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2021 Supreme(Gau) 837
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH, ITANAGAR BENCH
HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Pawan Agarwal, S/o Late Shri Damodar Agarwal – Petitioner
Versus
The State of AP, Through Public Prosecutor and Anr. – Respondents
Crl.Petn. 110/2021
Decided On : 26-11-2021
Advocate Appeared:
For the Petitioner:Duyu Laji Advocate
For the Respondent: P P of AP
IMPORTANT POINT
The court established that an FIR can disclose a cognizable offence even in the context of a civil dispute, and the investigating authority has the discretion to summon individuals for investigation based on their potential knowledge of the case.
Headnote:
CRIMINAL PROCEDURE - FIR and Non-Bailable Warrant - Sections 41A, 160 of Cr.P.C, Sections 420, 417 of IPC - The court discussed the applicability of Sections 41A and 160 of the Cr.P.C in relation to the issuance of summons and notices to the petitioner. It interpreted the FIR's allegations as disclosing a cognizable offence under Sections 420 and 417 of IPC, emphasizing the need for further investigation into the fraud claims. The court concluded that the FIR was maintainable and did not warrant quashing, while setting aside the Non-Bailable Warrant and notices issued under Section 41A due to the Covid-19 situation.
Fact of the Case:
Pawan Agarwal filed a petition under Section 482 of Cr.P.C to quash FIR No. 0227/2017 for alleged fraud under IPC Sections 420 and 417, and to set aside a Non-Bailable Warrant and notices issued under Section 41A of Cr.P.C. The petitioner claimed he was not acquainted with the facts of the case and was unable to appear due to Covid-19 restrictions.
Finding of the Court:
The court acknowledged the impact of Covid-19 on the petitioner's ability to appear but found that the FIR disclosed a cognizable offence. It upheld the validity of the summons under Section 160 Cr.P.C, stating that the investigating authority had the prerogative to summon individuals who may have information relevant to the case.
Issues: Whether the FIR disclosed a cognizable offence and whether the Non-Bailable Warrant and notices under Section 41A of Cr.P.C should be quashed.
Ratio Decidendi: The court held that the FIR contained sufficient allegations to constitute a cognizable offence, thus justifying the investigation. The court emphasized that the mere assertion of a civil dispute did not negate the possibility of criminal liability under the IPC.
Final Decision: The court set aside the Non-Bailable Warrant and notices under Section 41A of Cr.P.C but retained the summons issued under Section 160 Cr.P.C, allowing the petitioner to cooperate with the investigation without the threat of arrest until he appeared before the investigating authority.
JUDGMENT :
HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Heard Mr. Yellop Singh, learned counsel for the petitioner and Ms. L Hage, learned Additional Public Prosecutor for the State of Arunachal Pradesh.
2. The petitioner, Pawan Agarwal, a resident of Vidhyadhar Nagar, Jaypur, Rajasthan, has instituted this application under Section 482 of Cr.P.C for setting aside the implication of the petitioner in the F.I.R dated 23.11.2017, which resulted in the registration of FIR No. 0227/2017 in the Pasighat Police Station under Sections 420/420B/34 of IPC. Further prayer is made for setting aside the Non-Bailable Warrant of Arrest (NBWA) dated 26.04.2021 issued by the learned Chief Judicial Magistrate, Pasighat. Also the undated notice of appearance under Section 41A of Cr.P.C issued by the Investigating Officer, the reminders under Section 41A Cr.P.C dated 08.09.2021 and 28.08.2021 of the Investigating Officer are also sought to be set aside. It is stated that during the pendency of this petition, a further notice, the date of which the learned counsel for the petitioner is unaware of was issued, which also is sought to be set aside. Consequently, a prayer is also made for setting aside all consequential proceedings pursuant to the aforesaid FIR No. 0227/2017 dated 23.11.2017 in the Pasighat Police Station.
3. We have noticed that in the Pasighat Police Station case No. 0227/2017, the Investigating Officer had issued a summon to the petitioner Pawan Agarwal under Section 160 Cr.P.C requiring him to appear before the investigating authority within a month or earlier for the purpose of the statements to be recorded. The said summon under Section 160 Cr.P.C is dated 08.03.2021.
4. In response thereof, the petitioner makes a postal communication to the Investigating Officer, which is undated and is said to have been posted on 05.04.2021 taking a stand that he was in receipt of the summon under Section 160 Cr.P.C dated 08.03.2021 and his response thereof is that he is not acquainted with the facts and circumstances of the Pasighat Police Station Case No. 0227/2017 and he had never visited Arunachal Pradesh nor does he knows as to who is the complainant in the matter. The petitioner also referred to the Covid-19 situation that was prevailing in April, 2021 and made a request that he be allowed to depose through the virtual mode before the investigating authority. The petitioner also made an online communication on 17.03.2021 wherein he referred that he had been made a witness in the case and re-iterating that he has no information about the matter and he never visited Arunachal Pradesh in his life. Accordingly, co-operation was sought for from the investigating authorities.
5. In the aforesaid circumstance, some further notices under Section 41A of Cr.P.C were issued to the petitioner, which are dated 25.08.2021 and 08.09.2021 apart from one undated notice, and as orally stated by the learned counsel for the petitioner, a further notice the date of which he is unaware of, was also issued.
6. We have heard the argument of Mr. Y. Singh, learned counsel for the petitioner and from the argument it is discernible that the petitioner seeks for setting aside the FIR No. 0227/2017 before the Pasighat Police Station. In the meantime, there is also a NBWA issued by the learned Chief Judicial Magistrate, Pasighat directing the Officer-in-Charge of Pasighat Police Station to arrest the petitioner Pawan Agarwal and to produce him before the Court as and when arrested. The said NBWA is also assailed in this petition.
7. From the argument of Mr. Y Singh, learned counsel for the petitioner, it is further discernible that the petitioner seeks setting aside the FIR dated 23.11.2017 as well as all the proceedings made thereunder as well as the notices under Section 41A of Cr.P.C and the NBWA on the ground that although the petitioner is all along ready to co-operate with the investigation, but because of the Covid19 situation that was prevailing at that relevant po
