Criminal Writ No.230 of 2009 For quashing the First Information Report of Patna Harijan P.S. Case No. 34 of 1999 along with its ancillary steps whereunder S.P. Harijan Cell, Crime Investigation Department, Patna. Mansoor Alam S/O Sri Mohammad Hasim, R/O village & P.O., Baheri, Distt-Darbhanga, at present posted as Executive Magistrate, Bokaro, Distt- Bokaro. .... .... Petitioner/s Versus 1. The State Of Bihar thru the Director General of Police, Bihar, Patna. 2. The State of Jharkhand thru the Secretary-cum-legal Advisor, Department of Law and Justice, Jharkhand, Ranchi. 3. The Inspector General of Police, Harijan Cell, Crime Investigation Department, Bihar, Patna. 4. The Deputy Inspector General of Police, Harijan Cell, Crime Investigation Department, Bihar, Patna. 5. The Superintendent of Police, Harijan Cell, Crime Investigation Department, Bihar, Patna. 6. The Deputy Superintendent of Police, Harijan Cell, Crime Investigation Department, Bihar, Patna. 7. The officer-in-Charge, Patna Harijan P.S. At & P.O. & P.S., Patna, Bihar. 8. The Sub- Inspector (Investigating Officer), Patna Harijan P.S. At & P.O. & P.S., Patna, Bihar. 9. Suresh Ram, R/O Hinoo Chawk, Doranda, P.S., Doranda, Ranchi .... .... Respondent/s ================================================== Appearance : For the Petitioner/s : Mr. Mahesh Narayan Parbat, Adv Mr. Sanjay Kumar Jha, Adv For the Respondent/s : A.A.G-10 Mr. Dhruba Mukherjee Mr. Satyavrat Verma ================================================== P R E S E N T HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI Aditya Kumar Trivedi, J. Petitioner has filed instant writ for 2 quashing of the First Information Report of Patna Harijan P.S. Case No. 34/1999 along with its ancillary steps wherein S.P., Harijan Cell, Investigating Department, Patna has directed to arrest the petitioner, grant of sanction etc. 2. It has been submitted on behalf of the petitioner that petitioner is not named in the FIR which was registered solely against accused, Prem Shankar Prasad, who, subsequently been acquitted after thorough trial. Then submitted that after a gap of ten years, there was no justification for the S.P. Harijan Cell, Crime Investigation Department to give a direction for arrest of petitioner arraying as an accused although there was no concrete material against the petitioner to justify his status as an accused which the prosecution did. Then submitted that the aforesaid accused, Prem Shankar Prasad was issued with a caste certificate No. 570 of 16.3.1992 by the petitioner in the background of the then prevailing Circular of the State Government circulated vide Memo No. 7/E-39/91-638 dated 31.1.1992 whereunder Tanti (Pan) was shown to be a member of Scheduled Caste. Accused, Prem Shankar Prasad applied for grant of caste certificate which was duly verified by Halqa Karamchari as well as Circle Inspector and on the basis thereof, petitioner had issued the aforesaid caste certificate and that happens to be the basis for issuing caste certificate by the Sub-Divisional Officer, Chapra vide 3 Certificate No. 76 dated 11.6.1993. 3. It has further been submitted that the aforesaid Notification No. 7/E-39/91-638 dated 31.1.1992 was subsequently withdrawn by the Government vide Notification No. 11/M-3/92K- 2735 dated 4.5.1992 with retrospective effect. Even accepting the same, the petitioner had issued the aforesaid certificate while the earlier Notification was already in existence as a result of which it cannot be said that he was any way liable for issuing the aforesaid certificate illegally. 4. It has further been submitted that it was Sub- Divisional Officer who had issued Certificate no. 76 dated 11.6.1993, that means to say after issuance of Notification No. 11/M-3/92K- 2735 dated 4.5.1992 and, before issuance of caste certificate on 11.6.1993, he should have taken into consideration the subsequent Notification by which the Tanti (Pan) was delisted from the list of Scheduled Caste so identified by the Government at an earlier occasion. As such, for the mistake committed by Sub-Divisional Officer, Chapra, petitioner cannot be held responsible. 5. Then submitted that the aforesaid event was exposed by a fictitious person namely, Suresh Ram, Hinoo Chawk, Dorand, Ranchi whose identity was not ascertained as came out from the enquiry report of Dy.S.P. who submitted the same vide Memo No. 4 561 dated 8.3.2000. 6. In likewise manner, it has been submitted that sanction accorded by the Department does not happen to be in accordance with law because of the fact that petitioner was not at all appointed by the Government of Jharkhand. So submitted that in the aforesaid facts and circumstances of the case, the FIR so far it relates to petitioner, is concerned is fit to be quashed. 