Gauhati High Court
Director, Central Bureau Of ... vs Tarun Chandra Goswami (A-1) & Anr on 22 July, 2016
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
Criminal Revision Petition No.186 of 2015
Director ,
Central Bureau of Investigation
through head of Branch,
Anti Corruption Branch,
Bora Commercial Complex, Narengi Tiniali,
Guwahati-781 026 (Assam)
......... Petitioner
Advocate for the petitioner : Mr. P.N. Choudhury, S.C.CBI
In Crl. Revn. Petition No.186/15
-Versus-
1. Tarun Chandra Goswami (A-1)
Son of late Bipin Chandra Goswami,
(Employee Donyi Polo Mission, Itanagar at
the relevant time, presently retired)
R/o Vill- Khelmati, North Lakhimpur, Assam,
2. Jayanta Debroy (A-3)
S/o late Jyotish Ranjan Debroy
(Employee Donyi Polo Mission, Itanagar at
the relevant time, presently retired)
permanent Add: R/o North A/P, KNC Complex,
Opp. Bora Service, Ulubari, Guwahati,
Dist- Kamrup (M), Assam- 781 007.
......Respondents
Advocate for the opposite : Mr. M.Choudhury, Advocate Parties in Crl.Revn.No.186/15 Ms. M. Kumari, Advocate Criminal Petition No. 446 of 2015
1.Tshering Narbu Bhutia, Son of late Uchen Tshering Bhutia, Resident of Methibari (Sarbari) 2 PO-Sukna, Pin-734009 PS-Pradhan Nagar, Siliguri,Dist-Darjeeling, (Pachim Banga),the then Assistant Provident Fund Commissioner (oic), Employees Provident Fund Organisation, Sub-Regional Office, Tinsukia.
2.Nava Kumar Hazarikia, Son of late Umesh Chandra Hazarika, Resident of Namak Godwon, Sripuria, PO & PS- Tinsukia, Assam, the then Assistant Accounts Officer, Employees Provident Organisation, Sub-Regional Office, Tinsukia (presently Accounts Officer in the said office)
3.Sri Subodh Chandra Rava Son of late Gouri Kanta Rabha, Resident of Fatasil Datal Para (Natun Basti) PO-Dhiren Para, P.S. Fatasil Ambari, Guwahati-
781025, District- Kamrup, Assam, the then Section Supervisor, Employees Provident Fund Organisation, Sub-Regional Office, Tinsukia (presently Section Supervisor, Employees Provident Fund Organisation, Regional Office, Guwahati)
4. Muhiram Sonwal,S/o Late Moheswar Sonwal, Resident of Tinsukia village, PO-Lalmati(via Borborua), PS-Barbora, District-Dibrugarh, Assam, the then dealing Assistant, Employees Provident Organisation, Sub-Regional Office, Tinsukia, (presently senior social security assistant (UDC) Employees Provident Fund Organisation, Sub-Regional Office, Tinsukia).
...Petitioners Advocate for the petitioners : Mr. B.M. Choudhury, Advocate In Crl.Petition No.446/15 Mr. U. Choudhury, Advocate
-vs-
1.Tarun Chandra Goswami Son of Bipin Chandra Goswami, Resident of village-Khelmati, 3 District- North Lakhimpur, Assam (alternatively Of Town Bantow, District-Lakhimpur, Assam.
2. Jayanta Debroy (A-3) S/o Jyotish Ranjan Deb Roy Presently residing at North A/P, KNC Complex, Opp. Bora Service, Ulubari, Guwahati, (permanent resident of vill-Padmapur, Dharmanagar, Tripura)
3.Central Bureau of Investigation, Represented by its Head of Branch, CBI, ACB, Guwahati.
...Respondents Advocate for the opposite : Mr. M.Choudhury, Advocate Parties in Crl.PetitionNo.186/15 Ms. M. Kumari, Advocate Mr. P. N. Choudhury, S.C.CBI.
