Gauhati High Court
Page No.# 1/ vs Central Bureau Of Investigation And Ors on 6 January, 2026
Page No.# 1/10
GAHC010122582012
2026:GAU-AS:322
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./522/2012
NIRMALAYA BHATTACHARJEE
S/O LT. NALINI KANTA BHATTACHARJEE P/47/BIHUTOLI, JHEEL ROAD,
BNAK PLOT KOLKATA-700075.
VERSUS
CENTRAL BUREAU OF INVESTIGATION and ORS
2:SRI ASHIM KUMAR BHATTACHARJEE
S/O LT. MADHUSUDAN BHATTACHARJEE
R/O SASTITOLA STREET
P.O. RISHRA
DIST. HOOGLY
WEST BENGAL PIN- 712248.
3:SRI ADHAR KUMAR BARMAN
S/O LT. RAMESH BARMAN R/O HAFLONG TOWN NEAR FISHERY OFFICE
P.O. HAFLONG DIST. N.C. HILLS
ASSAM
PIN- 788819
Advocate for the Petitioner : S K GHOSH, S P CHOUDHURY,S C KEYAL,G SARMAH,B
KAUSHIK
Advocate for the Respondent : , SC, CBI,,,
Page No.# 2/10 BEFORE HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR For the Petitioner : Mr. S K Ghosh For the Opposite party : Ms. M Kumari Date of Hearing : 01.11.2025 Date of Judgment : 06.01.2026 JUDGMENT AND ORDER (CAV) Heard Mr. S K Ghosh, learned counsel for the petitioner. Also heard Ms. M Kumari, learned Retainer counsel, CBI for the respondent.
2. The challenge in the present criminal revision petition is to an order dated 24.08.2012 passed by the learned Special Judge, CBI, Assam, in Special Case No. 04/2008, framing a charge against the petitioner, herein, under Sections 120B/403/420/468/477A IPC and Section 13(2) read with Section 13(1)(c) & (d) of the Prevention of Corruption Act, 1988 and also the consequential order dated 27.08.2012 framing a charge under the above provisions of law against the petitioner, herein.
The CBI, SPE, Silchar had on 31.10.1994 registered a case, being RC-12(A)/94-SLC against the petitioner, herein and two others under Section 120-B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
After completion of the investigation, the CBI authorities laid a charge-sheet under Sections 120B/403/409/419/420/465/467/468/471/ 477A IPC and Section 13(2) read with Section (1)(c) & (d) of the Prevention of Corruption Act, 1988 before the Court of learned Special Judge, Assam, Guwahati on 28.11.1997 against the petitioner and two others. The charge having been read over and explained to the petitioner and the other accused, they Page No.# 3/10 having pleaded not guilty, a trial ensued.
On conclusion of the trial, the learned Special Judge, CBI, vide judgment and order dated 27.09.2005 proceeded to discharge the petitioner and the other two accused on the ground of an invalid sanction as obtained from the competent authority to launch prosecution against the petitioner, herein.
During the trial, the petitioner, herein, having demonstrated that the prosecution sanction as obtained in his case by the CBI authorities being not a valid sanction from a competent authority, the learned Trial Court had held that the Court cannot take cognizance of the offence involved against the petitioner as well as the other accused and accordingly, proceeded to dismiss the entire prosecution case and released the accused persons of all offence leveled against them. The CBI authorities, thereafter, obtained a fresh prosecution sanction in respect of the petitioner, herein, from the competent authority on 14.01.2008 and thereafter, submitted a fresh charge-sheet along with the said prosecution sanction order taken in the matter. Thereafter, a hearing was held in the matter, which led to the passing of the impugned order dated 24.08.2012 and the order dated 27.08.2012.
Being aggrieved, the petitioner, herein, has instituted the present proceedings.
3. Mr. S K Ghosh, learned counsel for the petitioner, at the outset has submitted that after the filing of the initial charge-sheet, the learned Trial Court had conducted a full-fledged trial in the matter and after examination of the witnesses so adduced by the prosecution and also upon examining the petitioner and the other accused under Section 313 Cr.P.C. along with the defence witnesses as adduced in the matter, the petitioner having demonstrated that the prosecution sanction as accorded in the matter to prosecute the petitioner was invalid, had proceeded to acquit the petitioner from the offences. He submits that the CBI authorities had not assailed the judgment dated 27.09.2005 before any higher forum including this Court and accordingly, the said decision having attained its finality, the petitioner cannot be subjected to a further trial basing on the same offence. He submits that the provisions of Article 20(2) of the Constitution of India bars prosecution and punishment of a person for the same offence more than once. He further refers to Section 300 of the Code of Criminal Page No.# 4/10 Procedure to contend that a person once convicted or acquitted cannot be tried for the same offence.
