Gauhati High Court
Suman Roy And Anr vs The State Of Assam And Anr on 4 May, 2020
Author: Ajai Lamba
Bench: Ajai Lamba
Page No.# 1/7
GAHC010252262018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 1175/2018
1:SUMAN ROY AND ANR.
S/O LATE MANURANJAN ROY, R/O R/O HOUSE NO. 29, ANANDA NAGAR,
OLD POST OFFICE, GUWAHATI, DIST. KAMRUP(M), ASSAM
2: JOYDEV BAISHYA
S/O LATE UMESH CHANDRA BAISHYA
R/O GUWAHATI REFINERY
SECTOR-II
PS NOONMATI
GUWAHATI
KAMRUP (M)
ASSA
VERSUS
1:THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM
2:J N CHANGMAI
INSPECTOR
FOOD
CIVIL SUPPLIES AND CONSUMER AFFAIRS
BI(EO) GUWAHATI ASSAM-78102
Counsel for petitioners : Mr. Z Kamar,
Mr. K Singha
Counsel for respondent No.1 : Mr. M Phukan
Additional Public Prosecutor, Assam Page No.# 2/7 BEFORE HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA 04.05.2020 Heard Mr. Z Kamar, learned counsel for the petitioners and Mr. M Phukan, learned Additional Public Prosecutor, Assam for the respondent.
2. The Court proceedings have been conducted by means of creating a Virtual Court with the help of technology, so as to maintain distance between the staff, Advocates and the Presiding Judge.
3. Sri Suman Roy and Sri Joydev Baishya have filed this petition under Section 482 CrPC for amalgamation of GR Case No.329/2013 corresponding to BI(EO) PS Case No.01/2013 registered under Sections 120(B)/406/407/408/409/420 IPC read with Section 7(1) of Essential Commodities Act, AND CBI Special Case No.5/2016 charged under Sections 120(B)/409/420/468/471 IPC and Sections 13 (1)(d), 13(2) of the Prevention of Corruption Act, 1988 which is pending in the Court of Special Judge, CBI, Assam, Guwahati. The petition also seeks quashing of GR Case No.329/2013 (supra).
The petition also seeks quashing of order dated 10.9.2018 passed by the Judicial Magistrate First Class, Kamrup (M), Guwahati in GR Case No.329/2013 (supra) vide which the application/petition No.1763/2018 dated 25.7.2018 was dismissed.
4. It appears that the petitioners herein filed petition/application No.1763/2018 dated 25.7.2018 in the Court of Judicial Magistrate First Class, Kamrup (M), Guwahati, with the prayers made in this petition. The Judicial Magistrate First Class, Kamrup (M), Guwahati, dealing with GR Case No.329/2013 (supra) considered the contention made on behalf of the petitioners-accused to the effect that CBI case and the case under adjudication were based on same factual matrix, arising out of same set of facts, occurrence and transaction.
The prosecution argued that the petition is not maintainable in law, as also in facts. There is no provision in law for closure of any case in the manner sought by the accused. The Court has no jurisdiction to amalgamate the case with the CBI case. The Magistrate also Page No.# 3/7 considered that Special Judge, CBI while passing the order of charge clearly discarded the plea of the accused by holding that investigation done by CBI in respect of the criminal offence and the investigation done by BI(EO) in respect of economic offence are of two different periods and as such the two cases are maintainable in two different Courts having appropriate jurisdiction.
The Judicial Magistrate First Class, Kamrup (M), Guwahati having considered the rival contentions held that though there appeared to be similarity in facts in the two cases, however, time period of occurrences was different. The informant as well as investigating agencies were different in both the cases. Accused persons are also not the same in both the cases. It has been concluded as a fact that both the cases are not the same case. The informant, investigating agency, the accused, and cause of action in each of the cases are different from the other.
So far as amalgamation is concerned the Judicial Magistrate held that the Court had no jurisdiction to decide the issue.
5. Even this Court has posed a query to Mr. Z Kamar, learned counsel for the accused as to under what provision of law such amalgamation can take place.