-versus-
Criminal Petition No. 526 of 2015
1.Shri Pramod Chandra Kaltia S/o Kamakhya Ram Kalita, resident of Tarun Nagar, ABS, GS Road, PS-Dispur, Guwahati-5, Kamrup (M),Assam.
...Petitioner Advocate for the petitioner : Mr. S.K.Talukdar, Advocate In Crl.Petition No.526/15
-vs-
1.The State, represented by the CBI.
2. Jayanta Debroy (A-3) S/o Jyotish Ranjan Debroy Presently residing at North A/P, KNC Complex, Opp. Bora Service, Ulubari, Guwahati, (permanent resident of Padmapur,Dharmanagar Tripura), 4 .....Respondents.
Advocate for the opposite : Mr. M.Choudhury, Advocate Parties in Crl.Petition No.526/15 Ms. M. Kumari, Advocate Mr. P. N. Choudhury, S.C.CBI.
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing : 15.6.2016
Date of Judgment : 22.07.2016
JUDGMENT & ORDER (CAV)
All above petitions have been preferred against the impugned order dated 2.2.2015 passed by the learned Special Judge, CBI in Special Case No. 34 of 2006 wherein by invoking the provision of Section 319 Cr.P.C., the learned Court has newly added six accused persons in the said case namely, 1) Tshering Narbhog Bhutia, 2) Nava Kumar Hazarikia, 3) Subhod Chandra Rabha, 4) Muhiram Sonowal,
5) Promod Chandra Kalita and 6) Manabendra Chaudhury, holding that the aforesaid six persons shall also be tried together with the other accused already facing trial for the offences under Sections 120(b) /406/408/34 IPC and summoning them to face the trial in the aforesaid case.
2. Being aggrieved with the aforesaid order, the four newly impleaded accused persons namely, 1) Tshering Narbhog Bhutia, 2) Nava Kumar Hazarika, 3) Subhod Chandra Rabha, 4) Muhiram Sonowal have preferred the Criminal Petition No. 446/2015 .
One another newly impleaded accused Promod Chandra Kalita has preferred the Criminal Petition No. 526/2015.
The prosecution agency i.e. the Central Bureau of Investigation also challenged the impugned order by way of Criminal Revision Petition No. 186/2015.
5As all the petitions have been challenged the same order, passed by the learned Special Judge, and the facts related to the same story, so all the petitions are taken together for disposal by this common judgment and order.
3. A written complaint was lodged on 25.9.2003 by Shri P. C. Patir, the then Deputy Director (Vigilance) Employees Provident Fund Organisation (in short EPFO), on the allegation that during the year 2000-2001 nine fraudulent/fictitious Provident Fund settlements in respect of members of M/s Donyi Polo Mission, Itanagar claims were filed in EPFO Sub-Regional Office, Tinsukia each about two lakhs in respect of persons who, were not employees. The claims were settled and payment was made in respect of such fraudulent claims thereby cheating the EPFO. On investigation made by zonal Vigilance Directorate it was revealed that there was nexus between the EPFO and the establishment of M/s Donyi Polo Mission, Itagagar, UCO Bank Itanagar, State Bank of India, Angarkhowa Branch. As per the aforesaid complaint while settling those nine claims, Sub-Regional Office, EPFO, Tinsukia did not check the receipts of the contribution of those nine claims. Though as per the standing instruction issued by the Corporate Headquarter, Assistant Accounts Officer (AAO) were authorised to pass claims upto 50 thousand only but in the said claims the concerned AAO Sri N. K. Hazarika passed the claim beyond Rs.50,000/- as per verbal as well as written order passed by the then Assistant Provident Fund Commissioner, Sri T. N.Bhutia, whereas it was not within his power. It was also alleged that Sri Manabendra Choudhury, AAO issued cheques beyond Rs.50,000/- in respect of final settlement even though he was not entitled to the same. In the process of such settlement of nine fictitious claims a sum of Rs.19,39,848/- was siphoned on the basis of forged and fictitious papers, whereas there was no money in the aforesaid fraudulent PF A/C.
