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2014 DIGILAW 870 (GAU)

Ram Milan v. Central Bureau of Investigation

2014-09-12

PRASANTA KUMAR SAIKIA

body2014
JUDGMENT Prasanta Kumar Saikia, J. 1. This criminal revision petition under section 482 Cr. P.C. has been directed against the order dated 05.06.2014 passed by the Special Judge, CBI, Assam, Guwahati in Special Case No. RC 4(A)/2013-GWH. By the aforesaid order, the learned Special Judge, CBI, Assam, Guwahati refused to accept the final report and instead directed the I.O. to submit charge sheet and if necessary to go for further investigation. Being aggrieved by the aforesaid order, the petitioner has come up before this Court alleging that the order, under challenge, is unsustainable since it was rendered not accordance with the prescription of law. 2. Heard Mr. R. Dubey, learned counsel appearing for the petitioner. Also heard Mr. P.N. Choudhury, learned Standing Counsel, CBI, Assam appearing for the respondent. 3. With the consent of the learned counsel appearing for the parties, I propose to dispose of the matter at the stage of motion itself. 4. In order to appreciate the contention, raised by the petitioner in this proceeding, I find it necessary to reproduce the order which is questioned here. Such order is as follows: "RC4 (A) 2013-GWH ORDER 05.06.2014 The allegations which have resulted to the institution of the present case, in brief, are as follows: - Accused Sh. Ram Milan was posted as Commander, 763 BRTF, Khirmu, Tawang District of Arunachal Pradesh. On 20.3.2013 while Sh. Ram Milan was traveling by Dibrugarh - New Delhi Rajdhani Express in AC 1st class then the CBI officials in association with the Railway Vigilance and Government Railway Police officials conducted surprise check in the said train and after checking the bags of Ram Milan recovered from his possession an amount of Rs. 15,03,000/- (Rupees fifteen lacs three thousand) for which he could not offer any satisfactory explanation about the source of the said amount. CBI seized the recovered money and arrested said Ram Milan. Thereafter the CBI investigated the case and after completion of investigation submitted Final Report. I have perused the Final Report along with the statements of the witnesses recorded under Section161 Cr. P.C. during the course of investigation. According to the Final Report the check period in the case was from 01.03.2013 to 20.03.2013. Thereafter the CBI investigated the case and after completion of investigation submitted Final Report. I have perused the Final Report along with the statements of the witnesses recorded under Section161 Cr. P.C. during the course of investigation. According to the Final Report the check period in the case was from 01.03.2013 to 20.03.2013. It reveals from the FIR that the Investigating Officer on the basis of various figures of income, expenditure and assets arrived at during investigation has computed the disproportionate assets and found that Ram Milan has acquired disproportionate assets to the tune of Rs. 14,31,113/- during the check period. Now, on perusal of the statements of the witnesses recorded under section 161 Cr. P.C. it is found that Ram Milan in his initial statement stated before the I.O. that for awarding contracts he used to get money from the contractors from time to time and said Rs. 15 lacs (approx) was given to him by the contractor Sonam and other contractors. Subsequently said Ram Milan stated before the I.O. that someone had planted the money in his Brief case/Bags without his knowledge in order to ruin his career. The I.O. recorded the statements of several contractors who denied to have paid any money to Ram Milan for getting the contract works. It reveals that most probably for the aforesaid denial of the contractors the I.O. has taken into consideration the subsequent statement of Ram Milan that someone had planted money in his bags. Otherwise if the recovered amount is considered as assets/income of Ram Milan then there is ground to consider the said money as disproportionate to his income since after calculation of income, expenditure and assets during the check period an amount of Rs. 14,31,113/- have been found to be disproportionate which is more or less equivalent to the amount recovered from the possession of Ram Milan. That the claim of Ram Milan that the contractors paid him the said amount or his subsequent statement that someone had planted the money in bags are all his pleas and onus of proving those pleas lied on the accused and not to the prosecution. That the claim of Ram Milan that the contractors paid him the said amount or his subsequent statement that someone had planted the money in bags are all his pleas and onus of proving those pleas lied on the accused and not to the prosecution. Only because some contractors have denied to have paid money to Ram Milan cannot be a ground for the prosecution to believe that no money was paid by the contractors to Ram Milan for getting any contract work in lieu of contract then also there is any possibility by the contractors to admit the fact. On the other hand, the subsequent statement of Ram Milan that someone had planted the said money in his bags does not appear to be believable. Firstly, it cannot be believed that any outsider would plant such huge money in the bags of Ram Milan so properly and in nice shape without his knowledge. Again from the statement of Pawan Kumar who plied the vehicle of Ram Milan and helped him in boarding the train nothing has revealed