Gauhati High Court
Sarada Prasad (Ips) Retd vs The State Of Assam on 19 September, 2017
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
Criminal Petition No. 636/2013
Sarada Prasad, IPC(Retd.)
Son of Sri R.B.Singh,
R/o A-51 Sector 50 Noida,
201303 Uttar Pradesh,
PO & PS- Sector 49 Gautom Boudh Nagar,
Uttar Pradesh,
......Petitioner
-versus-
State of Assam
.......Respondent
BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the petitioner : Mr. S.Borgohain, Advocate For the respondent : Mr H Sarma, Addl.P.P. Date of hearing : 29.8.2017 Date of judgment : 19.09.2017 JUDGMENT & ORDER (CAV) By this petition challenge is made against the order dated 9.5.2013 passed in special case 5/2009 wherein by invoking the provision under Section 319 of the CrPC cognizance is taken against the petitioner u/s 120(B)/217/218 of the IPC by the learned Special Judge, Assam.
(2) An inquiry was carried out by the Deputy Superintendent of Police(Vigilance and Anticorruption), Assam against one officer Panna Kanti Roy, then Commandant, Homeguard and Civil Defence, Assam vide R.E. no.30(M)/2000. During inquiry it came to light that said Panna Kanti Roy has acquired his disproportionate assets worth more than Rs 50 lakh found during computation of his income and expenditure during 1996-2000 during his service tenure in the said capacity. Pursuant to the said inquiry an FIR was lodged with the ACB PS which is registered ACB PS case 1/2004 u/s 13(1)(e) and 13(2) of the Prevention of Corruption Act.
(3) The investigation of the said case was conducted and sanction for prosecution was also obtained on 29.5.2007. At this stage the petitioner has taken over the charge as Additional DGP of the Vigilance and Anticorruption Wing and noticing certain basic defects in the investigation carried out by the I.O. such as IO has failed to examine the suspected officer to explain the disproportionate income nor has collected any tangible evidence, petitioner noted certain observations and endorsed to another Inspector for further investigation. Accordingly after further investigation finding no substantial evidence against the suspected officer, approval was sought from the government for filing final report and also addressed the government to examine the matter by the Legal Remembrancer and in the meantime he remitted the charge of Additional DGP of the Vigilance and Anticorruption Wing and took the charge of DG, Civil Defence, Home Guard on 10.8.2009. Subsequently chargesheet in the ACB PS case 1/2004 was filed which was tried as special case 5/2009.
(4) During the course of trial of the said case the learned trial court by the impugned order dated 9.5.2013 took cognizance of offence u/s 217/218/120(B) of the IPC by invoking the provisions of Section 319 of the CrPC. The said order is impugned in this petition on the ground that the petitioner dealt the said investigation in exercise of supervisory power and therefore the same cannot be fastened with criminal liability.
(5) I have considered the relevant record and the impugned order dated 9.5.2013. It appears that on the basis of the evidence of PW21, the investigating officer, the court passed the impugned order. For better appreciation relevant portion of the order is reproduced below.
"As directed by this court I submitted the original Additional Final P.R. in connection with ACB PS case No.1/2004 u/s 13(2) PC Act filed by Inspector of Police V&AC Abdul Hamid forwarded by the then Superintendent of Police Sri PC Phukan to Sri D.M. Sarma ACS Jt. Secretary to the Govt of Assam Political & Vigilance Cell, on matter of Govt approval for submission of final report. By this report the I/O prayed permission to file final report in favour of accused Panna Kanti Roy on the ground in his words "under the above facts and circumstances the charges brought against Panna Kanti Roy is found to be mistake of fact considering the documentary evidence collected so far". In this report it is specifically stated that the Govt of Assam vide lettr No. PLA(V)56/2000/Pt/25 dtd. 2.6.07 accorded prosecution sanction against accused Panna Kanti Roy u/s 409/468/120(B) IPC r/w sec. 13(1)(c)(d)/13(2) PC Act. Abdul Hamid in his Additional PR report has stated that the then Additional Director General of Police C&AC after going through the record of the case passed an order for review of the whole case and accordingly Abdul Hamid submitted the report praying permission for submitting Final Report in favour of accused Panna Kanti Roy. As per official documents available in our office on 17.0.6.07 the then Additional Director General of Police, V&AC Sri Sarada Prasad made an order for review of the case after receipt of the prosecution sanction order on the ground that he was not satisfied with the nature of the investigation of the case and nature of the evidence collected so far by the I/Os. After getting the prosecution sanction order from the Govt, Record Inspector of V&AC put up the matter before the Superintendent