4. The aforesaid complaint was lodged against T.N.Bhutia, the then Assistant Provident Fund Commissioner, SRO Tinsukia, Sri Lokeshwar Barua, the then Assistant Provident Fund Commissioner, SRO Tinsukia, Sri Manabendra Choudhury, AAO, EPFO, Tinsukia, unknown officials of UCO Bank & Vijaya Bank, Itanagar, unknown officials of SBI, Angarkhowa Branch, Sri T.C. Gowami, private person and M/s Donyi Polo Mission, Itanagar as accused in his complaint. The complainant requested the Superintendent of Police, Central Bureau of Investigation, office of 6 Superintendent of Police, Anti Corruption Branch, Guwahati to cause an investigation into the matter.
(ii) Upon receipt of the said complaint, a regular case was registered by the C.B.I. under Section 120 B/420/467/468/471 IPC read with Section 13 (1) (d) of Prevention of Corruption Act, 1988.
(iii) After completion of investigation of the case, Charge-Sheet of the case was submitted bythe investigating officer of the case on 27.06.2006 against Sri T.C. Goswami (Ex-employee of Donyi Polo Mission, Itanagar), Sri Chakradhar Nath (ex- employee of UCOI Bank, Itanagar ) and Sri Jayanta Debroy (Ex-employee of Donyi Polo Mission, Itanagar) under Sections 120 B/419/420/465/468 and 471 IPC read with Section 13(2) and 13(1)(d0 of the Prevention of Corruption Act, 1988. The other named-accused in the complaint, particularly, T.N. Bhutia, Sri Lokeswar Baruah and Sri Manabendra Choudhury all are officials from the EPFO, Tinsukia were not sent up for trial.
(iv) A corresponding Special Case being Special Case No.34/2006 was registered and summons were issued by the learned Special Judge, CBI, Assam to those accused persons sent up for trial. On appearance charges were framed under Sections 419/468/465/471/120B of the Indian Penal Code against Tarun Ch. Goswami, charges were framed under Section 420/468/465/471/120B of the IPC and under Section 13(1) (d) read with Section 13(2) of P.C.Act against Jayanta Deb Roy and Chakra Dhar Nath. The learned trial Court, after framing the charges, read over and explained the charges to all above accused persons to which they pleaded not guilty and claimed to be tried.
(v) At the initiation of the trial of Special Case No.34/2006, a Petition No.3154/2006 dated 4.11.2006 was filed for and on behalf of the accused Sri Jayanta Debroy stating inter alia that on examination of investigating agency's paper and documents it reveals that the real offenders have not been charge-sheeted and the learned trial Court after taking cognizance of the offences issues process against the only three persons and hence it was prayed that the learned trial Court may be pleased to fix a date for hearing to issue process under Section 204 Cr.P.C. against the real offenders who are specifically implicated on the case. The said petition was not disposed of as it was filed before the trial commenced.
75. During the course of the trial prosecution examined 28 witnesses and on the basis of evidence brought on record, one another accused Tarun Goswami filed an application before the trial Court being Petition No. 931/2014 dated 3.6.2014 with a prayer to implead the accused persons namely, T.N.Bhutia, Sri N. K. Hazarika, Sri Manabendra Choudhury, Sri Muhiram Sonowal and Sri Subhod Rabha, employees of EPFO Office, Tinsukia, by invoking the power under Section 319 Cr.P.C.
6. That CBI filed a reply to the Petition filed by aforesaid accused Jayanta Deb Roy dated 4.11.2006 submitting inter alia that the officials of EPFO Tinsukia ought to have diligently check and verify the authenticity of document but they have failed to carry out their official duty diligently, for which CBI has recommended disciplinary proceeding against those officials of EPFO Tinsukia, viz. namely Sri T.N.Bhutia, Sri N. K. Hazarika, Sri Muhiiram Sonowal and Sri Subhod Rabha to impose major penalty. No action was recommended against other two officials namely Sri L. Baruah and Sri Manabendra Choudhury, who have already retired.
