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2022 DIGILAW 1033 (GAU)

Abul Kalam Azad v. State of Assam

2022-09-16

ROBIN PHUKAN

body2022
JUDGMENT : Robin Phukan, J. Heard Mr. M.P. Sarma, learned counsel appearing for the petitioner. Also heard Mr. D, Das, learned Addl. P.P., Assam appearing for the State/respondent. 2. This petition under Sec. 482 of the CrPC, is preferred by the petitioner, Md. Abul Kalam Azad for quashing of the criminal proceeding and also the order dtd. 3/3/2020, passed in of G.R. Case No.687/2010, pending before the Court of learned Addl. CJM, Karbi Anglong at Diphu. 3. The factual background leading to filing of the present petition may be briefly stated as under : "On 12/11/2010, the i/c District Commandant, Home Guards, Diphu in Karbi Anglong District, Mr. Harmohan Das lodged one FIR with the officer-in-charge, Manja P.S. to the effect that one contractor namely Md. Muslimuddin, proprietor of M/s. M.U. Enterprise of village Ag Mandia, District Barpeta was allotted the work of construction of Assam Type Barrack with N.C.O. room at District Training Center, Manja, Karbi Anglong. But, even after getting the full payment for the work, he had failed to complete the work. Upon the said FIR, the Officer-in Charge of Manja P.S. has registered the Manja P.S. Case No.35/2020, under Ss. 406/420 IPC and endorsed SI Biren Sarma to investigate the same. The I.O. then visited the place of occurrence, examined the witnesses, seized some documents preparing seizure list, and after completion of the investigation, the I.O. had laid the charge sheet against three persons namely: (1) contractor Md. Muslimuddin, (2) Sri Paresh Hazarika and (3) Abul Kalam Ahmed (Azad) to stand the trial in the Court, under Ss. 406/420 of the IPC". 4. Muslimuddin, (2) Sri Paresh Hazarika and (3) Abul Kalam Ahmed (Azad) to stand the trial in the Court, under Ss. 406/420 of the IPC". 4. Being aggrieved, the petitioner filed the present petition for quashing the criminal proceeding on the ground that the petitioner was working as Tracer in the office of the Director General of Police, Guwahati, Assam and he never discharged any work in the construction cell of D.G.C.D. and C.R. H.G. and that he has never issued any certificate falsely identifying himself as staff of the office of construction cell of D.G.C.D. and C.R. H.G., and that the certificate was issued from the construction cell of D.G.C.D. and C.R. H.G., Assam and the petitioner had never discharged his work as officer of the said D.G.C.D. and C.R. H.G., Assam, and that the learned Court below has failed to consider the fact that the petitioner was not working as Sub-Engineer and he was not entrusted with the measurement book of the work for inspection of the work and as such framing of charge against him is liable to be set aside, and that the charge was framed against the petitioner on the ground that the order of taking cognizance was not challenged by the petitioner, and that the authority has not released the bill on the basis of the certificate issued by him and that he had no authority to inspect the work site and to issue any certificate for completion of 100% work and that the petitioner had no mens rea and that the prosecution side has failed to establish the same and as he was working has a Tracer, he has no authority to issue any certificate, and therefore, it is contended for setting aside and quashing the criminal proceeding pending against him. 5. Mr. M.P. Sarma, learned counsel for the petitioner submits that the petitioner was serving as a Tracer in the office of the Chief Engineer, PWD (Roads), Chandmari, Guwahati and he was deputed as Tracer in the office of the Director General of Police, Guwahati, Assam and working there since 13/11/2000 to April, 2015 and that no prosecution sanction was obtained against him and no prima facie case is made out against him and he had not committed any offence of cheating and criminal breach of trust and therefore, it is contended to allow this petition. 6. On the other hand, Mr. 6. On the other hand, Mr. D. Das, learned Addl. P.P., Assam submits that the learned Court below, vide order dtd. 3/3/2022, had framed charge against the petitioner, under Sec. 420 IPC, and while framing the charge, the learned Court below has considered the issue of prosecution sanction and based on a judgment of co-ordinate Bench of this Court in Criminal Petition No.494/2012 (Subhamoy Gupta vs. State of Assam) and fifty other Criminal Petitions, had held that there is no nexus between the Act constituting the offence and the Act in discharge of official duty, no prosecution sanction is required in such cases, if the alleged offence relates to Sec. 120B, 406, 409, 420, 471 IPC. Thus, in that case no prosecution sanction is required and the learned counsel for the petitioner has failed to distinguish the case of the petitioner from the aforesaid case. Referring to the record of learned Court below and the case diary produced before this Court, Mr. Das, learned Addl. P.P., Assam further submits that the I.O. has collected sufficient materials against the petitioner during the course of investigation and the learned Court below has rightly framed the charge against him and therefore, Mr. Das contended to dismiss the petition. 7. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the LCR and the case diary produced before this Court. 8. It appears that while the petitioner was working as a Tracer in the office of the Director General of Police, Guwahati, he has issued one completion certificate to the contractor Md. Muslimuddin and on the basis of the said certificate, the authority has released the entire bill amount to the said contractor and even receiving the full payment, the contractor has failed to complete the work allotted to him for construction of Assam Type Barrack with N.C.O. room at District Training Center, Manja, Karbi Anglong. He has issued the said certificate on the request of contractor Md. Muslimuddin and the I.O. has seized the said certificate during investigation. Thus, complicity of the petitioner with the offence alleged in the FIR is apparent on the face of the record and it appears that the learned Court below has rightly framed the charge against the petitioner under Sec. 420 IPC. 9. Muslimuddin and the I.O. has seized the said certificate during investigation. Thus, complicity of the petitioner with the offence alleged in the FIR is apparent on the face of the record and it appears that the learned Court below has rightly framed the charge against the petitioner under Sec. 420 IPC. 9. Though the learned counsel for the petitioner submits that the learned Court below has framed the charge against the petitioner in absence of prosecution sanction, as required under Sec. 197 of the CrPC, as at the relevant time he was serving as Tracer in the office of the Director General of Police, Guwahati, it appears that the learned Court below, while framing the charge against him, has taken into account of the fact that, on the basis of the certificate issued by the petitioner, the contractor has withdrawn the full payment of the bill, yet it was not his duty to issue such a certificate to the contractor. The petitioner in his petition, admitted in the Ground No.'C' of Para 12 of the petition that a Tracer has no authority to issue such certificate and as such, there is no nexus between the act constituting the offence and the act in discharge of his official duty and as such, to the considered opinion of this Court, the petitioner is not entitled to the benefit provided under Sec. 197 CrPC. 10. Thus, having considered the submission of learned Advocates of both sides and also considering the facts and circumstances on the record, this Court is of the view that this is not a fit case where the extra-ordinary power under Sec. 482 CrPC can be invoked to quash the proceeding. 11. In the result, I find no merit in the petition and accordingly the same stands dismissed. Since the case was registered in the year 2010, and trial is still going on, we would like to request the learned Court below to make an endeavour to conclude the trial at early an date. 12. Stay, if any, granted earlier stands vacated.