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2012 DIGILAW 1094 (GAU)

Dulal Roy v. State of Assam

2012-09-13

UTPALENDU BIKAS SAHA

body2012
JUDGMENT U.B. Saha, J. 1. This revision petition under Section 482 and 401 of the Code of Criminal Procedure (for short hereinafter referred to as 'Code') read with Article 227 of the Constitution of India is filed by the petitioner, Dulal Roy, a former Deputy Director, Cultural Affairs, Assam Rabindra Bhawan, Guwahati, for quashing the order, dated 20.7.2005, passed by the learned Special Judge, Assam in special Case No. 4(A)/2001, whereby and where-under the learned Special Judge framed the charges against him under Sections 120B / 409/ 420/ 468 IPC read with Section 12(2)/ 13(1)(c) & (d) of the Prevention of Corruption Act, 1988 along with the prayer for staying the further proceeding of the aforesaid special case. Heard Mr. D. K. Misra, learned senior Counsel assisted by Mr. K.C. Roy, learned Counsel appearing for the petitioner as well as Mr. K. Munir, learned Addl. P.P. appearing for the respondent State. 2. The facts needed to be discussed for disposal of the instant revision petition are as follows: On 29.8.1995, one Sri Khiteswar Kachari, Inspector of Police, Vigilance and Anti Corruption, Assam lodged an F.I.R. with the Officer In-charge, Anti Corruption Bureau Police Station, Assam at Guwahati alleging, inter alia, that during the year 1994-95, an amount of Rs. 3 crore 79 lakhs had been earmarked for the Directorate of Cultural Affairs for the month of March, 1995 under Plan, Non-plan and Tribal Sub-plan. But Sri Harendra Nath Bhuyan, the former Director of Cultural Affairs with intentional assistance of Shri Ramesh Deka, an UDA of Assam Secretariat, Deepak Bauah, an ex-Supdt. of Cultural Affairs and Sri U.C. Dutta, the former Secy., Assam Secretariat and cashier and others of the Directorate of Cultural Affairs, Assam, made irregular drawal of funds by making false documents with intent to commit fraud for the purpose of dishonestly disposing of some fund earmarked for the month of March, 1995 in violation of the direction under Tribal Sub-plan fund and other Heads by abusing their position as a public servant. 3. Upon receipt of the aforesaid information lodged by the said Inspector of Police, a specific case was registered at the Vigilance and Anti-corruption Bureau Police Station, Assam, Guwahati being V & ACB P. Case No. 7/95 under Sections 409 /468 IPC read with 13(1)(a)/13(2) of the PC Act, 1988. 4. 3. Upon receipt of the aforesaid information lodged by the said Inspector of Police, a specific case was registered at the Vigilance and Anti-corruption Bureau Police Station, Assam, Guwahati being V & ACB P. Case No. 7/95 under Sections 409 /468 IPC read with 13(1)(a)/13(2) of the PC Act, 1988. 4. Thereafter, the Investigating authority recorded the statement of the twenty witnesses including the official witnesses and ultimately laid a charge sheet before the learned Special Judge against the petitioner as well as Hamendra Nath Bhuyan, Ananda Mohan Bhagawati and Pabitra Kanta Barua under Sections 409/ 420/468 /120B IPC read with Section 13(1)(c)(d)/ 13(2) of the PC Act 1988. 5. In the charge sheet, the case of the prosecution is that during the year 1994-95, an amount of Rs. 3,79,00,000/- was earmarked in the Directorate of Cultural Affairs, Assam as stated supra and without publishing notice in the newspapers, the charge-sheeted accused persons and other officials allotted the work orders to the firms, namely, M/s Rangghar Tent House and M/s Assam Tend House, Guwahati for construction of temporary pendals for holding cultural programme in various places without following the codal formalities like publishing notices in the newspapers inviting quotations and also accepted the bills raised by the contractors in excess rate than the rate fixed by the local authority, i.e., the Deputy Collector, Kamrup and as such payment was made as per bills including the false bills towards hiring charges of the vehicle, thereby caused financial loss to the State exchequer to the tune of Rs. 30,00,196/- by abusing their position as a public servants during the year 1994-95. The relevant documents and statements recorded under Section 161 Cr. P.C. were also annexed thereto. 6. Thereafter, the petitioner appeared before the learned Special Judge and filed one application stating, inter alia, that the allegations made against him are relating to Bill No. 402 as has been reflected from the Annexure 1 of the charge sheet and during inspection, it was found that he has only certified the said bills on the basis of the challans wherein it was stated that the work had been done and that was certified by the Executive Engineer, P WD Shibsagar Building Division. More so, so far as the allegations pertaining to over payment, the bills processed was not made available to him. More so, so far as the allegations pertaining to over payment, the bills processed was not made available to him. Finally, he prayed for a direction to place the relevant file in which the bill No. 402 was processed for his inspection. 7. The learned Special Judge has not passed any direction for placing the aforesaid file and ultimately framed the charges against the petitioner and five others under the aforesaid Sections of IPC and the Prevention of Corruption Act, 1988 though there is no material against the petitioner to link him with the alleged offence in the charge sheet. 8. Being aggrieved by and dissatisfied with the order of framing of charges, dated 20.7.2005, the petitioner impugned the said order in the instant revision petition. 