7. In reply to the petition so filed by another accused Sri Tarun Goswami, the CBI in its reply dated 14.7.2014 submitted inter alia that there is nothing in the petition filed by the accused Sri Tarun Goswami showing any evidence brought in examination in chief implicating any person who has not been made accused in that case nor any incriminating evidence against any person who has not been made an accused in the charge-sheet. Further CBI contends that processing of claims by PF officials on receipt of necessary papers as regards claims in their office does not indicate any criminality in discharging their duties. Accordingly, it has been submitted that the prayer of the accused Mr. T Goswami to proceed against the PF officials is not based on any cogent evidence and liable to be dismissed.
8. After hearing both sides, the above two petitions were disposed of by the learned trial Court by its impugned order dated 2.2.2015, the concluding/operative part of the order is reproduced below:
" ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .In the instant case in hand, the material allegation, as it is reflected in the complaint lodge dby P.C. Patir, Deputy Director (Vigilance), EPFO, Kolkata is that T.N. Bhutia, L. Baruah-both the then Assistant Provident Fund Commissioners, Tinsukia; Manabendra Choudhury, Assistant Accounts 8 Officer of the EPFC, Sub Regional Office, Tinsukia, Assam; T.C.Goswami and others have defrauded the EPFO, to the extent of Rs.19,39,848/- by fraudulently and dishonestly settling the PF claims of the nine employees of M/s Donyi pollo Mission of Itanagar, during the period of 2000-02. It is pertinent to record here, that in this case, charges are already framed against the accused Tarun Chandra Goswami, Chandradhar Nath and Jayanta Deb Roy for offences u/secs 120 B, 420.468,419 IPC an sec 13(2) read with section 13(1)(d)of the P.C.Act, 1988.
I have perused the materials on record very carefully and cautiously. The basic contention of the accused-petitioners is that the PF officials of the EPFO, Tinsukia, fraudulently and dishonestly did not verify the records in a proper manner, with due care, diligence and attention and consequently in the nine instances, irregular settlements were made, thereby siphoning off a large amount of public money.
After going through the materials on record, what I find is that besides the present accused, more particularly, against whom the charges are already framed in connection with this case; there are other following accused namely, 1) T.N.Bhutia, the then Assistant Provident Fund Commissioner, Tinsukia, 2) Manabendra Choudhury, the then Assistant Account Officer, Tinsukia 3) N. K. Hazarika, the then Assistant Account Officer, Tinssukia, 4) S.C.Rabha, the then Section Supervisor, Tinsukia,5) P.C.Kalita, the then Section Supervisor, Tinsukia and 6) M. Sonowal, the then Dealing Assistant, in the office of the EPFO Tinsukia were responsible for irregular settlement of the claims in connection with this case. They were evidently left out and that they are not arrayed , as accused in connection with this case. Their involvement in the matter of irregular settlement of PF claims,in those nine cases, in my considered view, cannot be reasonably denied, as the materials on record disclosed.9
That being the position, invoking the power conferred u/s 319 Cr.P.C., I am of the considered view that the above referred 6 (six) officials of the EPFO, Tinsukia may also be tried together with the present accused, for offences u/s 120B/406/408/34 IPC.
Accordingly, they may be summoned for their trial together along with the present accused, fixing 03.03.2015 for their appearances."
9. The aforesaid order has been challenged in these three petitions as aforesaid. It may be noted here that one of the newly impleaded accused Sri Manabendra Choudhury has not challenged the aforesaid order and the newly impleaded accused Sri T.C. Kalita was a witness in the aforesaid case and he has already given his evidence as PW 7 in course of trial.
