Gauhati High Court
Dr. Abhijit Rabha vs The State Of Assam And 7 Ors on 28 February, 2020
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/5
GAHC010049682020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 195/2020
1:DR. ABHIJIT RABHA
S/O LATE DHARINI KANTA RABHA, PRESENTLY RESIDING AT DIPHU,
KARBI ANGLONG-782460, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 7 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, HOME AND POLITICAL DEPARTMENT, DISPUR-781006, ASSAM
2:THE DIRECTOR GENERAL OF POLICE
ASSAM ULUBARI
GUWAHATI-781005
3:THE DIRECTORATE OF VIGILANCE AND ANTI CORRUPTION
SRIMANTAPUR
GUWAHATI-781032
4:THE SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI CORRUPTION
SRIMANTAPUR GUWAHATI-781032
5:THE INSPECTOR OF POLICE
DIRECTORATE OF VIGILANCE AND ANTI CORRUPTION
SRIMANTAPUR
GUWAHATI-781032
6:CENTRAL VIGILANCE COMMISSION
REPRESENTED BY ITS SECRETARY
SATARKATA BHAVAN
A-BLOCK
GPPO COMPLEX
INA NEW DELHI-110023
7:THE UNION OF INDIA
Page No.# 2/5
MINISTRY OF ENVIRONMENT
FOREST AND CLIMATE CHANGE REPRESENTED BY ITS SECRETARY
INDIRA PARYAVARAN BHAVAN
JORBAGH ROAD
ALIGANJ
NEW DELHI-110003
8:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR ASSA
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
Date : 28-02-2020 Heard Mr. K. N. Choudhury, learned senior counsel, assisted by Mr. P. N. Goswami, learned counsel for the petitioner and Mr. S. S. Roy, learned Government Advocate, Assam for the respondent Nos. 1 & 2. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam for the respondent Nos. 4 & 5 and Mr. S. C. Keyal, learned Assistant SGI for the respondent Nos. 6 & 7.
The petitioner is an Indian Forest Service Officer of Assam-Meghalaya Cadre and presently serving as Principal Chief Conservator of Forest, Assam. Regarding disproportionate assets and huge suspicious financial cash deposits for the period from 2011-2016 in the bank account of the petitioner, on an anonymous complaint dated 21.11.2016 the Central Vigilance Commission communicated the same to the Government of Assam on 16.11.2016 and on turn the Government of Assam on 19.12.2016 wrote to the Directorate of Vigilance and Anti Corruption, Assam to initiate a regular enquiry in to the matter. Accordingly, a regular enquiry being Regular Enquiry No. 2(1)2017 was initiated against the petitioner. By communication dated 31.01.2016 the Directorate of Vigilance and Anti Corruption, Assam, Guwahati directed the petitioner to appear before the said authority on 07.02.2017 at a stipulated time for his examination and recording of his statement in connection with said regular enquiry. In the said enquiry, the petitioner on 28.02.2017 submitted his declaration regarding his assets and liabilities.
It is stated that relying on the basis of said anonymous complaint and the letter of the Central Vigilance Commission dated 16.11.2016 and with regard to his disproportionate assets, the State Government in the Environment & Forests Department vide No. FRE.201/2016/21 dated 17.05.2017 initiated a departmental proceeding against the petitioner under the provisions of the All India Services Page No.# 3/5 (Discipline & Appeal) Rules, 1969, serving him the Memorandum with the Articles of Charges, Statement of imputation of the charges, list of documents and witnesses as required, to which the petitioner on 20.10.2017 submitted his reply. Though the petitioner challenged the said proceeding and non-consideration of his promotion before the Central Administrative Tribunal, Guwahati but the planet Tribunal by order dated 09.10.2018 passed in O.A. No. 348/2018 that was preferred by the petitioner, directed the respondents to conclude the said Department Proceeding within four months, which is not challenged by the petitioner. On 12.10.2018, the Enquiry Officer submitted the Enquiry Report and the petitioner submitted that out of 15 charges, 3 charges pertain to Income Tax Return and the remaining 12 charges were not approved.
On receipt of the opinion of the Legal Remembrancer, Assam dated 25.01.2019 that the petitioner being an IFS Officer, the State of Assam lacks the authority and competence to institute a disciplinary proceeding against him and it is the Central Government alone who can initiate such proceeding against the petitioner and that the Central Government may be requested to proceed with the enquiry against the petitioner. The State Government by communication dated 01.03.2019 sought for clarification regarding the departmental proceeding pending against the petitioner from the Government of India in the Ministry of Environment, Forest & Climate Change. On 18.04.2019 the Ministry of Environment, Forest & Climate Change, Vigilance Division informed the State Government that the said Ministry will function as Disciplinary Authority with the case of the petitioner and requested the State Government to withdraw the charge-sheet and forward the draft charges along with the supporting documents to process further against him. Accordingly, the State Government on 03.05.2019 withdrawn the charges framed against the petitioner informing that the said matter will be dealt by the Ministry of Environment, Forest & Climate Change, Government of India.
On 22.05.2019 the Ministry of Environment, Forest & Climate Change, Vigilance Division, Government of India issued Show Cause notice to the petitioner asking him to submit his explanation within 15 days as to why disciplinary proceeding should not be instituted against him, to which the petitioner submitted his reply on 21.06.2019.
