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2009 DIGILAW 384 (GAU)

Gegong Apang v. State of Arunachal Pradesh

2009-06-04

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. Review Application N. 16/2008 has been filed seeking review/recall of the order dated 10.1.2008 passed in PIL No. 50/2004. By the aforesaid order dated 10.1.2008 the objections raised by the review applicant in an affidavit dated 5.12.2007 with regard continuance of the investigation of, inter alia Crime Branch P.S case No. 8/2005 by the Special Investigation Team (SIT) headed by Sri M.P.S. Chauhan, IPC, had been rejected. The review applicant has also prayed for expunction of certain observations contained in the aforesaid order of the Court dated 10.1.2008, specific details of which will be noticed later. 2. The applicant who is the 5th accused in Crime Branch P.S. Case No. 8/2005 is a former Chief Minister of the State of Arunachal Pradesh. He was the Chief Minister of the State during the period 18.1.1980 to 18.1.1999 and again from 3.8.2003 to 9.4.2007. Being arrayed as the 5th accused in Crime Branch P.S. Case No. 8/2005 notices were issued to the review applicant to show cause as to why the trial of the aforesaid case, in which charge-sheet has been submitted in part, should not be transferred to any Court outside the State of Arunachal Pradesh. On receipt of such notices issued by the Court the review applicant had filed the affidavit dated 5.12.2007 contending, inter alia, that after he had demitted office of the Chief Minister w.e.f. 9.4.2007 the serving incumbent in the office of the Commissioner of Vigilance and head of the Public Distribution System Investigation Cell, was unceremoniously removed by the new Home Minister of the State and Sri M.P.S. Chauhan who was working as the Superintendent of Police in Tirap District was appointed as the Superintendent of Police of the Special Investigation Cell. The above change was made by an order dated 23.4.2007. According to the review applicant the same was calculated to ensure a favourable investigation of the multi crore irregularities in the Public Distribution System in the State. The review applicant in the affidavit dated 5.12.2007 had also mentioned that the transfer of Sri Chauhan made by order dated 23.4.2007 was without reference to the Police Establishment Board that was required to be constituted under orders of the Apex Court in Prakash Singh v. Union of India, (2006) 8 SCC 1. In the aforesaid affidavit filed it was further stated that after the investigation was taken over by Sri. In the aforesaid affidavit filed it was further stated that after the investigation was taken over by Sri. M.P.S. Chauhan many prominent contractors and political leaders close to the new Government were kept outside the purview of the investigation. In this regard the review applicant had mentioned the name of Sri Pema Khandu, S/o Sri Dorjee Khandu, the present Chief Minister of the State; Sri Jarkar Gamlin, the elder brother of Sri Jambom Gamlin, present Home Minister; Sri Karka Kamlin, nephew of the present Home Minister and Sri Kameng Dolo, MLA and former deputy Chief Minister of the Government of Arunachal Pradesh as being the prominent persons whose role in the multi crore irregularities in the public distribution system was not being investigated by the Special investigation Team. Furthermore, in the affidavit filed, the review applicant had stated that the investigation after being taken over by Sri Chauhan has become a political vendetta against the review applicant for reasons other than bona fide. 3. It would be appropriate to put on record that after Sri M.P.S. Chauhan, I.P.S., assumed charge as the Superintendent of Police (Vig) and Special Investigation Cell, by order dated 15.6.2007 passed in PIL No. 50/2004, he was appointed as the Head of the Special Investigation Team (SIT) constituted by the Court. 4. An affidavit dated 10.1.2008 was filed by Sri Chauhan countering the statements made by the review applicant in his affidavit dated 5.12.2007. In the said affidavit Sri Chauhan had stated that he was "transferred from Tirap District to Itanagar when Sri Gagong Apang himself was the Chief Minister of Arunachal Pradesh and was holding the charge of Home Minister also." In the foresaid affidavit it was further stated that acting pursuant to the orders passed by the Court in the PIL out of which this review application has arisen FIR Nos. 4, 5, 6 and 7 of 2007 were registered by Sri Chauhan on 1.8.2007 and in the said FIRs a total of 96 persons including Pema Khandu and Jarkar Gamlin and other relations of MPs, MLAs, Ministers, ex-Ministers have been mentioned. 5. The objections filed by the review application as contained in the affidavit dated 5.12.2007, noticed above, came up for consideration before this Court on a number of occasions and the matter was finally decided by the order dated 10.1.2008. 5. The objections filed by the review application as contained in the affidavit dated 5.12.2007, noticed above, came up for consideration before this Court on a number of occasions and the matter was finally decided by the order dated 10.1.2008. After noticing the averments made in the affidavit filed by the review applicant and Sri M.P.S. Chauhan, IPS, the Court had recorded the following observations: Therefore, the allegation that Sri Chauhan was brought by the present Home Minister from Tirap to Itanagar is absolutely a false statement. Though we do not expect a former Chief Minister to remember each and everyone of the posting made during his tenure we do certainly expect that before making such a statement in an affidavit before this Court and more particularly by a person who had held the high Constitutional Office to act with a greater sense of responsibility. 