10. In the Criminal Petition 446/2015, basic grievance raised by the four petitioners is that the trial Court has exercised the power under Section 319 Cr.P.C., there being no any evidence against the accused petitioner regarding the commission of offence as alleged. The mere fact that there was some irregularity towards such payment of PF amounts does not necessarily make the petitioners liable for criminal offence. The finding of the trial Court is bad in law as it bears no discussion as to the materials on the basis of which the learned Court arrived at such findings. Such a finding is violative of guideline laid down by the Hon'ble Supreme Court in Hardeep Singh -vs- State of Punjab, reported in (2014) 3 SCC 92. Another contention of the accused petitioners is that impleadment of the accused petitioners and summoning them is also bad in law as the petitioners being the public servant, sanction for prosecution is sine qua non for taking cognizance of offence against public servant discharging official duties.
11. In the criminal revision petition No. 186/2015 the CBI has taken almost the similar grounds as in criminal petition no. 446/15. The CBI has taken grounds that the accused persons already facing trials cannot make any prayer before the trial Court to invoke the provisions of Section 319 Cr.P.C., to summon others as accused to face a trial. It has been contended that a trial Court fail to appreciate that the power under Section 319 can be exercised at the stage of completion of examination-in-chief and the Court does need to wait till the said evidence vested in 10 cross-examination. It contends that, the instant case, there was nothing in the examination-in-chief to implicate those persons for invoking the power under Section 319 Cr.P.C. Thus the degree of satisfaction laid down in the Hardeep Singh Case (Supra) has not been followed by the learned trial Court. Further contention is that the learned trial Court failed to appreciate that FIR is not a substantive piece of evidence and CBI after completion of investigation has submitted Charge-sheet only against three accused persons and the other accused (presently impleaded) were not Charge-sheeted as no mens rea was made out against them and the learned trial Court has most inadvertently aided the accused persons in derailing the trial. Accordingly, prayer has been made to quash the impugned order and direct for proceeding of trial based on the case to be made out by the prosecution.
12. The criminal petition no. 526/2015 has been preferred by newly impleaded accused Sri Promod Chandra Kalita (who already appeared as PW 7 in the said case). The challenge made by the petitioner against the impugned order on the grounds that the said impugned order is perverse and based on no evidence against him. It has been assailed that though the petitioner was Section Supervisor of the office of Sub-Regional Office, there was no allegation against him neither in the FIR, Charge-sheet nor any other material including the evidence before the learned trial Court suggesting his complicity with the offence. The learned Court below while invoking the power U/S 319 has relied upon the prosecution witness PW 7 (the petitioner himself) PW 5 (Mr. P. Patir/ complainant), PW 9 (Moheswar Boro), PW 16 (Pijush Roy), PW 22 (Bipin Saikia) all of them have categorically stated in the cross- examination that one Subudh Chandra Rabha processed the alleged fictitious nine claims / forms as a Section Supervisor, facilitate the release of payment thereof. The learned Court merely on assumption that since the petitioner was also a section Supervisor, he might have also had been involved in the commission of the alleged offence has impleaded him, without there being any evidence, hence such order is unsustainable. The Hon'ble Apex Court in Hardeep Singh Case (surpa) has categorically held that prior to invoking power under Section 319 Cr.P.C., evidence more than prima facie case (for framing charge) is required. The learned trial Court committed serious error in impleading the petitioner as an accused by the impugned order, since there was no material/evidence or record to implicate his guilt, even prima facie. Thus it has been submitted that the impugned order suffers 11 from non application of mind rendering the same as perverse and illegal and should be set aside.
