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2014 DIGILAW 337 (GAU)

SUDHIN CHANDRA BARUA v. STATE OF ASSAM

2014-03-19

BIPLAB KUMAR SHARMA

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JUDGMENT : Biplab Kumar Sharma, J. This appeal is directed against the judgment of conviction dated 18th July, 2007 of the learned Special Judge, Assam in Special Case No. 2(A)/1990, State of Assam v. Mr. Sudhin Ch. Barua. By the said judgment, while convicting the appellant under Section 13(1)(e) read with Section 13(2)(b) of the Prevention of Corruption Act, 1988 (in short, "1988 Act"), he has been sentenced to rigorous imprisonment for 2(two) years with fine of Rs. 5,000/- (Rupees five thousand) and in default, further rigorous imprisonment for 2(two) months. The case against the accused/appellant was initiated on the basis of the F.I.R. lodged by the PW 21; who, at that point of time, was the Inspector of Police, Vigilance and Anti-Corruption, Assam, Guwahati. In the F.I.R., it was alleged that while conducting the Enquiry No. RE 40(6)/88, it was gathered that the accused/appellant, an IAS Officer working in the capacity of Labour Commissioner, Assam, Guwahati had acquired positive assets in his name comprising of land, building and movable properties together with bank deposits etc. and also positive assets in the name of his son Dipankar Barua in the form of oil tanker bearing registration No. AMK-5318 while he was a college student in the year 1981 and also positive assets in the name of his wife Chitra Barua in the form of land and building alongwith negative assets already spent by him. It was alleged in the F.I.R. that grand total of all natures of assets stood at Rs. 16,15,562/- and against those assets accused put account for Rs. 8,20,409/- and regarding the balance of Rs. 7,95,152/-, the accused could not satisfactorily account for it. 2. On the basis of the F.I.R., the then Officer-in-Charge of ACB Police Station registered ACB Police Station Case No. 24/1989 under Section 13(1)(e) read with Section 13(2) of the 1988 Act. On completion of the investigation, charge under the aforesaid provisions had been framed against the accused/appellant, which is as follows:-- "During the period from 20.8.1956 to 30.9.1989 being a public servant in the employment of the Government of Assam, you served as such at different places of Assam in different capacity. During the above mentioned service period you had a total income of Rs. 10,16,043.40 P from the known source of income and out of the said sum, you incurred expenditure to the tune of Rs. During the above mentioned service period you had a total income of Rs. 10,16,043.40 P from the known source of income and out of the said sum, you incurred expenditure to the tune of Rs. 9,30,962.41 P thus leaving a savings of Rs. 85,080.99 P. However during your service period, you acquired huge properties, purchase land and constructed houses over the same at P.P. Road, Rehabari, purchased Fiat Car No. WMC-6854, had savings in the bank and cash amounting to. Rs. 1,44,538.18 P. You also purchased land in the name of your wife Smti Chitra Baruah at Narikal Basti and at Sarusagai and constructed commercial building and warehouse over the said land. You also purchased two oil tankers in the name of your minor son Dipankar Baruah. Thus during the period of your service as stated above you and on your behalf, your wife Smti Chitra Barua and son Dipankar Barua were found in possession of total property valued at Rs. 26,61,503.83 P. After deducting your savings you had excess property to a tune of Rs. 25,76,000/- for which you cannot satisfactorily account for and which is disproportionate to your known source of income. You have therefore committed the offence of criminal misconduct as defined under Section 13(1)(e) of P.C. Act, an offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and I hereby directed that you be tried on the said charge." 3. The charge having been read over and explained to the accused/appellant, he pleaded not guilty and claimed to be tried. Hence, trial commenced during which the prosecution examined 21 (twenty-one) witnesses. Defence also examined 3(three) witnesses including the accused/appellant and his son, Dipankar Barua. He also examined his Chartered Accountant as DW 2. 4. I have heard Mr. P. Kataki, learned counsel for the accused/appellant and have also heard Mr. K.A. Majumder, learned Additional Public Prosecutor, Assam. I have also perused the entire materials available on record. 5. Mr. Katakei, learned counsel for the appellant submits that the entire investigation was vitiated in view of the fact that the same was conducted by the Inspector of Police (PW 21) in violation of the provisions of Section 17(2) of the 1988 Act. I have also perused the entire materials available on record. 5. Mr. Katakei, learned counsel for the appellant submits that the entire investigation was vitiated in view of the fact that the same was conducted by the Inspector of Police (PW 21) in violation of the provisions of Section 17(2) of the 1988 Act. He submits that coupled with this when there was prejudice to the defence of the accused, the entire investigation was illegal based on which no charge could have been framed against the accused/appellant. In this connection, he has placed reliance on a decision of the Apex Court in State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri, reported in, (2006) 7 SCC 172 . Referring to the deposition of PW 21, he submits that the purported investigation carried out by him was an empty formality and that he simply relied on the materials forming the preliminary enquiry conducted by PW 2. It is his further submission in reference to the findings recording in paragraph 21 of the impugned judgment that there has been wrong recording of finding when tested in reference to the testimonies of DWs. 6. Mr. Mazumdar, learned Additional Public Prosecutor, Assam, on the other hand, submits that as recorded in paragraph 15 of the impugned judgment, there was due authorization of the Inspector of Police, i.e. PW 21, by the Superintendent of Police and thus, there was no illegality in conducting the investigation by the said witness. He further submits that the accused/appellant cannot get himself absolved on the basis of the evidence adduced by the DWs inasmuch as when the said evidence is tested in reference to the evidence adduced by the PWs, there is no manner of doubt that the charge levelled against the accused/appellant clearly stood established. 