6. Insofar as the allegation of keeping certain persons outside the purview of the investigation, as levelled by the review applicant, is concerned, this Court on consideration of the affidavit filed by Sri Chauhan and the other materials on record recorded the finding that Sri Jarkar Gamlim and Sri K. Gamlin, brother and nephew of the present Home Minister and Sri Pema Khandu, the son of the present Chief Minister were in the list of accused filed before the Court by Sri Chauhan, their names appearing at Serial Nos. 40, 42 and 50 of the said list. Insofar as Sri Kameng Dolo, former deputy Chief Minister, is concerned, this Court, on a consideration of the available materials also recorded the conclusion that sanction for prosecution of Sri Kameng Dolo has been sought. On the aforesaid basis the Court by order dated 10.1.2008 thought it appropriate to reject the objections raised by the review applicant with regard to the continuance of the investigation by the Special Vigilance Cell of which Sri MPS Chauhan was the Superintendent as well as the head of the Special Investigation Team constituted by this Court. 7. Two grounds, in the main, have been urged in support of the review prayed for. Firstly, it is contended that the order of transfer of Sri Chauhan dated 23.3.2007 clearly mentions that he is being transferred from the post of S.P., Khonsa to the post of S.P., Vigilance and Special Investigation Cell (SIC). 7. Two grounds, in the main, have been urged in support of the review prayed for. Firstly, it is contended that the order of transfer of Sri Chauhan dated 23.3.2007 clearly mentions that he is being transferred from the post of S.P., Khonsa to the post of S.P., Vigilance and Special Investigation Cell (SIC). According to the review applicant, on 23.4.2007 he was not Chief Minister of the State, he having demitted office on 9.4.2007. The order of transfer dated 23.4.2007, according to the review applicant, makes it clear that till the said date i.e. 23.4.2007, Sri Chauhan was serving as Superintendent of Police, Khonsa. In the aforesaid circumstances, the statement made by Sri Chauhan in his affidavit that it was the review applicant who had transferred him is not correct and the finding of the Court recorded in this regard, being based on the incorrect statement appearing in the affidavit of Sri Chauhan, should be recalled. It is submitted, at the hearing, that the findings, which has been extracted above, has the effect of casting a cloud on the otherwise excellent performance of the review applicant as the Chief Minister and therefore the same should be expunged. 8. The second ground on which review of the order dated 10.1.2008 has been sought may now be noticed. According to the review applicant, Sri Chauhan had placed before the Court a list of the names of 40 accused in the cases under investigation and accordingly by order dated 15.10.2007 the Court had directed notices to be issued to all the aforesaid persons to show cause as to why the trial of the cases should not be transferred to any other Court outside the State of Arunachal Pradesh. In the aforesaid list of 40 persons the names of Pema Khandu and Jarkar Gamlin were not included. In the aforesaid list of 40 persons the names of Pema Khandu and Jarkar Gamlin were not included. When the said fact was brought to the notice of the Court by the review applicant by filing the affidavit dated 5.12.2007 with a copy to Sri MPS Chauhan, on the very next date i.e. 6.12.2007 another list of 56 accused was placed before the Court by Sri Chauhan and orders were passed by the Court on the same date i.e. 6.12.2006 to issue notices to the accused named "in the additional list submitted by Sri MPS Chauhan today" to show cause as to why the proceedings of the cases should not be transferred to any other Court outside State of Arunachal Pradesh. On the said facts it is the submission of the learned Counsel for the review applicant that a second list was surreptitiously filed before the Court by Sri Chauhan to overcome the lacuna in the investigation pointed out by the review applicant in his affidavit dated 5.12.2007. 9. To verify and ascertain the details of the decision making process leading to the order of transfer of Sri Chauhan dated 23.4.2007 we had required the learned Advocate General of the State to place before us the File in which the proposal for transfer of Sri Chauhan was initiated and orders were passed. The aforesaid File has been placed before us by the learned Advocate General. On perusal of the same we find that on 24.1.2007, when the review applicant was holding the post of Chief Minister, a proposal was mooted for transfer of Sri MPS Chauhan from the post of Superintendent of Police, Tirap District, Khonsa to that of Superintendent of Police (Crimes) in the Police Headquarters at Itanagar. The said proposal was approved by the review applicant as the Chief Minister of the State on 7.2.2007 and the formal order in this regard was issued on 8.2.2007. Subsequently, on a representation dated 16.2.2007 filed by some MLAs who desired retention of Sri Chauhan