Reference has been made to Section 210 of Code of Criminal Procedure by Mr. Kamar, Advocate.
6. I have referred to provision of Section 210 Code of Criminal Procedure. In the facts and circumstances of this case, evidently Section 210 Code of Criminal Procedure cannot be invoked.
7. I have also taken into account the fact that the petitioners in this petition being accused in the CBI case (supra) preferred WP(C) 6468/2016 for quashing of the CBI case, including on the premise that GR Case No.329/2013 (supra) having been registered, CBI case be quashed.
8. Having referred to the pleadings of the writ petition, the following needs to be noticed specifically from the grounds of Writ:
"9. That the petitioners beg to state that the respondent No.2 on 10/01/2013 registered a FIR being BI(EO) PS Case No.01/2013 u/s Page No.# 4/7 120(B)/406/407/408/409/420 IPC read with section 7(1) of the Essential Commodities Act, corresponding to such FIR, a GR case has been registered i.e. GR Case No.329/2013. Thereafter, the BI(EO) submitted Charge Sheet No.9 dated 31/12/2013 in the said GR Case. But the respondent No.1 without any application of mind registered another FIR No.RC0172014A0004 dated 30/06/2014 for the same incident for which the BI(EO) has already filed a Charge Sheet. Therefore, the second FIR as well as charge sheet is nonest in the eye of law inasmuch as impermissible in law and therefore, the same is liable to be quashed at the hands of this Hon'ble Court.
10. That the petitioners beg to state that the respondent No.1 and 2 has lodged the FIRs out of the same incident. The petitioners beg to state that the allegation against the petitioners in the Charge Sheet is that the petitioners loaded un-accounted Straight Run Naptha (SRN) in the Tanker No.MN-01-7767 therefore, the subject matter of both the FIRs and/or Charge Sheets are same and if both the cases are allowed to continue, the same will highly prejudice the petitioners.
11. That the petitioners beg to state that the second FIR lodged by the respondent No.1 in respect of same offence is not only impermissible in the eye of law but also it violates the provisions of Article 20 and 21 of the Constitution of India in as much as a fresh investigation based on second or successive FIRs filed in connection with same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR has been registered is not tenable in the eyes of law and liable to be interfered with by this Hon'ble High Court.
12. That it is stated herein that the respondent No.1 lodged the FIR dated 30/06/2016 without any application of mind. The respondent No.1 failed to consider the fact that the BI(EO) has lodged a FIR in the same incident way back in the year 2013 and also submitted charge sheet. Therefore, until and unless, the respondent No.1 took permission from the competent court to re-investigate and/or further investigate the matter, the respondent No.1 has no sanction and authority under law to investigate the same issues again not to say to register another case against the same accused persons out of same incident."
9. I have also taken into account that the petition filed by the petitioners for quashing of the CBI case on similar grounds as taken in this petition was dismissed vide judgment dated 17.1.2019 rendered in WP(C) 6468/2016 titled Suman Roy & another vs. The CBI & another.
Paragraphs 26, 27, 28, 29, 30, 31 and 32 of judgment dated 17.1.2019 read as under:
"26. In view of the above, we are unable to accept the contention of the learned senior counsel for the petitioner that the series of events that took place in loading the extra petroleum product on different dates over the period of time are a result of the same conspiracy. As in the absence of the requirement of a further meeting of mind on every given date to put in place the 36 cm rod, the Page No.# 5/7 rod will not be in place and consequently the loading of extra petroleum cannot be undertaken, a conclusion can be arrived that a further meeting of mind is essential for every given date on which the extra petroleum got loaded in the tanker lorry. The requirement of a further meeting of mind itself can be construed to be the basis to conclude that the events of loading extra petroleum product on the tanker lorry on the various dates over the period of time did constitute separate conspiracies.