7. Second proviso to Section 17 of the 1988 Act makes it mandatory for carrying out the investigation with the order of a Police Officer not below the rank of a Superintendent of Police. Such authorization is required for the investigation pertaining to the offence under Section 13(1)(e) of the said Act. 7. Second proviso to Section 17 of the 1988 Act makes it mandatory for carrying out the investigation with the order of a Police Officer not below the rank of a Superintendent of Police. Such authorization is required for the investigation pertaining to the offence under Section 13(1)(e) of the said Act. Although in paragraph 15 of the impugned judgment, a finding has been recorded that there was authorization of officers not below the rank of Inspector of Police in the Vigilance and Anti-Corruption, Assam to investigate the offences arising out of the Prevention of Corruption Act, 1988 Act by notification dated 28th June, 1991 issued by the Government of Assam in the Political (A) Department under the signature of the Commissioner and Secretary but as submitted by Mr. Kataki, learned counsel for the appellant the said notification was neither exhibited nor produced during trial. It is his further submission that even if the said notification was in existence but for the purpose of the particular investigation involved in this case, there ought to have been a specific order of the Superintendent of Police authorizing the PW 21 to conduct the investigation. 8. In Surya Sankaram Karri (supra), the Apex Court dealing with the provisions of the 1988 Act held that authorization by a Superintendent of Police in favour of an Officer so as to enable him to carry out investigation in terms of Section 17 of the Act is a statutory one. The expression "shall" makes it mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfill the statutory requirements laid down therefore in terms of the second proviso, the burden undoubtedly, will be on the prosecution to prove the same. In paragraph 16 of the said judgment, it has been held thus:-- "16. The approach of the learned Special Judge, to say the least, was not correct. When a statutory functionary passes an order, that too authorizing a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in administrative law. The statutory functionaries are enjoined with a duty to pass written orders." 9. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in administrative law. The statutory functionaries are enjoined with a duty to pass written orders." 9. On being pointed out as to what prejudice was caused to the defence, Mr. Kataki, learned counsel for the appellant referring to the evidence of PW 21 submits that the said Investigating Officer did not independently record the statements of the witnesses under Section 161, Cr.P.C. According to him, he simply placed reliance on the materials of the preliminary investigation that was carried out by the PW 2. When the said submission is tested in reference to evidence of PW 21, it is found that in the cross-examination although he stated that he had recorded the statement of the witnesses in the enquiry but admitted that the statements were not available in his diary. He denied the suggestion that he did not make any separate enquiry before lodging the F.I.R. To quell any doubt, I have verified the record to find out whether any independent statement of the witnesses had been recorded under Section 161, Cr.P.C. The records do not reveal recoding of any such statement by the Investigating Officer. Such a course adopted by the Investigating Officer as submitted by Mr. Kataki, learned counsel for the appellant naturally caused prejudice to his defence inasmuch as he was deprived of his cross-examination in reference to the statements made by the witnesses under Section 161, Cr.P.C. 10. As regards the second submission made by Mr. Kataki, referred to above, the learned trial Court has held thus:-- "21. The accused while giving evidence under Section 315, Cr.P.C. stated that his house was rented out in the year 1972 to 1975 to FCI vide Ext. A and the total rent received from rent was Rs. 50,400/- during the period from 1972 to 1975. It appears that the said amount has been included in the income of accused with effect from 20.08.56 to 31.10.88 vide Ext. 4. The accused further stated that the amount of Ext. 17 was not taken into consideration in the matter of assessment of total income. 