Mr. Ghosh, learned counsel for the petitioner submits that the 2 nd charge-sheet as filed in the matter by the CBI authorities is the same as that filed initially which had led to the conduct of the initial trial by the learned Trial Court. Accordingly, he submits that the charges being verbatim same, during the currency of the judgment dated 27.09.2005 passed by the learned Trial Court acquitting the petitioner, herein, no further proceedings on the same offence was permissible to be instituted against him. He submits that the learned Trial Court had miserably failed to appreciate the said aspect of the matter, although, the same was urged before it, while passing the impugned order dated 24.08.2012.
In the above premises, Mr. Ghosh, submits that the 2 nd charge-sheet as filed and the framing of the charge thereon by the learned Trial Court against the petitioner, herein, is not sustainable in law and would require an interference by this Court.
4. Per contra, Ms. M Kumari, learned Retainer counsel, CBI appearing for the respondent submits that the learned Trial Court had released the petitioner initially vide judgment dated 27.09.2005 only on the ground of an invalid prosecution sanction. She submits that after passing of the judgment dated 27.09.2005, no fresh investigation was carried out in the matter and the charge-sheet was filed after obtaining a valid sanction in the mater. She submits that there was no appreciation of evidence as adduced by the parties to the proceeding in the judgment dated 27.09.2005 and the case having been closed only on the ground of an invalid sanction, no valid trial can be held to have been conducted in the matter against the petitioner. She submits that the petitioner was neither convicted nor acquitted by the learned Trial Court.
In the above premises, Ms. M Kumari, learned Retainer counsel, CBI submits that the learned Trial Court had not committed any error in proceeding to frame a charge against the petitioner.
Ms. Kumari, learned Retainer counsel, CBI further submits that neither the provisions of Article 20(2) of the Constitution of India nor Section 300 of the Cr.P.C. bars a conduct of a Page No.# 5/10 trial in the facts and circumstances as existing in the present proceedings. She submits that the Court not having the jurisdiction to entertain the case on account of an invalid sanction, a trial as contemplated under law cannot be held to have been held against the petitioner, herein. She submits that grant of proper sanction by a competent authority being the sine- qua-non for taking cognizance of an offence, the proceedings in the earlier case having reached the trial stage and evidences being adduced by the parties would not lead to a conclusion that a due and proper trial was held against the petitioner, herein. She submits that the learned Special Judge was competent to decide whether he had jurisdiction to entertain the prosecution and for that purpose to determine whether a valid sanction has been given. As the learned Trial Court had decided that no valid sanction has been given, the Court became incompetent to proceed with the matter. Accordingly, she submits that a re-trial of the accused in the facts and circumstances involved is not barred. She submits that even if a conviction or acquittal of the petitioner was recorded, the same would not make any difference for the purpose of application of the provisions of Section 300 of the Cr.P.C., as even then such conviction or acquittal is to be held to have been rendered illegally and without jurisdiction. She submits that it is a settled position of law that under such circumstances on grant of a fresh prosecution sanction, the charge-sheet can be filed and a trial held in the matter.
Ms. Kumari, learned Retainer counsel, CBI further submits that in the facts and circumstances of the present matter, the subsequent submission of charge-sheet and framing of charge cannot be held to amount to a double jeopardy under Article 20(2) of the Constitution of India.
In the above premises, Ms. Kumari, learned Retainer counsel, CBI submits that the orders impugned of the learned Special Judge in the present proceedings would not mandate an interference by this Court.
5. I have heard the learned counsels for the parties and also perused the materials available on record.
6. The facts, as noticed hereinabove, are not in dispute.
Page No.# 6/10
7. The learned Trial Court after the evidences have been adduced by the parties and also upon examination of the accused including the petitioner under Section 313 Cr.P.C. and the defence witnesses adduced in the matter, had vide judgment dated 27.09.2005, on examination of the prosecution sanction order, which was exhibited as Ext.154 proceeded to draw the following conclusions:-
"On a perusal of record, I have found that Ext.58, Ext.79 and Ext. 84 are not FDs but they are RIPs instead. There is also evidence on record to show that there is a gulf of difference between FD and RIP. What is more, PW-13, the sanctioning authority, further admits that he could not say if the handwritings, appearing in Ext.42, are of A-1 or not. This revelations, found emerged from the record, in my considered view, clearly demonstrate that PW-13 granted sanction to launch prosecution against A-1 without applying his mind and he granted sanction quite mechanically. On this count, too, the prosecution case suffers a serious setback. Thus, I am constrained to hold that here-in-this case, prosecution did not obtain a valid sanction from the competent authority to launch prosecution against A-1 and as such, this case is bound to fail.