7. There happens to be appearance of State of Jharkhand and on its behalf counter affidavit has also been filed challenging the submission advanced on behalf of petitioner on the ground that after bifurcation of State, the petitioner opted for Jharkhand cadre and accordingly, Jharkhand Government substituted Bihar Government. Therefore, sanction accorded by the Jharkhand Government is in accordance with law and further fulfils all its ingredients. 8. The State of Bihar has also put its presence and also filed counter affidavit. The gist of the counter affidavit happens to be that accused, Prem Shankar Prasad belongs to caste Tatma, a community identified under backward caste while the State Government by its Circular had identified Tanti (Pan) as a member of Scheduled Caste. There happens to be connivance at this level and on account thereof, a collusive report was submitted followed with issuance of caste certificate by petitioner knowingly and intentionally 5 bearing caste certificate no. 570 of 16.3.1992. Then, it has been submitted that after issuance of Circular No. 11/M-3/92K-2735 dated 4.5.1992 whereby the earlier letter identifying the Tanti (Pan) as member of Scheduled Caste was rescind, then in that event, it was incumbent upon the petitioner to cancel the caste certificate no. 570 dated 16.3.1992 so issued by him. Had the petitioner attentive towards his duty, the issuance of caste certificate no. 76 of 11.6.1993 by Sub-Divisional Officer, Chapra would not have materialized. Therefore, petitioner knowingly and intentionally issued the caste certificate in favour of main accused, Prem Shankar Prasad who was Tatma, coming under backward caste instead of Tanti (Pan). As such, petitioner’s complicity is itself visible. Consequent, thereupon, the prayer made by the petitioner is legally non entertainable. 9. Patna Harijan P.S. Case No.34/99 was registered on a written report of one Suresh Ram who had informed that Prem Shankar Prasad, Sectional Officer, I.G. Office got illegal promotion on account of fake caste certificate. The aforesaid case was investigated upon and during course of which it was collected that petitioner had issued caste certificate no. 570 dated 16.3.1992 identifying the accused, Prem Shankar Prasad as a member of Tanti (Pan), falling under category of Scheduled Caste as per the then prevailing Circular issued by the Government although he happens to 6 be Tatma community falling under backward caste, knowingly. Subsequently, aforesaid Notification No. 7/E-39/91-638 dated 31.1.1992 was withdrawn by the Government vide letter No. 11/M- 3/92K-2735 dated 4.5.1992 with retrospective effect even then the then Sub-Divisional Officer, Chapra issued Caste Certificate No. 76 dated 11.6.1993 and that happens to be the basis for getting the main accused, Prem Shankar Prasad promoted. 10. There has been no denial on the part of the petitioner in issuance of Caste Certificate No. 570 dated 16.3.1992 by him. There is no denial on the part of petitioner with regard to subsequent Notification so circulated vide letter no. 11/M-3/92K-2735 dated 4.5.1992 by which earlier Notification No. 7/E-39/91-638 dated 31.1.1992 was withdrawn with retrospective effect. There is no denial that during said period he was continuing his office. Then in that event, it was incumbent upon the petitioner to get its earlier issued Caste Certificate No. 570 dated 16.3.1992 cancelled. The non cancellation of the aforesaid Caste Certificate issued by the petitioner led issuance of another Caste Certificate No. 76 dated 11.6.1993 by Sub-Divisional Officer, Chapra, the competent authority. So, there is no controversy with regard to the act/ommission committed by the petitioner himself in getting the Caste Certificate issued and in that event, acquittal of main accused for want of production of material 7 witnesses, as is evident from lower court record already annexed with the instant writ petition, is not going to support the plea of the petitioner. 11. How a quashing could be effected. The criteria, have already been identified in a decision reported in AIR 1992 SC 604 State of Hariyana & Ors. Versus Bhajan Lal & Ors. The Hon’ble Apex Court has identified following categories including others wherein prosecution can be quashed and those are :- “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as 8 contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 12. Taking into account the allegation subsisting against the petitioner in consonance with the categories so identified by the Hon’ble Apex Court as disclosed above, the prayer of the petitioner do not fit in under any of the category. As such, prayer of the petitioner is found to be devoid of merit and is accordingly, rejected. Patna High Court The 21st day of December 2011 Md. Perwez Alam/AFR ( Aditya Kumar Trivedi, J.)