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2008 DIGILAW 606 (GAU)

State of Assam v. Subhendu Sorcar

2008-08-14

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. By this petition, the petitioner has sought for modification, cancellation and/or alteration of the order dated 11.3.2008 passed by this court in Criminal Revision Petition No. 42 of 2008. The brief facts leading to the filing of this application can be read as under:- Sri Subhendu Sarkar, the opposite party herein filed a Criminal revision petition being No. 42 of 2008 challenging the legality and validity of the order dated 9.1.2008 passed by the Special Judicial Magistrate, Kamrup, Guwahati arising out of CID P.S. Case No. 9 of 2007 by which the prayer for zimma of the articles of documents seized by police as well as for unlocking the sealed premises of the opposite party was rejected. This Court, having been filed the criminal revision petition as aforesaid vide order dated 11.3.2008 set aside the order impugned passed by the learned Special Judicial Magistrate, Kamrup, Guwahati and directed release of the seized documents seized by the CID on various dates after making proper inventory of the same, keeping one copy of the same on the record. This Court while passing such order also observed that the Investigating Authorities would be at liberty to approach this court for further direction, clarification and modification regarding obtaining of appropriate direction. Now this petitioner, the State of Assam taking aid of the observation made by this court in para 12 of the order, has preferred this application for modification, alteration of the order passed by this court. 2. For an appropriate approach to the petition so made it will be appropriate for this court to refer the paragraph 12 of the order dated 11.3.2008, which reads as under:- Accordingly, this criminal revision is allowed. However, Investigating authorities are at liberty to approach this court for further direction, clarification and modification regarding obtaining of appropriate direction. 3. Pursuant to the issuance of notice, the opposite party herein appeared and filed objection as against the petition so made by the State of Assam. 4. I have heard Mr. K.N. Chowdhury, learned Addl. Adv. General for the petitioner, the State of Assam and Mr. B.C. Das, learned Sr. counsel for the opposite party. 5. 3. Pursuant to the issuance of notice, the opposite party herein appeared and filed objection as against the petition so made by the State of Assam. 4. I have heard Mr. K.N. Chowdhury, learned Addl. Adv. General for the petitioner, the State of Assam and Mr. B.C. Das, learned Sr. counsel for the opposite party. 5. The petitioner, State of Assam has sought for modification, cancellation and/or alteration of the order dated 11.3.2008 on the following reasons:- I. Though the bank pass books, statements etc., has been seized, full details of the bank account such as to whom the payments have been made, from whom payments has been received, who are the persons involved are yet to be ascertained. II. The documents seized being voluminous and having different dimensions, scrutiny thereof are yet to be completed. Moreover, upon completion of the scrutiny/investigation a situation may arise when the same may have to be forwarded to the forensic authorities for due examination. In such an eventually absence of the original documents will seriously prejudice the investigation. III. Prima facie the money lying in the accounts belonging to the accused persons which have since been freezed are all ill got money. Therefore, if at this stage the accounts are de-freezed the accused would get away with the same. IV. Two CPU's seized are required to be forwarded to forensic laboratory for expert opinion. V. If the office premises, sealed during the course of investigation, is allowed to be used again, the accused persons will use the same for furthering their illegal activities and perpetrate fraud on the members of the public. VI. Dr. Vijay Pandurang Bhatkar, Director ETH Ltd., Pune, after obtaining anticipatory bail from Bombay High Court on 14.09.2007 has not appeared before the I.O. till date and, as such, he is yet to examined. VII. Sri Sanjeeb Krishna Deva Goswami of Khanapara, Guwahati, who was granted pre-arrest bail on 15.10.2007 also has not appeared before the I.O. and, as such, could not be examined. VIII. Investigation so far reveals that approximately Rs. 14 crore (rupees fourteen crore) have been cheated by the opposite party/petitioner along with his associates. IX. The case is pending for scrutiny of seized documents/materials, examination of witnesses and arrest of the accused persons. VIII. Investigation so far reveals that approximately Rs. 14 crore (rupees fourteen crore) have been cheated by the opposite party/petitioner along with his associates. IX. The case is pending for scrutiny of seized documents/materials, examination of witnesses and arrest of the accused persons. Therefore, if at this stage the incriminating materials seized/sealed during the course of the investigation are to be released, as ordered, the prosecution/investigation would suffer serious prejudice. 