of Police V&AC for handing over the same to the I/O and the then Superintendent of Police approved the note, but on 17.6.07 the then Additional Director General of Police V & AC Sri Sarada Prasad called for the file and he did not agree for submission of charge sheet immediately at that stage and suggested for further investigation. The then Additional Director General of Police put his signature but it is not known to me because I was not serving at that time and Smti Nandini Deka Dy SP In- Charge of Record who was serving at that time would be able to identify his signature. After receiving the Additional Final Progress Report dtd.15.12.2007 submitted by Inspector of Police V & AC Sri Abdul Hamid forwarded by the then Superintendent of police Sri P.C.Phukan. Sri Subash Ch. Das IAS, Principal Secretary to the Govt. of Assam, Home & Political Deptt wrote a letter to Sri B.B.Misra the then IGP V & AC dtd. 30.05.2008 expressing his dissatisfaction stated that instead of filing charge sheet in the appropriate court the case was reinvestigated by ignoring the earlier investigation report as well the prosecution sanction order issued by the Govt. He also directed the IGP V & AC to look into the matter as to why charge sheet was not filed after prosecution sanction was accorded by the Govt. and under what circumstances the case was entrusted to Inspector level officer inspite of the fact that the original investigation was conducted by the Superintendent of Police as I/O. Section 319 (1) Cr.P.C. says that wherein the course of any inquiry into, or trial of, an offence, it appears from the evidence that an person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
In the statement of CW-1 it is seen that the then Additional Director General of Police, Vigilance & Anti-Corruption, Assam Guwahati Sri Sarada Prasad after receipt of the prosecution sanction order against accused Panna Kanti Roy without getting any report from the I/O suo motto took a decision to review the earlier investigation report submitted by the then Superintend of Police V & AC. After receipt of the prosecution sanction order the investigating officer concerned was legally bound to file the charge-sheet against the accused person. According to the witness Nitul Gogoi when the then Superintendent of Police passed an order for handing over the prosecution sanction order to the I/O for necessary action, the Additional Director General of Police, Vigilance & Anti-Corruption, Assam Guwahati Sri Sarada Prasad abusing his supervisory power had taken the decision to review investigation of the case for the reason best known and ultimately as desired Inspector of Police Sri Abdul Hamid submitted the additional final P.R.with a prayer to submit final report as a mistake of fact....."
(6). Thus it is apparent that the learned trial court has invoked the provisions of Section 319 of the CrPC only on the basis of the said witness who conducted one part of the investigation. Learned counsel for petitioner vehemently urged before this court that such a finding and observation on the part of the court is far below from required evidence to record satisfaction about the guilt of a person to be arrayed as an accused to face trial along with other accused. That apart, cognizance taken by the court is bad in law in absence of sanction u/s 197 of the CrPC. In support of the contention the learned trial court relied on the decision in (2016) 8 SCC 722, Surinderjit Singh Mann and another v. State of Punjab and another, wherein it is held that sanction u/s 197 of the CrPC or under a special statute under Section 19 of the P.C. Act is a mandatory, prerequisite even where cognizance is taken under Section 319 of the CrPC. It is further held that the determination rendered by the court u/s 319 of the CrPC is not subservient to the decision of the competent authority u/s 197 of the CrPC as order granting or declining sanction can be assailed by taking recourse to judicial review.
(7) For better appreciation let us reproduce the relevant observations of the Apex Court in Surinderjit Singh Mand (supra):
" 30. The law declared by this Court emerging from the judgments referred to hereinabove, leaves no room for any doubt, that under Section 197 of the 'Code' and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessary pre-requisite, before a Court of competent jurisdiction, takes cognizance of an offence (whether under the Indian Penal Code, or under the concerned special statutory enactment). The procedure for obtaining sanction would be governed by the provisions of the 'Code' and/or as mandated under the special enactment. The words engaged in Section 197 of the 'Code' are, "...no court shall take cognizance of such offence except with previous sanction...".
Likewise sub-section (1) of Section 19 of the Prevention of Corruption Act provides,-
19. Previous sanction necessary for persecution- (1) "No Court shall take cognizance.. except with the previous sanction..."