We have already found that when a case, initiated against a public servant, as per provisions of P.C. Act, fails for want of sanction, the Court cannot take cognizance against other accused persons as well. In this regard, we can profitably peruse the decision of our own Hon'ble Gauhati High Court, rendered in Pulin Bora V/S State of Assam in Criminal Appeal No. 191/196, which have some relevance to our case in hand. In the decision, stated above, it has been held as follows:
"It is pertinent to mention the Special Judge is appointed under the Act only to try the offences punishable under the Act and for the purpose of trial of the public servant for his alleged involvement in any offences under the Act and the contractor not being a public servant as defined under the Act, cannot come under the jurisdiction of the Special Judge. That apart, the learned Sessions Judges acted illegally and without jurisdiction in convicting the appellant under section 420 IPC, once he found the accused not guilty of offence of any criminal conspiracy as well as Page No.# 7/10 under section 13(2) of the Act (emphasis supplied by me).
Thereafter, the learned Trial Court proceeded to release the petitioner, herein, along with the other accused in the following manner:-
"On the application of above decision to our instant case and other decisions referred to hereinbefore, I have found that this Court cannot take cognizance, not only against A-1 but against other accused persons, namely, A-2 and A-3. Thus I have no other alternative but to dismiss the entire prosecution case and released the accused persons of all the offences, leveled against them, Bailors stand discharged."
8. A perusal of the said conclusions drawn by the learned Trial Court would go to reveal that on the prosecution sanction being held to be invalid, the learned Trial Court had noticed that the prosecution sanction being so granted against the petitioner, herein, by the authority issuing the same without applying his mind and mechanically, the prosecution case suffered a serious setback. Accordingly, the case was held to have failed. The learned Trial Court further held that it cannot take cognizance in absence of a valid prosecution sanction against the accused, herein. After the passing of the said judgment, the CBI authorities obtained a fresh prosecution sanction order for prosecuting the petitioner, herein, from the General Manager (Integrated Risk Management), who was the competent authority, on 14.01.2008. Accordingly, the charge-sheet along with the prosecution order came to be placed before the learned Trial Court. The learned Trial Court upon hearing the parties to the proceeding including the petitioner, herein and noticing the earlier litigation history proceeded to draw the following conclusions:-
"On completion of investigation, I.O. submitted charge sheet U/s 120-B, 403, 409, 420, 465, 467, 468, 471 & 477A IPC and section 13(2) r/w 13(1) (c) & (d) of the Prevention of Corruption Act, 1988 against the accused persons, i.e., Shri N.Bhattacharjee, Branch Manager, UBI, Haflong Branch, Shri Ashim Kr. Bhattacharjee, the then Dy. Manager, CPM,HPC, Panchgram and Shri A. K. Barman, the then Forest Ranger (H.Q.), ADC, N.C. Hills, Haflong.
The Ld. Counsel for accused Sri N. Bhattcharjee has submitted that the Page No.# 8/10 accused persons were tried by the Court in connection of the same FIR dtd. 31.10.94 and after full trial, the Ld. Spl. Judge CBI Assam dismissed entire prosecution case and released the accused persons vide judgment and order dtd 27.9.05 for want of prosecution sanction. The Id defense counsel has submitted further that now the accused cannot be tried again on the same FIR which is barred u/s 300 of CrPC. The ld defense counsel cited the decision of (19977) 1 SCC 417. I have perused the said decision of Hon'ble Supreme Court. The ld. Spl PP for CBI raised vehement objection and he has cited the decision of (2005)8 SCC370 (State of Karnataka-vs-C. Nagarajaswamy). I have perused the said judgment and found that regarding initiation of fresh trial after the accused was discharged due to invalid sanction for prosecution, the contention that since accused faced ordeal of trial for a long time, it would not be in the interest of justice to put them on trial once again-- held, not sustainable.
