail order originally passed by the Judicial Magistrate, 1st Class, Itanagar at Naharlagun. The petitioner alongwih the lawyer were escorted by the Arunachal Pradesh Police from Banderdewa to Naharlagun in compliance of the order dated 14.09.2011 of this court. Finally the brother of the petitioner was released on bail after furnishing the bail amount. At the time when the petitioner was in the court at Itanagar, the respondent No. 2 was present in the court and demanded the petitioner to pay the alleged amount of Rs. 2 crores due from his brother M.I. Solo. The petitioner told him that he had no knowledge of the same and not responsible for the same. After release of the brother, the petitioner alongwith him and the lawyer proceeded to Dimapur via Guwahati.
6. The petitioner in the month of December, 2013 was called to the Dimapur Police Station and informed that the Judicial Magistrate, Itanagar had issued summons against him as accused person in connection with C.R. Case No. 38 of 2012 under Section 420 IPC and handed over a copy of the order dated 21.8.2012 of the said court. Thereafter the present petitioner with the prayer for setting aside and quashing of the impugned order dated 21.8.2012 passed by the Judicial Magistrate, First Class, Itanagar against the petitioner as well as the criminal proceeding against the petitioner in C.R. Case No. 38/2012 pending in the said court was filed. Vide order dated 25.3.2013 the proceedi
