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2014 DIGILAW 563 (GAU)

Zakir Ahmed Choudhury v. State of Assam & 19 Ors.

2014-05-27

A.M.SAPRE, UJJAL BHUYAN

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A.M.Sapre, CJ. This is an intra-court appeal filed by the writ petitioner of WP(C) No.1580/2011 and Criminal Petition No.210/2011 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the order dated 21.03.2013 passed by the Single Judge in abovementioned writ petition. 2. By impugned order, the learned Single Judge disposed of two cases namely WP(C) No.1580/2011 and Criminal Petition No.210/2011 and while allowing in part criminal petition no 210/2011 and quashing the FIR impugned in this petition dismissed the WP(C) No. 1580/2011 filed by the appellant herein. 3. So the question, which arises for consideration in this appeal is whether learned Single judge was justified in allowing in part the criminal petition no 210/2011 and in consequence was justified in dismissing the appellant’s writ petition? 4. Facts of the case lie in a narrow compass. 5. The dispute in this appeal centers around officials of a State Government undertaking - Assam Power Distribution Company Ltd (for short herein after referred to APDC) and its subsidiary companies which is engaged in the business of distribution of electricity in State of Assam. The appellant and respondent nos. 5 to 20 are the employees working in these companies on different posts at all relevant time. 6. On 26.3.2010 an FIR was lodged by Deputy General Manager of APDC Silchar in Sadar Police Station Silchar -1 praying for holding an investigation in execution of one purchase order issued by APDC in favour of a company called -ACCON Ambikapatty Silchar. It was complained that the said purchase order was for supply and installation of one metering instrument at 33/11 KV Udharbond Sub Station for recording the energy consumption of M/s Ladi Steel Pvt Ltd Pangram, Udharbond. It was complained that in execution, installation and erection of the equipment in question at the site, lot of manipulation, and irregularities were found to had been committed by the officials responsible for its execution and by the supplier which resulted in causing losses to APDC and in turn to State exchequer. The FIR set out the details of manipulation, irregularities noticed in its execution/commission/erection and the consequent losses sustained by APDC. 7. The matter was accordingly investigated by the police authorities and eventually it resulted in filing of charge sheet no 931/2010 dated 30.9.2010 in court in special (Ele) case no. The FIR set out the details of manipulation, irregularities noticed in its execution/commission/erection and the consequent losses sustained by APDC. 7. The matter was accordingly investigated by the police authorities and eventually it resulted in filing of charge sheet no 931/2010 dated 30.9.2010 in court in special (Ele) case no. 5/2010 against the appellant who as stated supra is one of the employees of APDC and facing trial. 8. On 3.1.2011, another FIR bearing case no 01/2011 was filed in relation to the same matter or we may say arising out of the same matter with Bureau of Investigation (economics offence) P.S.Guwahati for commission of alleged offences under Section 120 (B), 406 and 408 and 420 of IPC. It was directed against respondent no 5 to 20 attributing their involvement in its execution. It was prayed in this FIR that the matter be probed from new angle to find out the involvement of respondent no 5 to 20 as conspirators who also indulged themselves in commission of several kind of manipulation/irregularities in execution of contract in question with a further prayer to launch prosecution against them and against others found responsible. 9. It is this FIR which was challenged by respondent nos. 5 to 20 in criminal petition no 210/2011 interalia on the grounds that once one FIR in relation to the incident was investigated by a particular investigating agency which resulted in filing of charge sheet in the court of law against an accused then in such event, the second FIR in relation to the same matter with another investigating agency against other person/s to probe the same incident cannot be entertained for undertaking fresh investigation. 10. It is this criminal petition which was allowed by the learned Single judge by impugned order essentially on the ground that since the second FIR was in relation to the same incident for which the first FIR was filed and secondly the subsequent FIR was filed before another investigating authority and hence it was not legally sustainable. It was accordingly quashed. The learned judge however granted liberty to the appellant to file Protest petition before the Trial court in case he wishes to do so for appropriate relief and allowed the Trial court to take recourse to the relevant provisions of CrPC to proceed against others in accordance with law and eventuality if arises. 