9. Mr. Misra, learned senior Counsel for the petitioner, while urging for quashing the impugned order whereby charges have been framed against the petitioner, would contend that the Legislature while enacting the provisions of 227 and 228 of the Cr. P.C cast a duty on the trial court to see as to whether there is really any material against the charge-sheeted accused. In the charge sheet as well as the statement of the witnesses recorded under Section 161 Cr.P.C., on the basis of which the prosecution would like to adduce the evidence, the Court is to see as to whether the prosecution has made out a case for framing charges against the charge-sheeted accused or not. If no case is made out for framing of charges, then it is the duty of the trial Court to discharge the accused persons under Section 227 of the Code and if a case is made out for framing charge, then that has to be done under Section 228 of the Code. 10. He further submits that the learned Court below while framing charges failed to appreciate the evidences proposed to be adduced by the prosecution for proving the guilt of the accused, as in the evidence proposed, i.e., the statement recorded under Section 161 of the Code, no material against the present accused petitioner is available. 10. He further submits that the learned Court below while framing charges failed to appreciate the evidences proposed to be adduced by the prosecution for proving the guilt of the accused, as in the evidence proposed, i.e., the statement recorded under Section 161 of the Code, no material against the present accused petitioner is available. More so, the accused petitioner is in no way involved with the process of the allotment work orders which was issued allegedly without following the codal formalities like publishing of notice in the newspapers inviting quotations for construction of temporary pendals, rather he has only discharged his duties as a Deputy Director being a nodal officer by way of certifying the bill on proper verification and certification of the challans by the concerned Executive Engineer of PWD Shibsagar Building Division. 11. He also contends that an officer like the petitioner is neither a beneficiary of the work concerned nor an authority to allot the work. More so, he was also not the authority to pass the bills raised by the contractor, far to irregularly drawal of the fund and there is also no materials as to how and what manner he had assisted the former Director Harendra Nath Bhuiyan. 12. Learned senior Counsel also urges that normally a Court is not supposed to interfere with the charge framed by the trial Court unless the framing of charge is totally misdirected due to non-consideration of the evidence proposed to prove the guilt of the accused. In the instant case, the uncontroverted allegations made in the FIR and the evidence collected by way of recording statements under Section 161 of the Cr. P.C. in support of the prosecution case, on the basis of which the charge sheet filed, do not disclose the commission of any offence against the present petitioner as alleged in the charge, far to make a case against him for his conviction. Thus, this is a fit case where the Court should exercise its inherent power under Section 482 of the Code as well as the supervisory power vested on it under Article 227 of the Constitution to keep the subordinate Court within its own jurisdiction. 13. Thus, this is a fit case where the Court should exercise its inherent power under Section 482 of the Code as well as the supervisory power vested on it under Article 227 of the Constitution to keep the subordinate Court within its own jurisdiction. 13. He has again submitted that out of twenty witnesses in the charge sheet, seven witnesses mainly stated regarding the allegations in the FIR as well as in the charge sheet and others are mere formal witness, but none of those witnesses implicated the petitioner in any way except the statement that he had certified the bill No. 402 which is collectively annexed as Annexure-E to the instant petition. He also submits that for framing charge, the prosecution has to establish the involvement of the charge-sheeted accused like the petitioner with the alleged offence and if without doing so, the charge is framed, that would be the abuse of process of the Court and miscarriage of justice. 14. In what situation, the Court can exercise its power under Section 482 of the Code for quashing either the entire proceeding or charge sheet framed, the learned senior Counsel has placed reliance on a decision of the Apex Court in R.P. Kapur V State of Punjab, AIR 1960 SC 866 , particularly, paragraph-6 of the said report, wherein the Apex Court while examining the Section 561A of the old Code, at present Section 482 of the Code and held that in three categories of cases, the Court can exercise its inherent power. One of these cases is if the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. 15. The second category case is where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. 16. And the third and final category case is while the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. 17. The Apex Court also reminded that in dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A, the High Court would not embark upon an inquiry as to whether the evidence in question is reliable or not as the same is not the function of the trial Court. 