50,400/- during the period from 1972 to 1975. It appears that the said amount has been included in the income of accused with effect from 20.08.56 to 31.10.88 vide Ext. 4. The accused further stated that the amount of Ext. 17 was not taken into consideration in the matter of assessment of total income. Accused Sri Sudhin Baruah (DW 1) has deposed that the house was rented to the office of the Board of Prevention and Control of Water and Air Pollution Assam from 20.2.81 to 14.5.84 and he received an amount of Rs. 1,38,000/- (Rupees one lakh thirty eight thousand only). Now on scrutiny of Ext. 4 it appears that the said income of accused was not included and as such with the inclusion of the said amount the total income of accused would be (Rs. 8,20,409.05 + Rs. 1,38,000.00) = Rs. 9,58,409.05. Accused Sri Sudhin Baruah DW 1 further deposed that his building was rented out to ASEB from August, 1984 to 1989 and he had received an amount of Rs. 2,52,000.00 (Rupees 2 lakh fifty two thousand only). Now from Ext. 12 the information regarding house rent furnished by Additional Chief Engineer (RE) AsEB shows that the owner of the building was Sri Dipankar Baruah as per agreement, who is the son of the accused. So the said amount cannot be tagged with the income of the accused during check period." 11. The aforesaid findings recorded by the learned trial Court, however, does not refer to the evidence adduced by DW 1, who, on his re-examination stated that he has one building at Rehabari and the same was constructed in the year 1970. The building was let out to the ASEB in the year 1984 for 3(three) years at a time. He also stated that the agreement was executed by his son Dipankar Barua (DW 3) on his behalf. He categorically stated that his son used to receive the rent by way of cheque from the ASEB and out of the said amount, he used to give him Rs. 3,600/- (Rupees three thousand six hundred) per month as his share. He also categorically stated that whatever money he had received from his son, he had shown in his income tax return. 12. DW 2 is the Chartered Accountant, who was also further examined on 24th May, 2007. 3,600/- (Rupees three thousand six hundred) per month as his share. He also categorically stated that whatever money he had received from his son, he had shown in his income tax return. 12. DW 2 is the Chartered Accountant, who was also further examined on 24th May, 2007. He, in his deposition stated that for the period ending 31st March, 1986 total rental income from DW 3 was shown as Rs. 43,800/- (Rupees forty three thousand eight hundred) in the income tax return file of the accused/appellant for the financial year 1986-87 and for all subsequent years. Thus, from the evidence of DW 2, the defence had shown that out of the total rental income in respect of the premises in question received by DW 3, an amount of Rs. 3,600/- (Rupees three thousand six hundred) per month had been paid to the accused/appellant and the said amount was shown in his income tax return. 13. DW 3 also in his further examination on 24th May, 2007 corroborated the same with his following statement:-- "My father constructed a building at Pioli Phukan Road, Rehabari long before. The building was let out to ASEB in the year 1984 for five years. To that effect there was a rent agreement and I executed the agreement with ASEB on behalf of my father. I used to receive the rent at the rate of Rs. 5,500/- per month from August, 1984 to July, 1987 and again 1987 onwards I used to receive rent at the rate of Rs. 7,000/- per month. The payments were made by way of cheque by ASEB. All the amounts were deposited in my personal account and which were reflected in my income tax returns. Out of the total amount received on rent I used to pay Rs. 3,600/- per month to my father and a ground rent of Rs. 50/- per month. Which comes total amount Rs. 43,800/- annually. This amount has been shown in my income tax return." 14. The aforesaid defence statements when tested in reference to the above quoted finding of the learned trial Court in paragraph 21 of the impugned judgment, we do not find any mention of the said testimonies of DWs, by which the amount in question was explained. 15. 43,800/- annually. This amount has been shown in my income tax return." 14. The aforesaid defence statements when tested in reference to the above quoted finding of the learned trial Court in paragraph 21 of the impugned judgment, we do not find any mention of the said testimonies of DWs, by which the amount in question was explained. 15. In Ashok Tshering Bhutia v. State of Sikkim, reported in, (2011) 4 SCC 402 , setting aside the conviction of the accused/appellant, the Apex Court in reference to the accounts involved in the case and also referring to its decision, (1987) Supp. SCC 379, State of Maharashtra v. Pollonji Darabshaw Daruwalla, held thus:-- "48. In view of the above, at the most a sum of Rs. 2,71,613.69 remained unexplained. The appellant entered into service in 1972 and there is no break-up so far as assets and expenditures, etc. are concerned in the charge-sheet though the check period covered both the Acts i.e. the PC Acts, 1947 or 1988. Even if the said amount is spread over the period from 1987 to 1996, the alleged unexplained income remains merely a marginal/paltry sum which any government employee can save every year." 16. As in the said case, in the instant case also, the period involved is from 1956 to 1989 covering about 33(thirty-three) years. In that kind of a situation, it will be totally unsafe to convict the accused/appellant, as has been done by the impugned judgment of conviction. 17. For all the aforesaid reasons, I am inclined to allow this appeal by setting aside the impugned judgment of conviction dated 18th July, 2007 passed by the learned Special Judge, Assam in Special Case No. 2(A)/1990. The accused/appellant is already on bail in terms of the order passed on 14th September, 2007 in Misc. Case No. 3402/2007. The bail bond shall stand discharged. The Registry shall send down the LCR to the learned trial Court alongwith a copy of this judgment.