as such pointing to the possibility of planting of money by any person to the bags of Ram Milan. Another thing to be looked into is that though Ram Milan was entitled to go by aeroplane but he opted for going by train and in this respect he initially submitted that he avoided Air journey as because there was possibility of detection of huge cash during X-ray checking though subsequently he shifted from this statement. That Ram Milan was entitled to go by Air this fact also reveals from the statement of one Sh. K.N. Bhatt. Who has stated that as per the movement order Ram Milan was supposed to go by Road/Air and he does not know as to why Ram Milan had taken the journey by train from Guwahati instead of availing flight/air. So, if we consider the entire statements of the witnesses recorded under section 161 Cr. P.C. then we are left with no alternative but to believe the initial statement of Ram Milan which he gave first before the Investigating Officer after recovery of the amount. While computing the disproportionate assets of Ram Milan in the Final Report the I.O. has included the recovered amount of Rs. P.C. then we are left with no alternative but to believe the initial statement of Ram Milan which he gave first before the Investigating Officer after recovery of the amount. While computing the disproportionate assets of Ram Milan in the Final Report the I.O. has included the recovered amount of Rs. 15,03,000/- in the column 'Assets acquired during the check period and after computation disproportionate assets of Ram Milan was found to the extent of Rs. 14,31,113/- which appears to be more or less equivalent to the amount recovered. So it appears that the recovered amount which has been included in the assets acquired during the check period more or less has become the amount of disproportion. As such, the opinion of the I.O. given in the Final Report that Ram Milan received good amounts of money as foreign allowance while getting foreign posting during 2006 to 2008 and these were invested in various fixed deposits and on maturity the amounts were utilized in the purchase of flats/lands etc. and also the taking of loans from different private persons during 2009, according to me, do not have any direct connection with the disproportionate amount. The disproportionate assets amounting to Rs. 14,31,113/- as I find, has resulted only due to the inclusion of recovered amount of Rs. 15 lacs (approx) in the assets acquired during the check period. Otherwise, there would have been no amount of disproportion. From our earlier discussion, the first statement given by Ram Milan to the I.O. in respect of the recovered amount has been found to be believable and his subsequent pleas appear to be afterthought. However, if Ram Milan succeeds in proving his plea that the recovered amount had been planted in his bags by someone then there may not be a case of disproportionate assets against him. But till that, according to me, prima facie there appears a strong case of disproportionate assets against accused Ram Milan. In the statements of the witnesses the recovery of money from the possession of Ram Milan has not been denied. The evidences collected by the I.O., so far, against Ram Milan, according to me, are not insufficient for launching prosecution. In view of the above, the Final Report/Closure Report dated 17.12.2013 filed in the case is not accepted. The I.O. is directed to submit charge sheet against accused Sh. The evidences collected by the I.O., so far, against Ram Milan, according to me, are not insufficient for launching prosecution. In view of the above, the Final Report/Closure Report dated 17.12.2013 filed in the case is not accepted. The I.O. is directed to submit charge sheet against accused Sh. Ram Malini in proper sections of law for accumulating assets disproportionate to his known source of income. However, before that, the I.O. is at liberty to collect further materials, if he feels necessary, for the purpose of prosecution case. Return the case diary and other relevant papers to the I.O. along with a copy of this order. Sd/-illegible Special Judge, CBI Assam, Guwahati." 5. It is evident from the order dated 05.06.2011 that while perusing the final report in the light of evidence, collected during the investigation, the learned court below finds it necessary not to accept the final report and as such, he directed the I.O. to submit charge sheet and allowed him to go for further investigation, if necessary. According to Mr. R. Dubey, learned counsel appearing for the petitioner, such an order is profoundly illegal. 6. In that connection, Mr. R. Dubey strenuously contends that under the law, a Magistrate cannot require police to submit charge sheet or closure report since the legislature, in their wisdom, find it necessary to leave such matters to police and police alone. It is, of course, a matter different all together that a Magistrate has full authority to disagree with the I/O if after conclusion of investigation, later chooses to file closure report. 7. It may be noted here that while forwarding a complaint under section 156(3) Cr. P.C. to the police or while directing the police to go for further investigation when police submit closure report after investigation, a Magistrate cannot require the police authority to submit charge sheet. It is always for the police to decide whether to submit charge sheet or closure report, commonly called as final report, on the conclusion of investigation depending on the materials, collected during investigation. 