18. He also placed reliance of a subsequent decision of the Apex Court in State of Haryana & Ors Vs. Bhajanlal & Ors, 1992 Supp (1) SCC 335, where the Apex Court taking note of its earlier decision again considered how and in what situation, the High Court should exercise its power under Article 226 of the Constitution as well as Section 482 of the Code and provided some illustration, particularly, in paragraph-102 of the said report which is as follows: 102. In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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 uncontroverted 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, no investigation is permitted by a police officer without an order of a Magistrate as 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 ground for proceeding against the accused. (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 ground for proceeding 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 proceeding 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 mala fide 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. 19. Placing reliance on Bhajanlal (supra), Mr. Misra submitted that in Bhajanlal (supra), the Apex Court while taking note of R. P. Kapur (supra) also extended the category of the cases from three to seven and the present case of the petitioner falls on category three, as the accused petitioner is neither named in the FIR nor is there any evidence collected to be adduced for proving the guilt of the accused petitioner. Thus, it would be proper for this Court to set aside the impugned order by which charges were framed so far the petitioner is concerned. 20. Mr. Munir, learned Addl. PP while resisting the contention of Mr. Misra tried his level best to support the case of the prosecution as well as the impugned order, but ultimately after going through the record, in his usual fairness, submits that none of the witnesses, on the basis of whose evidence the charge sheet has been filed, implicated the present petitioner except the fact that he has certified the Bill No. 402 relying upon the challans placed before him which has been certified by the concerned Executive Engineer, P.W.D Shibsagar Building Division. 21. This Court has given anxious thought to the submission of the learned Counsel for the parties and also has gone through the statement of the witnesses recorded under Section 161 of the Code as annexed to the petition and from the lower court records, particularly, the evidence of Amarjyoti Kalita, an LDC of the Directorate of Cultural Affairs, Gopal Ch. This Court has given anxious thought to the submission of the learned Counsel for the parties and also has gone through the statement of the witnesses recorded under Section 161 of the Code as annexed to the petition and from the lower court records, particularly, the evidence of Amarjyoti Kalita, an LDC of the Directorate of Cultural Affairs, Gopal Ch. Luhkar, the Supdt of Directorate of Cultural Affairs, Sri Rabin Sarma, Asstt. Audit Officer, Assam, Local Fund, Sri Subrata Dey, Audit Officer, Local Fund, Assam, Guwahati, Sri Jagadish Mahanta, an LDA of Directorate of Cultural Affairs, Sri Samiul Alam, EE, PWD Magazine Division, Dispur and Amal Ch. Kalita, a Senior Scientific Officer, who examined the specimen signature of the accused persons. 22. Upon going through the statements of these witnesses which are proposed to be adduced as evidence, it appears that none of these persons has mentioned the name of the present petitioner except the Senior Scientific Officer, Kalita, who has stated that he could not prove the specimen signature of the present petitioner as required documents could not be found. 23. This Court has also gone through the bill No. 402 annexed to the petition, from which it appears that the petitioner only certified that the work was done as per the challans, which had been verified and certified by the Executive Engineer, P.W.D Sibsagar Building Division as would be evident from the challans which are annexed as Annexure-E to the petition collectively. 24. It further appears that the bills are addressed to the Director of Cultural Affairs, Assam on 24.6.1994 and the challans were verified on 20.6.1994, i.e., four days prior to placing the bills. Upon going through all these documents, a reasonable person can only come to a conclusion, even if the uncontroverted allegations made in the FIR as well as the evidence collected in support of the said FIR and charge-sheet, that at best it is a case of mere non-following the codal formalities and irregularities and that also not by the petitioner, as the petitioner was not involved with the alleged offence as an allotting authority or the authority to release money. More so, Mr. More so, Mr. Misra very rightly pointed out that the beneficiaries of the alleged irregularly drawal of fund were the contractors, but they were not booked by the investigating agency, rather the petitioner was implicated only to harass him by abuse of process of the Court. Thus, according to this Court, the case of the petitioner is falls under the third category of the cases as stated by the Apex Court in R.P. Kapur (supra) as well as Bhajanlal (supra). 25. When this Court dealing with its power under Section 482 of the Code also keeps its mind regarding its own limitation as this Court is not sitting either in a trial or in an appeal. Thus, it would not be proper for this Court to go for a roving enquiry as to whether the charge was properly framed or not in a preliminary stage of a proceeding, but at the same time, when the materials, on the basis of which, charge-sheet has been filed by the investigating authority and consequent there to, the impugned order of charge has been passed, are placed before this Court, it is the duty of the Court to see that there should not be any abuse of process of Court and miscarriage of justice, particularly, to a justice seeker who is in no way involved with the alleged crime while merely discharging his official duties, when it is evident from examination of the records available. 