6. Mr. K.N. Chowdhury, learned Addl. Adv. General in support of this application and the reasons incorporated therein submitted that the documents and other properties which have been seized and ordered to be released by this court vide order dated 11.3.2008 if allowed to remain with the opposite party, investigation of the case would be jeopardized and affected in its root. The opposite party herein, according to Mr. K.N. Chowdhury, learned Addl. Adv. Gen. involved in various activities which are, however, do not fall within the domain of the NGO for which the Government of Assam approved establishment of office of the said NGO at Guwahati Medical College Hospital, but the said NGO traversed beyond the jurisdiction and acted illegally in some comers which are not within the purview of the aim and object of the same NGO. Accordingly, an FIR was lodged on 10.4.2007 with CID department and accordingly CID P.S. case No. 9 of 2007 was registered under Sections170/419/420/468/473 IPC. It is/was alleged that the opposite party fraudulently entices the victims to deposit their money in the account of NERDP to obtain contracts from the Government and for the purpose he impersonates himself as an Officer of the State Government by producing forged documents and the opposite party thus in association of its accomplices cheated the victims to the extent of Rs. 7 crores. During investigation, the CID authority seized various incriminating materials including registers, bank statement of NERDP accounts, bank deposit slips, cheque books, pass books, rubber stamp, letter head, CPU, cash Rs. 89,000/-, files relating to awarding of contracts and various correspondence in connection with construction of work at Mizoram along with EMD for Rs. 25 lakhs by Cheque No. 022678 dated 19.4.2007. The above documents and articles were seized after the search of the office premises situated at Guwahati medical College and Hospital, 4th floor, main building. 89,000/-, files relating to awarding of contracts and various correspondence in connection with construction of work at Mizoram along with EMD for Rs. 25 lakhs by Cheque No. 022678 dated 19.4.2007. The above documents and articles were seized after the search of the office premises situated at Guwahati medical College and Hospital, 4th floor, main building. In addition to that CID department also seized one black Ford Icon vehicle bearing registration No. AS-01-S-6969 with "Government of India" superscribed in the number plate. Further such search operation was also carried out in different establishment namely M/s. Salvo Furniture, owned by one Sri Siddarth Sankar Mazumdar, wherefrom some documents and other materials were also seized. The rented godown used by the opposite party, owned by Sri Dipanjal Hazarika was also search and 240 numbers of paper cartoon boxes containing radio transmission equipments were seized. It was argued by Mr. K.N. Chowdhury, learned Addl. Adv. Gen. that investigation of the aforesaid case is on till date and for purpose of effective investigation some documents, articles seized by the CID department are required. The release of the seized documents and the articles by virtue of the order dated 11.3.2008 in favour of the opposite party herein would frustrate the proper investigation of the allegation brought in as against the opposite party. It was also argued by him that if the seized documents and other articles ordered to be released by this court vide the aforesaid order if remain in the power and possession of the opposite party there is every scope of manipulation of those documents, materials, CPUs etc. and for the purpose of effective investigation of the case this seized documents and other materials like CPU etc. are required to be in the hand of the investigating agency. Referring the to the paragraph 12 of the order of which the modification has been sought for by this petition, it was argued by Mr. K.N. Chowdhury, that this court vide this order has given a concession to the aggrieved party to approach this court for modification, cancellation and/or alteration etc. By releasing the seized documents and other materials which are necessary for effective investigation would suffer to a great extent. Mr. K.N. Chowdhury, that this court vide this order has given a concession to the aggrieved party to approach this court for modification, cancellation and/or alteration etc. By releasing the seized documents and other materials which are necessary for effective investigation would suffer to a great extent. Mr. Choudhury, therefore, in view of the reasons incorporated in the petition itself urged this court to cancel, modify and/or to alter the order dated 11.3.2008 passed in Criminal Revision No. 42 of 2008 for proper investigation of the case and for ends of justice. 7. Mr. B.C. Das, learned Sr. counsel while objecting to the submissions advanced by Mr. K.N. Chowdhury put much emphasis that by virtue of para 12 of the order this court cannot review the order dated 11.3.2008. It was argued by him that if some modification or alteration is made in the order dated 11.3.2008 it would amount to review of the order and be against the provision of Section 362 of the Criminal Procedure Code. Since the High Court has no jurisdiction to alter or review its own judgment and order except to the extent to correcting in a clerical or arithmetic error once the matter is finally disposed of, no application subsequent thereto would be maintainable for issuance of fresh direction and if made and done so would be unwarranted and amounted to abuse of process of court. In absence of specific statutory provision such attempt would be illegal, Mr. Das Argued. Section 362 of the Criminal Procedure code says as under: Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. 