In a fresh development, the Jharkhand High Court just recently in a latest, landmark and laudable judgment titled Sanjay Kumar Sharda v. State of Jharkhand & Ors. in W.P.(Cr.) No. 395 of 2019 has made it amply clear in no uncertain terms that the Chief Minister Public Hearing Cell does not have jurisdiction to direct the police to register an FIR. While deprecating the usurpation of power, the Jharkhand High Court in this noteworthy case has strongly deprecated the practice of the Chief Minister Public Hearing Cell pressurizing the police officials to register an FIR as it has no jurisdiction to direct the police officials to register an FIR and has no power to monitor the same. Very rightly so!
To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice Ananda Sen wherein it is stipulated that, “The lawyers have no jurisdiction with regard to the proceeding, which has been held through video conferencing today at 10:30 A.M. They have no complaint in respect of the audio and video clarity and quality.”
While stating the purpose behind filing the petition, it is then stated in para 2 that, “By way of filing this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing of the entire criminal proceeding including the First Information Report in connection with Ramgarh P.S. Case No. 300 of 2018, registered for the offence under Section 406, 420 and 34 IPC, pending before the court of learned Chief Judicial Magistrate, Ramgarh.”
As it turned out, after hearing the counsel for the parties as pointed out in para 3, it is then brought out in para 4 that, “Counsel for the petitioner submits that from the perusal of the FIR, it will be clear that no criminal offence is made out. He further submit that there was on going business transaction between the parties and if for some breach of contract or because of some misunderstanding between the parties, the business transaction fails, it cannot be said that criminal cause of action arises for initiating a criminal proceeding. He submits that FIR was registered at the pressure of “Mukhya Mantri Jansanbad Kendra” (the Chief Minister Public Hearing Cell), which is a non-statutory authority and no direction can be given by such authority to register the FIR. He also submits that the action of the said Cell is absolutely bad, when there is procedure laid down in the Code of Criminal Procedure as to what steps are to be taken, and in what manner, if an FIR is refused registration by police.”
On the contrary, it is then brought out in para 5 that, “Mr. Anil Kumar, learned senior counsel for respondent No. 5 submits that the petitioner has cheated the respondent No. 5, as some of the materials have been kept/withhold by the petitioner and thus, offence under Section 406 IPC is made out. He further submits that when an offence is made out, FIR cannot be quashed.”
To put things in perspective, it is then pointed out in para 6 that, “This is a petition in which, an FIR is sought to be quashed. The law is well settled on this issue. The Hon’ble Supreme Court in the case of State of Haryana and Ors. Vs. Bhajan Lal and Ors. reported in (1992) Suppl. 1 SCC 335 (2014) 3 SCC 151 has held that when an offence is made out, the FIR cannot be quashed. The Court has to see as to whether from perusal of the FIR, any offence is made out or not.”
While elaborating on the details of FIR, it is then observed in para 7 that, “I have gone through the FIR. The informant has stated in the FIR that he had a business relationship with M/s Kameshwar Alloys & Steel Pvt. Ltd., Gola. He submits that the petitioner is the director of M/s Kameshwar Alloys. It is further stated that he was having business transaction with the accused persons since the year 2010 till January 2015. He stated that 40 pieces of Oxygen Cylinder and 26 pieces of commercial Gas Cylinder have been kept by the petitioner, which have not been returned. The value of the materials would be Rs. 6,60,000/-. He also submits that neither the amount has been paid nor the cylinders have been returned. This is the sum and substance of the written report, on whose basis, FIR has been registered.”
As is quite ostensible, it is then made clear in para 8 that, “From perusal of the aforesaid written report, it is clear that there was business relationship between the parties. This business relationship continued from the year 2010. The materials were kept by the petitioner, valued at Rs. 660,000/-. It is the case of the informant that the said amount has not been paid to him by the petitioner. FIR has been registered under Section 406, 420 and 34 IPC.”
For the sake of brevity, what is mainly mentioned in para 9 apart from mentioning that Section 406 IPC prescribes punishment for criminal breach of trust and criminal breach of trust has been defined under Section 405 IPC is that, “In this case, even if there is allegation that the materials were entrusted to the petitioner, but there is no allegation that the materials were dishonestly misappropriated or has been converted to the use of the petitioner. The ingredient of Section 405 IPC is missing in the instant case.”