The mandate is clear and unambiguous, that a Court "shall not" take cognizance without sanction. The same needs no further elaboration. Therefore, a Court just cannot take cognizance, without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of learned counsel for the respondents, that where cognizance is taken under Section 319 of the 'Code', sanction either under Section 197 of the 'Code' (or under the concerned special enactment) is not a mandatory pre-requisite.
31. According to learned counsel representing respondent no. 2, the position concluded above, would give the impression, that the determination rendered by a Court under Section 319 of the 'Code', is subservient to the decision of the competent authority under Section
197. No, not at all. The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution."
(8). The learned counsel for the State Respondent Mr.H.Sarma, however justified the aforesaid order of taking cognizance U/S 319 CrPC with the contention that performance of official duty under the colour of public authority cannot be camouflaged to commit the crime (reference 1997 (5) SCC 326 Shambunath Mishra-vs- State of UP & another). But above recent legal pronouncement make it abundantly clear that without obtaining sanction U/S 197 CrPC, the cognizance U/S 319 CrPC is not maintainable.
(9). That apart, as has been pointed out the learned trial Court has simply referring to the evidence of one witness has made the observation that the said officer by abusing his superficial power has taken the decision to review the investigation with a view to save the accused from legal punishment. But the said observation appears to be an opinion of the Court rather based on evidence on record.
(10). In Hardeep Singh -vs- State of Punjab and ors 2014 (3) SCC 92 various aspects of the power U/S 319 CrPC has been discussed as to when the Court can invoke such provisions. As regards the degree of satisfaction while invoking such provision by the Court it has been held as below:
" Thus we hold that though only a prima facie case is to be established from evidence led before the Court not necessary tested on the anvil of cross examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applies is one which is more than a prima facie case as exercised at the time of framing charge, but short of satisfaction to an extent that the evidence, if goes unrebutted would lead to conviction. In the absence of such satisfaction the Court should refrain from exercising the power U/S 319 CrPC. Section 319 CrPC the purpose of providing if it appears from the evidence that any person not being the accused has committed any offence, is clear from the words for which such person could be tried together with the accused. The words used are not "for which such person could be convicted". There is, therefore, no scope for the Court acting under Section 319 to form an opinion as to the guilt of the accused."
(11). The degree of satisfaction as discussed above indicates the amount of evidence required to arrive at a decision as about the complicity of an accused but in the given case evidence falls short of the parameter while tested as mentioned above, The learned Court has not discussed all other matters on record to record its satisfaction prior to exercising the provision of Section 319 CrPC. The petitioner herein is a superior officer being empowered to supervise the investigation has issued certain direction to the investigating officer and in terms of the section 36 of the CrPC a police officer superior in rank to the O/C concerned may exercise its supervisory power.
(12). The learned counsel for the petitioner has also referred to the decision of AIR 1947 Cal 29 (S.B. Hussian -vs- Emperor and the decision of Sunil -vs- State of Maharashtra and ors (2006) 6 Mh.L.J. wherein it has been held that an offence U/S 217 IPC can be committed only by a public servant during discharge of his official duty, hence previous sanction U/S 197 CrPC is absolutely necessary. In absence of previous sanction the Court is not empowered to take cognizance of such offence against the public servant. Various other citations on the subject has been discussed while coming to such conclusion by the Hon'ble Court. Reference has been made to the observation made in Shreekantiah Ramaayya Munipalli -vs- State of Bombay AIR 1955 SC 287, wherein the scope of section 197 have been discussed as below:
"if it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official...Whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done, in the one event, it would be done in the discharge of an official duty ad in the other, in the purported discharge of it."
12. Rakesh Kumar Mishra vs State of Bihar, (2006) 1 SCC 557 has been referred to in which it was held that:
" The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned."
13. In order to stress his contention Mr.Gupta further relied on K K Patel and another vs. State of Gujarat and another, 2000 All MR (Cri)1232 (SC) whereinit is held that:
" the indispensable ingredient of the said offence is that the offender should have done the act " being a public servant". The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under section 167 and 219 of Indian Penal Code the pivotal ingredient is the same as for the offence under section 166 of Indian Penal Code.
(13). In view of the above observations and discussions the present petition stands allowed.
The impugned order dated 9.5.2013 passed in Special Case No.5/2009 is hereby quashed and set aside.
Return the LCR.
JUDGE Nandi