On completion of his enquiry in said Regular Enquiry No.2(1)2017, noted above, the Inspector of Police, Directorate of Vigilance and Anti Corruption, Assam on 06.02.2020 submitted an FIR before the Officer-in-Charge of Anti Corruption Bureau Police Station, Directorate of Vigilance and Anti Corruption, Assam, Guwahati to register a case against the petitioner under Sections 13(1)(b)/13(2) of the Prevention of Corruption Act, 1988 as amended, which was accordingly entered as ACB Police Station GD Entry No. 71 dated 06.02.2020 and registered as ACB Police Station Case No. 01/2020 Page No.# 4/5 under Sections 13(1)(b)/13(2) of the PC Act, 1988 as amended.
On 06.02.2020 learned Special Judge, Assam, Guwahati under Section 83 CrPC granted permission to the authority in the Vigilance and Anti Corruption, Assam, Guwahati with warrant to search the suspected place of deposit of the petitioner in said ACB PS Case No. 01/2020 and accordingly, search and seizure was made on 07.02.2020 with regard to various assets of the petitioner. On 07.02.2020 the authorities in the Vigilance and Anti-Corruption, Assam issued Notice under Section 41(A) CrPC to the petitioner.
Being aggrieved with institution of said ACB P.S. Case No. 01/2020 under Section 13(1)
(b)/13(2) of the PC Act, 1988 as amended, the petitioner has preferred this criminal petition, stating that earlier, for the same offence, inquiry was conducted by the authorities in the State, wherein Departmental Proceeding being FRE No. 201/2016/21 was initiated on 17.05.2017 and that the concerned Enquiry Officer, after making the inquiry, has already submitted the Enquiry Report on 12.10.2018 and now with regard to the charge of said proceeding, the matter is pending before the Ministry of Environment, Forest & Climate Change, Vigilance Division, Government of India. It is submitted that the petitioner being a personnel of the Indian Forest Service, the second proceeding, i.e., the ACB P.S. Case No. 01/2020, instituted by the Directorate of Vigilance and Anti Corruption, Assam for the same set of offences is not permissible under the law. Mr. Choudhury submitted that the case against the petitioner is a glare case of malicious prosecution so as to debar him from the promotion to the highest post in the Forest Department of the State.
Relying on the judgments of the Hon'ble Apex Court in the cases of Radheshyam Kejriwal Vs. State of W.B., reported in (2011) 3 that was decided by a Bench of three Hon'ble Judges as well as the in the case of State of Haryana Vs. Bhajan Lal, 1992 reported 1992 Supp (1) SCC 335, Mr. Choudhury, learned Senior counsel, submitted interference of Court in the said proceeding in exercise of Section 482 of the CrPC, for stay of the proceeding of said ACB P.S. Case No. 01/2020 against the petitioner and also prayed for an interim protection to the respondents not to take any coercive action against the petitioner in said ACB P.S. Case No. 01/2020 stating that petitioner is indisposed, admitted in hospital, suffering from medical ailment of renal failure.
Mr. D. Das, learned Additional Public Prosecutor, Assam, relying on the Enquiry Report dated 12.10.2018, of the concerned Enquiry Officer, pertaining to the Disciplinary Proceeding initiated against the petitioner, submitted that the charges in the said proceeding are not conclusive as out of 15 charges, 12 charges reflect that in absence of sufficient material on record those could not be proved beyond doubt and therefore, a criminal proceeding has been rightly instituted against the petitioner.
Page No.# 5/5 Mr. Das, learned Additional Public Prosecutor, Assam, objecting to any such interim order, submitted that the petitioner may approach the appropriate Court for his pre arrest bail in said ACB P.S. Case No. 01/2020 if he wants and therefore, interim order may not be passed at this stage.
Issue notice, returnable by 16.03.2020.
The respondents shall file their affidavits in the matter, if any, on or before 07.03.2020.
As Mr. S. S. Roy, learned Government Advocate, Assam, Mr. D. Das, learned Additional Public Prosecutor, Assam and Mr. S. C. Keyal, learned Assistant SGI, have accepted notice on behalf of the respondent Nos. 1 & 2, 4 & 5 and 6 & 7 respectively, no formal notices need be issued to those respondents. However, the petitioner shall serve requisite extra copies of this petition including the Annexures appended thereto to Mr. Roy, Mr. Das and Mr. Keyal within two days from today.
Registry shall reflect the names of Mr. S. S. Roy, learned Government Advocate, Assam, Mr. D. Das, learned Additional Public Prosecutor, Assam and Mr. S. C. Keyal, learned Assistant SGI for the respondents in the Cause List.
Till the returnable date, i.e., 16.03.2020, the respondents shall not take coercive action against the petitioner. However, it is made clear that the petitioner shall appear before the authorities in the Vigilance and Anti Corruption, Assam, Guwahati in said ACB P.S. Case No. 01/2020 forthwith and also in terms of the Notice under Section 41(A) CrPC dated 07.02.2020 noted, he shall fully co-operate with the investigation of said case and shall not leave the station, i.e., Guwahati City without obtaining prior written permission from the concerned Investigating Officer of said ACB P.S. Case No. 01/2020.
List accordingly.
JUDGE Comparing Assistant