27. A further consideration would also be that in the event a conclusion is arrived that the series of events on different dates leading to the loading of extra petroleum product is a result of a single conspiracy, the result thereof would be that the subsequent FIR and Charge-Sheet filed by the CBI in the Court of the Special Judge would be unsustainable warranting an interference. Any interference of the FIR and the Charge-Sheet would not entail the accused petitioners to avoid facing the trial in respect of the charges contained therein. The resultant situation would be that the Charge-Sheet submitted by the CBI in the Court of the Special Judge would now have to be withdrawn and be a part of a supplementary Charge-Sheet in the proceeding initiated by the BIEO in the Court of the learned Chief Judicial Magistrate, Kamrup(M).
28. It is taken note of that the Charge-Sheet filed by the CBI resulting in Special Case No.05/2016 in the Court of the Special Judge, Assam, was under
Sections 120(B)/420/471 of the IPC read with Section 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988. Accordingly, if the Charge-Sheet No.09/2013 filed by the CBI would be required to be a supplementary Charge-Sheet in the BIEO Case before the Chief Judicial Magistrate, Kamrup(M), the Court of the learned CJM, Kamrup(M) would also have to decide the charges against the accused petitioners even under Sections 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988.
29. Section 3(1) of the Prevention of Corruption Act, 1988 provides that the Central or the State Government may by notification in the official gazette appoint as many Special Judges as may be necessary to try, amongst others, any of the offences punishable under the said Act. Section 13(2) of the Prevention of Corruption Act, 1988 provides that any public servant who commits criminal mis-
conduct as indicated in Section 13(1), shall be punishable as provided therein. In other words for committing a criminal mis-conduct as indicated in Section 13(1) a person shall be punishable under Section 13(2) and such offence punishable under Section 13(2) can be tried by a Special Judge appointed under Section 3.
30. Further Section 4(1) of the Prevention of Corruption Act, 1988 provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, the offences speceified in Section 3(1), which includes the offences punishable under Section 13(2) in respect of the criminal mis-conduct as specified therein, amongst others, Sections 13(1)(d), can Page No.# 6/7 be tried by a Special Judge only.
31. Accordingly, if the Charge-Sheet in Special Case No.05/2016 filed by the CBI in the Court of the learned Special Judge, CBI Assam is now to be treated as a supplementary charge-sheet in the BIEO case before the learned CJM, Kamrup(M), the accused persons in respect of the Charge-Sheet No.09/2013 would also have to be tried by the learned CJM, Kamrup(M). Such a proposition would be unacceptable in view of the provision of Section 4(i) of the Prevention of Corruption Act, 1988 inasmuch as, the Charge-Sheet No.09/2013 also being under Section 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 the same can be tried by a Special Judge only.
32. In view of the above even if the contention of the petitioners that the series of events of loading extra petroleum in the given tanker lorry was a result of a single general conspiracy is accepted, still the further contention for which it is made to the extent that the Charge-Sheet No.09/2013 in the Court of the Special Judege, CBI, Assam in Special Case No.5/2016 be set aside, and the same be treated as a supplementary charge-sheet in the Court of the CJM, Kamrup, Guwahati in the BIEO case, cannot be accepted."
10. It is, therefore, evident in effect that the contention raised by the learned counsel for the petitioners by virtue of this petition had already been raised while filing WP(C) 6468/2016, although while saying that the CBI case (supra) be dismissed because it was on the same grounds as in GR Case No.329/2013(supra). The context and the gist of the contention however, were the same.
11. From the above, it transpires that the issue in facts and law, was raised by these very petitioners by filing WP(C) No.6468/2016. The contention was rejected vide a detailed judgment dated 17.1.2019, portion of which has been extracted above.
Under the circumstances, similar contention raised by virtue of this petition is also rejected.
12. I also find that the CBI has not been impleaded as one of the respondents in the petition under adjudication.
13. For the reasons given above, I find no merit in this petition, which is hereby dismissed, however, with liberty to the petitioners to take recourse of law, if at later stage of proceedings Page No.# 7/7 a cause arises, and if so advised.
14. Let copy of this order be provided under the signature of the Court Master.
CHIEF JUSTICE Comparing Assistant