TaxTMI 
TaxTMI 
2021 (9) TMI 1508
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....itioner seeks intervention of this Court under Article 226, with criminal proceedings filed against him by the State police. Alternatively, the petitioner seeks transfer of the investigation of the said 6 FIRs to the CBI. The writ petitioner is an Member of the Legislative Assembly and leader of the Opposition Party in the State of West Bengal. Until the December 2020, the writ petitioner was a member of the political party which was in power in the State. Since 19th December, 2020, he joined a rival political party and had contested elections. While the petitioner was a member of the current ruling dispensation, prior to December 2020, he was Transport minister of the State cabinet and was also in charge of the Department of Irrigation and Water bodies. Prior thereto, in the year 2009 the petitioner was a Member of Parliament. According to Counsel victimisation and harassment by the State had begun immediately after the petitioner changed political allegiance in December 2020 and intensified after the Assembly elections in May 2021. The State fired the first salvo against the petitioner by removing his existing security cover. The petitioner approached this Court. Pursuant to an....
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....ession during a campaign for elections of a rival political party, the complainant therein was assaulted and roughed up, inter alia, by the petitioner for shouting slogans. 42 persons have been named in the FIR of which the writ petitioner is alleged accused No.4. The FIR was registered under Sections 147/148/149/323/325/307/354/379 and 506 of the IPC. On the 1st June, 2021 about a month after results of the Assembly Elections were declared, Contai Police Station registered FIR NO. 193 of 2021 dated 01.06.2021 under Sections 448/379/409 and 120B of the IPC read with Sections 51 and 53 of the Disaster Management Act 2005. It is alleged by the defacto complainant, one Ratnadeep Manna, who was one of the Board of Administrators of the Contai Municipality, that on the instructions of the writ petitioner and his brother, Soumendra Adhikari, certain Tarpaulin sheets were stolen from the godown of the Cantai Municipality. It is submitted that the allegations in the complaint are belied by the facts that two days prior to the said FIR, the Chairman of the Board of Administrators, Contai Municipality, one Siddhartha Maity on 29th May, 2021, had complained to the Contai PS of an attempt by ....
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.... of investigation into 7 FIRs registered against the petitioner, from April to June, 2021. The said Hazra who was in custody was ordered to be released. Similarly, another associate of the petitioner Dhyanesh Narayan Guha had also approached this Court claiming victimization by the State as also approached by this Court by way of WPA 11032 of 2021. By an order dated 8th July, 2021, this Court had ordered that the Gaighata PS would not arrest the writ petitioner without leave of this Court. The State was called upon to furnish particulars of all FIRs registered against the said Dhyanesh Narayan Guha to be submitted to the Court. After the writ petition was filed Panskura PS Case No. 375 and 376 were registered. The said cases are by and against the petitioner. In the factual background above, the petitioner seeks quashing of all the FIRs. Alternatively, it is submitted that the petitioner has no faith in the State police any further and sought transfer of such investigation in the above 6 cases against him to the CBI. Learned Advocate General was allowed to address first on the demurrer raised. A two-fold objection is taken. Firstly that the petitioner's remedy for quashing FIR ....
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....ven 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to. 26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is....
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....titution." It is clear and evident from the above that a conjoint reading of the dicta of the Supreme Court in Arnab Goswami (Supra) and Kapil Agarwal (supra) would clarify that the dicta of Pepsi Food decision (supra) must be understood in the light of the above two decisions. A summary of the dicta appears to be as follows :- a) The jurisdiction of the High Court under Article 226 and 227 of the Constitution of India is a part of the basic structure doctrine and cannot be taken away by any subordinate legislation. b) Section 482 of the Cr.P.C. confers the power on the High Court to quash the proceedings initiated in abuse of law. Remedies in the nature of Sections 438 and 439, Cr.P.C. are also available to a person to seek liberty against likely or actual deprivation thereof. However, the power of the High Court under Articles 226 and 227 cannot under any circumstances be abridged by any provision of the Cr.P.C. c) The jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is not circumscribed by any alternative and efficacious remedy under the provisions of the Cr.P.C. d) A proceeding for quashing of abusive proceedings and for liberty fr....
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....o be named and impleaded in the writ petition. The petitioner's allegation of bias therefore cannot be sustained. By reference to paragraph 53 and the criteria specified thereat it is argued that malicious prosecution has not been established by the petitioner. This Court notes that the circumstances of the Bimal Gurung decision are quite different from that of the case of the writ petitioner. Bias and malicious prosecution cannot be ruled out in the instant case since the petitioner is being persecuted at four different police stations by four different sets of individuals. A careful scrutiny of the complaints and the FIRs registered against the petitioner naming him directly or indirectly would indicate that the allegation of abuse of State police machinery cannot be completely ignored. The reference to paragraph 59 of the decision of the Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & Ors. reported in (2020) 10 SCC 118 must be viewed in the light of the facts of the said case. It, therefore, cannot be said that no prima facie case whatsoever for quashing of some of the cases against the petitioner if not transfer of all investigations....
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....in this regard albeit at an interlocutory stage. b) Well-over 7-8 and in some cases 13 consecutive FIRs have been registered against the associates since after the recent assembly elections. The said associates of the petitioner, had also changed partnership with the political parties along with him. An incident of the year 2018 is registered as an FIR for investigation even without a preliminary enquiry as regards delay in lodging of the complain. This High court had found in favour of such associates and had granted relief albeit at an interlocutory stage. c) The petitioner was charged with theft of tarpaulin sheets when 2 days prior to the registration of FIR, the Chairman of the Municipality had complained to the police that there was "an attempt to steal" the said tarpaulins. d) A case of suicide closed in the year 2018 and publicly announced such by the SP, is registered as a murder case against the petitioner 3 years thereafter. The FIR is registered by the Contai PS even without preliminary inquiry. e) Notwithstanding orders of this Court against arresting the said RakhalBera, an associate of the petitioner the State Police has maliciously and contumaciously arreste....