26. In a case, particularly relating to an economic offence, the Court should be more cautious, but that does not mean that when no case is made out against an accused, the Court is debarred from exercising its inherent jurisdiction for doing justice to an innocent person. Inherent power is vested on a Court only to protect interest of justice and to avoid unnecessary harassment to a citizen and miscarriage of justice when the evidence placed or proposed to be placed by the prosecution in support of its case does not make out a case to prove the guilt of the accused. 27. On scrutiny of the order impugned, it appears that the learned trial Court considered the decision of the Apex Court in State of Orissa Vs. Devendra Nath, AIR 2004 SCW 6813 as relied upon by the special P.P therein. 27. On scrutiny of the order impugned, it appears that the learned trial Court considered the decision of the Apex Court in State of Orissa Vs. Devendra Nath, AIR 2004 SCW 6813 as relied upon by the special P.P therein. In that case what the Apex Court said is that at the stage of framing of charge roving and facing enquiry is impartiable. If the contention of the case is accepted there would be mini trial at the stage of framing charge that would defeat the object of the Court. 28. There is no doubt that a Court while framing charge should not go for a roving enquiry, but it cannot avoid the duty cast upon it in Section 227 of the Code, as in the said provisions, the Legislature specifically stated that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing, meaning thereby at the time of framing charges, both the prosecution and the accused have to be given opportunity of hearing for placing their case and the Court is also duty bound to examine the record placed before it by the prosecution and only when an accused cannot be discharged upon hearing relying on record available, then a charge can be framed. 29. Reading of Section 227 and 228 of the Code together it would be clear at the beginning of the trial, the truth, veracity and affect of the evidence which the prosecution proposes to adduce though may not be meticulously checked, but that should be properly examined as the Court is given a wider discretion to determine as to whether there is sufficient ground for proceeding against an accused and there is also prima facie material on record on the basis of which a conviction can be said reasonably to be possible. The Court is not expected to frame charge merely mechanical, but has to exercise its judicial mind to the given facts of the case. Charge can be framed only if there are materials showing possibility about the commission of crime as against certainty. 30. The Court is not expected to frame charge merely mechanical, but has to exercise its judicial mind to the given facts of the case. Charge can be framed only if there are materials showing possibility about the commission of crime as against certainty. 30. In the instant case, though the present accused filed an application for providing opportunity to inspect the relevant file where the Bill No. 402 was processed, the said application was also not disposed of admittedly by the Court below as stated by the counsel. Not only that from the impugned order, it further appears that the special Judge in his order stated that he has carefully scrutinized the entire materials on record including the statements of the witnesses recorded under Section 161 of the Code and has found that there are prima facie materials to frame charge, but what are those materials has not been discussed, and who are those witnesses implicated the present petitioner. Mere a presumption is not enough to frame the charge taking aid under Section 228 of the Code. 31. In a criminal case, the Court may see the gravity of offence, but mainly duty of the Court is to see whether the accused is connected in any way with the alleged offence or crime on the basis of evidence place before it. In the instant case, upon examination of the records, particularly, the lower court record, there is no hesitation in the mind of this Court that no case is made out for framing the charge against the present petitioner and Mr. Munir, learned Addl. P.P in his usual fairness also submitted to the same for which this Court records the appreciation as what he did keeping in mind that a P.P is not only for defending the prosecution case whatever it is, but also to provide justice to a justice seeker as he is entitled to. Munir, learned Addl. P.P in his usual fairness also submitted to the same for which this Court records the appreciation as what he did keeping in mind that a P.P is not only for defending the prosecution case whatever it is, but also to provide justice to a justice seeker as he is entitled to. When there is no evidence available on record to show that the petitioner was in any way involved with the forgery of any document and defalcation of any money by way of fraudulent means and involved with conspiracy as alleged and also no incriminating materials are available for involving himself with the corruption as alleged, men the accused should be discharged from the alleged offence under Sections 409/ 420 /468 /120B IPC read with Section 13(1)(c)(d) /13(2) of the PC Act, 1988 for ends of justice. 32. In view of the above discussion, the impugned order so far as the petitioner is concerned is hereby set aside. Consequently, the petitioner is discharged from the case as there is no sufficient material for proceeding against him in the record. In the result, the revision petition is allowed. Send down the L.C. records. Petition allowed