8. Situation being such, once a report under section 169 Cr. P.C. in the form of final report is submitted, the Magistrate has three options. He may (i) accept the report or (ii) take cognizance on the basis of materials, placed before him by the Investigating Agencies or (iii) direct further investigation. 8. Situation being such, once a report under section 169 Cr. P.C. in the form of final report is submitted, the Magistrate has three options. He may (i) accept the report or (ii) take cognizance on the basis of materials, placed before him by the Investigating Agencies or (iii) direct further investigation. But under no circumstances, a Magistrate, on exercising the power under section 156(3) of the Cr. P.C. or on his refusal to accept final report, submitted under section 169 Cr. P.C., can require the police to submit charge sheet. 9. However, when a complaint is filed before a Magistrate, when such a Magistrate instead of taking cognisance himself, chooses to forward such complaint to the police under section 156(3) Cr. P.C. for conducting investigation and when the police after investigation return such a case under a final report under section 169 Cr. P.C., the Magistrate would have options, more than what I have noted herein before. In that connection, we may profitably peruse the decision, rendered in the case of Vasanti Dubey vs. State of Madhya Pradesh reported in (2012) 2 SCC 731 . 10. But then, in the case aforementioned, Hon'ble Supreme Court has further held that it is beyond the competence of a Magistrate under the law to order police to submit charge sheet in a case when a complaint is sent to police u/s. 156(3) Cr. P.C., for investigation or when the Magistrate orders further investigation. The relevant part is reproduced below:- "19. -------------------------------------------- There is no power, expressly or impliedly conferred under the Code on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistrate and the police are entirely different, and though, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. 20. This position has been further reiterated and reinforced in a recent judgment of this Court delivered in Ram Naresh Prasad v. State of Jharkhand. 20. This position has been further reiterated and reinforced in a recent judgment of this Court delivered in Ram Naresh Prasad v. State of Jharkhand. Wherein it has been held that when the police submitted a final report of the investigation of the case which in colloquial term is called "closure report", the Magistrate cannot direct the police to submit the charge sheet. However, on the basis of the material in the charge-sheet, he may take cognizance or direct further investigation. In fact, this position is clearly laid down under section 190 read with Section 156 Cr. P.C. itself and the legal position has been time and again clarified by this Court in several pronouncements viz., in H.S. Bains v. State (UT of Chandigarh) wherein. Their Lordships have summarised the position as follows: "1. When a Magistrate receive a complaint, he may, instead of taking cognizance at once under section 190(1)(a) direct a police investigation under section 156(3) ante; 2. Where, after completion of the investigation, the police sends an adverse report under section 173(1), the Magistrate may take any of the following steps: (i) If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint. (ii) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under section 190(1)(a)and proceed to examine the complainant under section 200. (iii) Even if he disagrees with the police report, he may take cognizance at once upon the complaint, direct an enquiry under section 202 and after such enquiry take action under section 203. However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant, the Magistrate cannot direct the police to straightaway submit the charge sheet as was the view expressed in Abinandan Jha which was relied upon in Ram Naresh Prasad." 11. It may also be noted here that where sanction or permission is required before taking cognizance of certain offences, the Magistrate needs to refer the matter to the proper authority to consider the matter pertaining to granting sanction or permission for Magistrate's taking cognisance of such offence(s) on final report which, according to Magistrate, discloses some offences which, under the law, need previous sanction or permission. 12. 12. Therefore, if a Magistrate while forwarding a complaint to the police or while directing further investigation also asks the police to submit charge sheet after investigation or after further investigation, as the case may be, such order is liable to be quashed and set aside since it is against the arrangements of the things, so made in the Code of Criminal Procedure. 13. Unfortunately, that was exactly what was done by the learned Special Judge, CBI, Assam, Guwahati in the proceeding aforementioned. That being the position, the order, under challenge, is unsustainable in law and the same is, therefore, liable to be quashed and set aside. Consequently, the order in question stands quashed and set aside. 14. Learned Special Judge, CBI, Assam, Guwahati would, however, be at liberty either to accept the final report disagreeing with the conclusion arrived at by the I.O. or he may, if he so thinks, order further investigation in the case aforementioned without however, indicating the result of such investigation. With the above observations, this proceeding stands disposed of. Disposed off.