8. According to Mr. B.C. Das, learned Sr. counsel this provision does not afford an opportunity to a court to alter its own judgment or final order disposing of a case except correction of clerical and arithmetical error. Vide order dated 11.3.2008 this court finally disposed of the application made under Section 397 of the Code and, therefore, this court cannot make any alteration of the judgment or the final order in absence of specific provision in the code. 9. Mr. B.C. Das, learned Sr. Vide order dated 11.3.2008 this court finally disposed of the application made under Section 397 of the Code and, therefore, this court cannot make any alteration of the judgment or the final order in absence of specific provision in the code. 9. Mr. B.C. Das, learned Sr. counsel in support of his contention relied in the decisions reported in 1979 (2) SCC 305 (State of Orissa Vs. Ram Chander Agarwala & Ors.), 1981 (1) SCC 500 Sooraj Devi Vs. Pyare Lal), 2001 (1) SCC 169 (Hari Singh Mann Vs. Harbhajan Singh Bajwa & Ors.) and 2001 (4) SCC 752 (State of Kerala Vs. M.M. Manikantan Nair). 10. Mr. K.N. Chowdhury, disagreeing with the submission advanced by Mr. B.C. Das, learned Sr. counsel for the opposite party, submitted that section 482 of the Criminal Procedure Code affords an inherent power on the High Court to make orders as may be necessary to give effect to any order under this code or to prevent to abuse of process of any Court or otherwise to secure the ends of justice. This power is not limited by any provisions of this code. So, accordingly to Mr. K.N. Chowdhury, learned Addl. Adv. Gen. release of the seized documents and other articles in favour of the opposite party herein would jeopardize the investigation if allowed to be remained in power and possession of the opposite party and for proper investigation of the case the modification or alteration of the order dated 11.3.2008 is necessary to secure the ends of justice in other words for proper investigation of the case. Sri Chowdhury, in support of his contention relied in the case between Popular Muthiah Vs. State, Represented by Inspector of Police; reported in 2006 (7) SCC 296 . Taking aid of the judgment Mr. Chowdhury submitted that High Court can exercise inherent power as provided under Section 482 of the Code in the interest of justice. So according to Mr. Chowdhury, the provision of Section 362 cannot override the inherent power of the High Court in dealing with a subject, which requires interference from the High Court. By release of the seized documents and articles by this court materially effects the investigation of the case and provides room to the opposite party for manipulation etc. So according to Mr. Chowdhury, the provision of Section 362 cannot override the inherent power of the High Court in dealing with a subject, which requires interference from the High Court. By release of the seized documents and articles by this court materially effects the investigation of the case and provides room to the opposite party for manipulation etc. therefore, for securing the ends of justice through an effective investigation, the modification, alteration of the order is required and this can be done by resorting to inherent power as provided under Section 482Cr.P.C. 11. It has been brought to the notice of this court that NGO of which the opposite party is the Secretary has indulged in to some other activities, which are not within the domain of the NGO. The Government of Assam approved functioning of the NGO from the Guwahati Medical College and Hospital with the aims and object for which the NGO is formed. This NGO apparently deviates from its aims and objectives and resorts to different activities, which are not approved by the concerned authority. 12. Having considered the submission advanced by the counsel of either party and the law as enunciated by the Apex Court and the High Court, this court is of view that High Court can exercise its inherent jurisdiction in the interest of justice even though there is restriction imposed by Section362 of the Code. Accordingly, the order dated 11.3.2008 can be modified, altered to the some extent, in the interest of justice and it is accordingly resorted to. The application made is allowed with the following directions: (1) The Investigating Officer of the case shall make an application specifying the articles, documents mostly required for the purpose of investigation; (2) The documents and articles seized and released in favour of the respondents-opposite party, which are not required for the effective investigation shall be left out from the list. The Investigating Officer shall make the application within a month from the date of the order before the Special Judicial Magistrate, Kamrup, Guwahati, who shall accordingly pass an order directing the opposite party herein to release the documents, articles mentioned in the list, which are considered to be necessary for the purpose of effective investigation of the case with condition that the same shall be returned as and when required by the court or any other court. With the above directions, misc. With the above directions, misc. case stands disposed of.