To say the least, it is then stated in para 11 that, “From the facts narrated in the FIR, I find that there is no element which attracts Section 415 IPC. Admittedly there was business transaction between the parties since the year 2010 to 2015. The intention to cheat by the petitioner cannot be derived from perusal of the instant FIR. The Hon’ble Supreme Court in the case of Dalip Kaur Vs. Jagnar Singh, reported in (2009) 14 SCC 696 has held that there has to be an intention to cheat from the very beginning of the transaction. While I go through the written report, I find that there is no such pleading to that effect. In absence of this pleading, it can safely be held that there is no application of Section 415 IPC in the instant case.”
Going forward, it is then illustrated in para 12 that, “The Hon’ble Supreme Court in the case of Binod Kumar and Others Vs. State of Bihar and Another reported in (2014) 10 SCC 663 has held that civil liability cannot be converted into criminal liability. The Hon’ble Supreme Court has also held that by doing so, the power as well as the process of the court is abused. The Hon’ble Supreme Court has also held that the criminal proceeding are not the short cut for other remedies. In the aforesaid judgment, the Hon’ble Supreme Court has taken into consideration several judgments on the same line, which has been delivered by the Hon’ble Supreme Court.”
To put it succinctly, it is then held in para 13 that, “Considering the principles laid down by the Hon’ble Supreme Court, I find in the facts and circumstances that even if the FIR is taken on the face value, no offence punishable under Sections 420 and 406 IPC is made out. A simple money claim, arising out of a continuing business transaction, has been given the colour of criminal case, which is nothing but an abuse of the process of law.”
As things stand, it is then stated in para 14 in simple and straight language that, “In view of the aforesaid facts and the principle, which has been laid down by the Hon’ble Supreme Court, I find that continuation of criminal proceeding against the petitioner will be an abuse of the process of the Court. I, therefore, exercising the jurisdiction under Article 226 of the Constitution of India, quash the FIR in connection with Ramgarh P.S. Case No. 300 of 2018, registered for the offence under Section 406, 420 and 34 IPC, pending before the court of learned Chief Judicial Magistrate, Ramgarh.”
Most significantly, it is then held in para 15 that, “Before parting, I find that the FIR was registered at the direction of the “Mukhya Mantri Jansanbad Kendra” (the Chief Minister Public Hearing Cell) as the informant made a complaint to that Cell, when the FIR was not being registered. This document is the part of the FIR and from perusal of the same, I find that there was a direction by that Cell on 25.12.2017 to register the FIR. Further several directions were given by the said Cell, which would be apparent from pages 26, 27 and 28 of the FIR. Not only direction but the matter was supervised by the said Cell. If a written complaint is placed before a police officer wherein cognizable offence is alleged, the Officer cannot refuse to refuse to register the same as FIR. If there is refusal or negligence on the part of the police in registering the same, the remedy lies in Code of Criminal Procedure. The complainant/informant can send the complaint to the Superintendent of Police or to the Higher Authority praying therein to register the same. He even has the option to file a complaint before the court of competent jurisdiction. There is no provision in law to approach “Mukhya Mantri Jansanbad Kendra’’, which is absolutely a non-statutory body nor having being vested with any power under Cr.P.C. Further the said “Mukhya Mantri Jansanbad Kendra’’ has got no jurisdiction to direct the police official to register an FIR and have no power to monitor the same. Thus, the “Mukhya Mantri Jansanbad Kendra’’ has absolutely acted beyond jurisdiction and usurped the power, which was not vested in it by the Cr.P.C. This type of usurping of power by the said Cell is deprecated.’’
Be it noted, it is then stated in para 16 that, “Let a copy of this order be forwarded to the Chief Secretary of the State and the Advocate General, Jharkhand High Court, Ranchi, for looking into the matter and taking proper action in this matter.’’ Lastly, it is then held in the last para 17 that, “With the aforesaid direction and observation, this criminal writ petition stands allowed.’’
On a concluding note, it needs no Albert Einstein to conclude that what Justice Ananda Sen of Jharkhand High Court has directed makes sense and must be complied with forthwith in totality. Hemant Soren who is the Chief Minister of Jharkhand must act swiftly and comply with what has been directed as mentioned above! There can be no denying or disputing it!