at Khonsa for continuance of the excellent work done by the said Officer in connection with maintenance of law and order in Tirap District the proposal for transfer of Sri Chauhan from Tirap District to Itanagar appears to have been kept in abeyance. Subsequently, on 3.4.2007 the Police Establishment Board has recommended cancellation of order dated 8.2.2007. Subsequently, on 3.4.2007 the Police Establishment Board has recommended cancellation of order dated 8.2.2007. Thereafter, it appears that after the review applicant had demitted office of the Chief Minister the matter was revived and Sri Chauhan was posted as Superintendent of Police, Vigilance by the order dated 23.4.2007. The order dated 23.4.2007 as it appears from a reading of the relevant File, was without reference to the police Establishment Board and at the instance of the New Home Minister of the State. What would be the legal effect of the same, however, is not the issue in the present case wherein the Court has been called upon to examine whether on the basis of the statement made by Sri Chauhan in his affidavit dated 10.1.2008 the Court was justified in recording the findings which have now been objected to by the review applicant. The above issue, naturally, has to be decided in the context of the fact revealed by the file that the transfer of Sri Chauhan from Tirap to Itanagar was approved by the review applicant as the Chief Minister of the State on 7.2.2007. 10. The statements made by Sri Chauhan in his affidavit dated 10th of January, 2008 are to the effect that he was "transferred from Tirap District to Itanagar when Sri Gagong Apang himself was the Chief Minister of Arunachal Pradesh and was holding the charge of Home Minister also." The finding recorded by the Court in this regard is that "the allegation that Sri Chauhan was brought by the present Home Minister from Tirap to Itanagar is absolutely a false statement." The aforesaid finding, in our considered view, reasonable flows from what has been revealed by a consideration of the File placed before us which, to repeat, indicates that the review applicant as the Chief Minister had approved the transfer of Sri Chauhan from Tirap to Itanagar. It is in the above context that the latter part of the observations in the order dated 10.1.2008 by which the Court had expected the review applicant to act with a greater sense of responsibility in making statements in the affidavit filed before the Court came to be recorded. We, therefore, see no reason as to why the aforesaid observations of ours should be recalled. We, therefore, see no reason as to why the aforesaid observations of ours should be recalled. However, we deem it appropriate to make it clear that in recording the said observations we had not expressed any opinion with regard to the functioning of the review applicant during his long tenure as the Chief Minister of the State. 11. With regard to the second ground urged in support of the review prayed for, it appears from the order-sheet of PIL No. 50/2004 that, initially, Sri Chauhan had submitted a list of 10 accused before this Court. The aforesaid list was submitted on 28.9.2007 in connection with a prayer made by Sri Chauhan for cancellation of the bail granted to the aforesaid 10 accused by the Trial Court in Arunachal Pradesh. Thereafter on 15.10.2007 an additional list of 30 more persons i.e. a consolidated list of 40 accused, was submitted before the Court. Furthermore, on 6.12.2007 another list of 56 additional names of accused had been submitted to the Court. The consistent statement of Sri Chauhan before the Court all along has been that as the investigation of the cases would proceed further the involvement of more persons may be revealed. Keeping in mind the magnitude of the investigation and the interim nature of the status reports submitted to the Court, from time to time, (the last status report was submitted on 28.4.2009) we are of the opinion that the submission of the additional lists of accused, from time to time, including the additional list of 56 accused submitted on 6.12.2007 should not be viewed by us as indicating any unnatural or unreasonable course of conduct on the part Sri Chauhan. Further, on the materials available to us, we do not think it would be correct to take the view that the investigation of the cases has not proceeded on the right lines as urged by the review applicant and that persons connected with the offences under investigation have been deliberately kept outside the purview of the investigative process. That apart, the eventual relief sought in the review application is for recall of our order dated 10.1.2008 and to remove Sri Chauhan as the head of the Special Investigation Team constituted by us by our earlier orders passed in the PIL No. 50/2004. That apart, the eventual relief sought in the review application is for recall of our order dated 10.1.2008 and to remove Sri Chauhan as the head of the Special Investigation Team constituted by us by our earlier orders passed in the PIL No. 50/2004. Whether the investigation under Sri Chauhan as the head of the SIT has proceeded on the right lines or not is a matter of our satisfaction and we are inclined to take the view that on the basis of the various status reports submitted before the Court there will be no occasion for us, at this stage, to reconstituting the SIT. 12. Consequently, we deem it appropriate to dismiss the review application.