ARGUMENT IN THE CASE OF CRIMINAL PETITION NO.446/2015
13. Mr. B. M. Choudhury, learned counsel appearing for the petitioner in Criminal Petition No. 446/2015 has strenuously argued on the subject by referring to the grounds mentioned above and has submitted that the learned trial Court has failed to apply its judicial mind while arriving at the decision on the prayer of accused persons that allowing such a prayer at the belated stage where the prosecution has almost completed its evidence will further prolong the delay where is the occurrence of 2003. It has also been highlighted that the learned trial Court recorded no reason so as to reach the conclusion as to the complicity of the accused petitioners with the alleged offence as indicated in para 106 of the judgment of Hardeep Singh (supra). As per the mandate of said judgment the learned trial Court has to record its satisfaction about more than a prima facie case, prior to invoking the provisions of Section 319 Cr.P.C. It is further contended that invoking extra ordinary power U/S 319 Cr.P.C. on the prayer of accused facing trial despite having no evidence, attributing any criminality or mens rea on the part of the impleaded accused persons has damaged the prosecution case and causing prejudice to the prosecution, at the fag end of the trial, which get some escape route to the respondent nos. 1 and 2. Another contention raised by the learned counsel for the petitioner that the petition no. 931/2014 was filed by another accused on the basis of cross-examination of PW 2, PW 3, PW 5, PW 7, PW 9, PW 20, PW 22 and PW 23 and the same are rebuttal of the examination of the chief. Even prosecution filed its reply objecting against the petition and submitted that there was only negligence or lack of diligence amounting to official irregularity but not mens rea and disciplinary action was recommended against EPF officials. The learned counsel Mr. Choudhury referred the decision of Rakesh -vs- State of Haryana, reported in AIR 2001 SC 2521, wherein it has been held that, "what should be considered for invoking powers U/S 319 Cr.P.C. is the material available during examination-in-chief because the cross examination is rebuttal of deposition".
14. The decision rendered in Hardeep Singh (supra) also relied by the learned counsel for the petitioner and has submitted that the learned trial Court has failed to 12 appreciate the direction so given in the aforesaid case that power U/S 319 must be exercised sparingly, that Court cannot formed an opinion. Strong and cogent evidence is required against the persons sought to arrayed as accused, the power should not be exercised in a casual and cavalier manner and reasons to be recorded while invoking such power. According to the learned counsel, the learned Court formed the opinion despite having no strong and cogent evidence, without recording any reason and exercise the extra ordinary power in casual and cavalier manner. In this context decision of Apex Court in the case of Markio Tado -vs- Takam Sorang, reported in 2013 (7) SCC 524 has been referred wherein Hon'ble Apex Court has strongly viewed the attitude of the Subordinate Courts for ignoring the settled positions of law.
15. Another decision of Saradjit Singh -vs- State of Punjab, reported in 2009 (16) SCC 46 has been referred by the learned counsel for the petitioner wherein it has been held that merely first informant or another witness uttered name of other person, power U/S 319 Cr.P.C. cannot be invoked. Further limb of argument rest upon the fact that the present petitioner cannot be tried together with the private respondents, being the petitioner is public servant and offence U/S 406/408 are not applicable to them. In case of public servant sanction of prosecution U/S 19 of the P. C. Act is sine qua non prior to taking cognizance of offence against such public servant.
ARGUMENT IN THE CASE OF CRIMINAL PETITION NO.186/2015
16. Mr. P. N. Choudury, learned senior retainer counsel for CBI appearing for the petitioner in this case (as well as respondent in Criminal Petition No.526/2015)has also based his argument relying upon the Hardeep Singh case (supra) and has submitted that learned Court has not recorded the satisfaction in terms of the aforesaid judgment of the Apex Court prior to invoking the provisions U/S 319 Cr.P.C. which is bad in law. Further the learned trial Court failed to appreciate that during investigation no cogent evidence was collected by the investigating officer to robe the present impleaded accused petitioner with the criminal liability for which they were not forwarded for facing criminal trial, rather they have recommended for departmental proceeding for their irregularity towards the payment of P F claims. Assailing the impugned order of the learned trial Court it has been submitted that 13 such an order without any cogent reason, that too without any cogent evidence and after long delay (after examination of 27 witnesses), passed on the prayer of the accused facing trial is bad in law and liable to be set aside. That apart, such order will seriously caused prejudice to the case of prosecution and destructive of prosecution story.