The Ld Spl PP for CBI Mr. David submitted that there is no bar in obtaining fresh sanction from the competent authority. The ld. PP has cited the decision of- 1998 (9) SCC 268, wherein it is held that - where no proper sanction was obtained there is no bar in obtaining fresh sanction from the competent authority. Another decision cited by the Ld. Spl. P.P. for CBI Mr. David is- Crl. Pet. 297/09 (Narendra Mumar Chourasia
-vs- CBI & another, wherein it is observed that whether the sanctioning authority has applied his mind or not are a matters to be elicited at the time of evidence.
Another decision cited by the ld. Spl. PP for CBI is Appeal (Crl.) 215 of 2004 (State of Goa -vs- Babu Thomas), wherein the competent authority was permitted to issue fresh sanction order and to proceed afresh against the respondent from the stage of taking cognizance of the offence and in accordance with law.
The ld. Spl. PP for CBI has submitted that there are also several decisions of the Hon'ble Supreme Court from which it is seen that there is no bar in submitting second charge sheet after obtaining fresh sanction from the competent authority."
9. The learned Trial Court had proceeded to examine the materials brought on record in the charge-sheet and arrived at a conclusion that there was reasonable ground for presuming Page No.# 9/10 the petitioner, herein, of having committed offence punishable under Sections 120B, 403, 420, 468 & 477A IPC and Section 13(2) r/w 13(1) (c) & (d) of the Prevention of Corruption Act, 1988. Accordingly, charges came to be framed against the petitioner and the accused persons. Thereafter, the learned Trial Court vide order dated 27.08.2012 proceeded to formally frame a charge against the petitioner and the accused persons and the same being read over and explained to the accused persons including the petitioner, herein, they having pleaded not guilty, a trial ensued in the matter.
10. The issue arising for consideration of this Court in view of the submissions of the learned counsels for the parties is as to whether the filing of the 2 nd charge-sheet after disposal of the matter by the learned Trial Court vide judgment and order dated 27.09.2005 is hit by the provisions of Article 20(2) of the Constitution of India as well as by the provisions of Section 300 of the Cr.P.C.
11. In the facts and circumstances involved in the present proceedings, the said issue is required to be answered by appreciating the manner in which the earlier trial was so conducted against the petitioner, herein. The trial, being so conducted without there being a valid prosecution sanction in the matter against the petitioner, herein, the trial conducted was non-est in the eyes of law. It is a settled position of law that in absence of a valid prosecution sanction, the earlier trial conducted in the matter against the petitioner by the learned Trial Court was a trial so conducted without the Trial Judge having a jurisdiction to conduct the said trial.
12. In the case in hand, the learned Trial Court had passed the judgment dated 27.09.2005 by holding that the Court had no jurisdiction to proceed with the case. Accordingly, the conduct of a re-trial in the matter against the petitioner cannot be held to have caused double jeopardy to the petitioner, herein.
13. Accordingly, this Court is of the considered view that the subsequent trial ordered against the petitioner is not in violation of the provisions of Article 20(2) of the Constitution of India nor in violation of the provisions of Section 300 of the Cr.P.C.
14. Having drawn the said conclusions, this Court would consider the plea of the Page No.# 10/10 petitioner that in view of the long delay occasioning in the matter since the initial charge- sheet was filed before the learned Trial Court, this Court appreciating the delay occasioning in the matter that interest of Justice would be sub-served while dismissing the present revision petition, without interfering with the order impugned in the present proceeding of the Trial Court, the Trial Court is requested to dispose of the matter expeditiously within a reasonable period of time. The petitioner is also required to render all co-operations in the trial. In the event the trial is not completed within a reasonable period of time, it would be open to the petitioner to approach this Court again.
15. With the above observations and directions, the present criminal revision petition stands disposed of.
JUDGE Pratibha Digitally signed by Pratibha Baruah DN: c=IN, o=Personal, postalCode=781004, l=Kamrup Metro, st=Assam, street=FLAT NO 204 GAUHATI HIGH COURT PRIVATE SECRETARY COMPLEX, Kharguli, Guwahati Assam India 781004, title=3293, 2.5.4.20=71a530be2ea040bbb22c00931aced04f63e681f6cae3635c78d478f Baruah 02266cde4, serialNumber=cb2a7c22627f9ea771f18f3983e02b66130df764108b79dd12f 3a3e40cd1d082, [email protected], cn=Pratibha Baruah Date: 2026.01.27 17:34:06 +05'30' Comparing Assistant