11. It was accordingly quashed. The learned judge however granted liberty to the appellant to file Protest petition before the Trial court in case he wishes to do so for appropriate relief and allowed the Trial court to take recourse to the relevant provisions of CrPC to proceed against others in accordance with law and eventuality if arises. 11. So far as the appellant was concerned, he too had filed a writ petition challenging the charge sheet submitted against him in the special court. This petition was dismissed by the impugned order in the light of main order passed in criminal petition of respondent no 5 to 20 which has now given rise to filing of this appeal by the appellant (writ petitioner of WP(C) 1580/2011). 12. We have heard the learned counsel for the parties at length in the light of law laid down by Supreme Court in cases reported in (2010) 12 SCC 254 Babubhai v. State of Gujarat & Ano., (2002) 1 SCC 714 Kari Choudhury vs. Mst. Sita Devi & Ors., (2004) 13 SCC 292 Upkar Singh vs. Ved Prakash & Ors. (2013) 5 SCC 148 Surender Kaushik & Ors, vs. State of Uttar Pradesh & Ors. and (2012) 1 SCC 130 Shivshankar Singh vs. State of Bihar & anr. to examine the legality and correctness of the impugned order and the liberty granted therein to the parties concern. 13. Heard Mr. PK Roy, learned counsel for the appellant and Mr. GN Sahewalla, learned senior counsel for the respondents. 14. Having heard the learned counsel for the parties and on perusal of the record of the case, we have formed an opinion to dispose of this appeal with observations and liberty as mentioned herein below. 15. In our considered opinion, keeping in view the law laid downby Supreme Court in the cases cited at the bar and having regard to the nature of controversy involved in the two FIRs and the fact that pursuant to earlier FIR (first one), even the charge sheet has now been submitted in the special court for deciding the issue and bring to its logical conclusion on merits, in our view, it would be just and proper for the appellant (who is one of the accused in the said case) to file a complaint under the provisions of Cr. P.C in a pending case by raising his grievance and on such complaint being filed, the concern court would be at liberty to examine the same strictly in accordance with law in the light of the allegations made therein and accordingly may consider proper to direct holding of an investigation by the same police agency which had investigated the matter earlier on the strength of earlier FIR. Indeed this procedure is legally permissible and can be resorted to by the parties concern. We find no reason that if the case on facts is held made out, then the court concern possess jurisdiction to pass appropriate order in the interest of justice for proper adjudication of the matter on merits for and against any person concern. 16. We, therefore, do not, while hearing this matter, wish to express any opinion on the merits and demerits of the case and grant liberty to the appellant to take recourse to the aforementioned legal remedy. We also make it clear that the court concern while deciding the issue, would not be influenced by our observations and of the learned Single judge in the impugned order and decide the matter strictly in accordance with law on the basis of material filed by the parties. We also consider apposite to mention that in addition to the aforementioned remedy, the court concern would be equally empowered to take recourse to the provisions of Section 319 and other related provisions of the Cr.P.C. while trying the case on merits and depending upon the evidence which may be adduced may proceed against any person/s in accordance with law. 17. Though learned counsel for the appellant made attempt to urge the issues on merits contending that learned single judge committed an error in quashing the second FIR but in the light of what we have observed supra, it may not be necessary for us to go into the issues in this appeal and instead allow the trial court to probe the issue on the merits. 18. In our view, with the legal remedy available to the appellant and secondly in the light of our observations made herein, the impugned order , even if allowed to stand, would not cause any prejudice to the parties much less to the appellant . 19. 18. In our view, with the legal remedy available to the appellant and secondly in the light of our observations made herein, the impugned order , even if allowed to stand, would not cause any prejudice to the parties much less to the appellant . 19. It is with these observations and liberty, we dispose of this appeal and accordingly vacate the interim stay granted and direct the concern court to ensure expeditious disposal of the trial within one year as an outer limit. No cost.