ARGUMENT IN THE CASE OF CRIMINAL PETITION NO.526/2015
17. For and on behalf of the accused petitioner Sri P. C. Kalita, the learned counsel Mr. S. K. Talukdar has vehemently argued that the impugned order is bereft of reasons for impleading the accused petitioner, whereas he has already appeared as a witness (PW 7). The evidence so far recorded is totally silent about complicity of the present petitioner with the offence alleged. The petitioner was a Section Supervisor at the relevant time but the evidence of PW 16, PW 22 apart from his own evidence as PW 7 clearly indicates that he never dealt with the above nine fictitious claims and it was another Section Supervisor Subudh Rabha has dealt, processed the above nine fictitious claims and as such he cannot be roped with any such criminal liability simply because he was an employee in the said EPF Office at the relevant time. The learned trial Court has failed to appreciate the aforesaid aspects for which the impugned order as regards him liable to be set aside.
ARGUMENT ON BEHALF OF RESPONDENTS T. C. GOSWAMI AND JAYANTA DEB ROY
18. Heard the learned counsel Mr. M. Choudhury for and on behalf of Mr. T.C.Goswami and Ms. Manuruma Kumari for and on behalf of Mr. Jayanta Deb Roy at length. In the elaborate argument the learned counsel for the respondent T. C. Goswami has focused various facets of the case including factual aspects of the matter and the relevant provisions of law, countering all the limbs of arguments advanced by the learned counsel for the petitioner in the aforesaid three cases. It has been contended that the officials of EPFO was involved in settling the aforesaid nine claims by passing orders without jurisdiction and more particularly where there was no money deposited against those P F Accounts. The P. F. officials did not verify the records of P F Office and in collusion with the bank officials and officials from M/s Donyi Polo Mission, Itanagar fraudulently misappropriated a sum of Rs. 19, 38, 848.00 for EPFO Tinsukia. In this context attention of the Court has been drawn to 14 the evidence including the cross-examination of several witnesses recorded by the trial Court. For the sake propriety some portion of evidence are referred below:
An Accounts Officer of Regional Provident Fund Office Sri Bikash Ranjan Dhar as PW 2 has stated that Accounts Officer in no circumstances can sanction and release an amount beyond Rs.50,000/- to employee towards P. F. settlement. Such record of P. F. claim remains in the custody of EPFO.
P.W.5 Sri P.C. Patir, Dy. Director Vigilance, EPFO has stated in cross- examination stated that there was criminal nexus amongst the officials of the EPFO and the establishment of M/s Donyi Polo Mission, Itanagar and UCO Bank Itanagar, SBI Angarkhowa Branch. He further elaborate his evidence that such P. F. claims is to be examined first by the Dealing Assistants of the office, thereafter Section Supervisor as well as Accounts Officer to ensue the correctness. He further stated that it is the duty of the EPFO officials to maintain the demand collection balance register (in short DCB) but it was not properly maintained. That apart official of Sub- regional office (SRO) had to ensure that the amount was available in the particular account. During the settlement of the aforesaid claims sanction power Assistant Accounts Officer (AAO) Sri N K Hazarika was Rs.50,000/- but on the verbal instruction of Sri T. N. Bhutia the then Assistant Provident Fund Commissioner, Sri Manobendra Chowdhury AAO issued cheque beyond Rs.50,000/- in respect final settlement of the above claims even though they are not empowered. In course of investigation by him he observed that fraudulent siphoning of public money was a pre-concerted plan between EPFO Establishment and Bank.
P.W.7, Sri P. C. Kalita stated that the nine claims were put up by the Dealing Assistant Muhiram Sonowal, checked by Section Supervisor Subudh Ch. Rabha, passed by N. K. Hazarika, cheques were signed by Sri T. N. Bhutia and Manobendra Chowdhury. It is also stated in his cross examination that Muhiram Sonowal, Subudh Ch. Rabha, N. K. Hazarika, T. N. Bhutia and Manobendra Chowdhury were involved in settling the nine claims.
Evidence of P.W.9 Maheswar Boro, Section Supervisor, Cash Branch EPFO Guwahati, PW 16, Pijush Roy, SSA EPFO, PW 17 R.D.Kanungo, Enforcement Officer, EPFO, PW 20 Ranjit Dutta SSA, EPFO, PW 22 Bipin Saikia Enforcement Officer, EPFO had stated in their evidence that it is the duty of officials of EPFO, more particularly 15 the Accounts Section of EPFO to verify and re-verify the P.F. claims and during the said period aforesaid officials namely Muhiram Sonowal, Subudh Ch. Rabha, N. K. Hazarika, T. N. Bhutia and Manobendra Chowdhury were working in the Accounts Section and were involved in settling the above claims.
19. It has been contended by the learned counsel Mr. M. Choudhury for the respondents that the aforesaid evidence on record is sufficient to suggest the complicity of the accused petitioners with the alleged offence. Such a laxity on the party of the accused petitioner cannot be relaxed by the investigating officer as a mere irregularity on the part of EPFO officials. Such a serious matter of P. F. settlement that too more than Rs.19 lakhs cannot be materialized unless connivance of the EPFO officials, where there was no money in the aforesaid accounts. At the time initial investigation by PW 5 who was a Vigilant Director, he found serious disparity as regards amounts mentioned in the P. F. claims, DCB register, non fill up of forms in proper manner and other several discrepancies while settling the claims.
Even the officials mentioned above has acceded their limits of sanctioning power and issued cheques beyond their limits. On the face of such matters on record as well as evidence from the officers of their own establishment of EPFO how the CBI/Prosecution Agency can exonerate such officials, has been challenged by the respondents by way of the petition as mentioned above. It has been vehemently contended that such a resistance by the prosecuting agency towards impleadment of above five petitioners is not at all maintainable. However, learned counsel has clarified that they have never prayed for impleament of P.C. Kalita in their petition in view of lack of evidence about his involvement towards settlement of above fictitious claims. It is also pointed out that the said Mr. P. C. Kalita neither implicated in the FIR nor in the Charge-sheet and there is dearth of evidence about his complicity in the alleged offence.
20. To bolster his argument several decisions have been relied by Mr. M. Choudhury which are as follows:
(a) 2007 (1) SCC 1 (Prakash Singh Badal & anr-vs- State of Punjab and ors.
(b) 2007 (14) SCC 783 ( Paul Varghese -vs- State of Kerala & another.16
(c) AIR 1956 SC 44 (1) (Matajog Dobey -vs- H.C. Bhari)
(d) 1998 (1) SCC 205 (Suresh Kumar Bhikanchand Jain -vs-Pandey Ajay
Bhusan & ors)
(e) 2008 (9) SCC 140 (Bholuram -vs- State of Punjab & anr)
(f) 2014 (3) SCC 92 ( Hardeep Singh -vs- State of Punjab & ors)
21. I have considered the submissions of the learned counsel and gone through the relevant citations submitted above. Also considered the submissions of the learned counsel Ms. M. Kumari, appearing on behalf of respondent Jayanta Deb Roy, who has drawn the attention to the complaint (annexed with the Charge-sheet) so filed by the complainant PW 5, on the basis of which the investigation was started, which is very much crucial to decide the complicity of the concerned officials of EPFO. As has been mentioned above by the learned counsel for the respondents the aforesaid investigation so made by the PW 5 has suggested a complicity of the aforesaid petitioners (except P.C.Kalita) while settling the fictitious amounts, there being no such claimants and no such amounts deposited in the bank. Moreover, it has also been contended that Jayanta Deb Roy was not involved in the aforesaid settlement, but said contention at this stage cannot be challenged by the respondent Jayanta Deb Roy, as he has not challenged the charge which was framed far back against him and now he has been arrayed as a respondent only because he has moved the petition for impleadment of other persons as accused along with them.
22. I have given due consideration to the submissions by respective parties and also gone through the documents and citations. It is to be noted that apart from other citations both the parties basically relied upon the recent decision of the Hon'ble Supreme Court in the case of Hardeep Singh (supra) which is very crucial for decision of the matter in hand. For the sake of brevity, let us discuss the contentions so raised by the parties in the above three petitions and the observations of Hon'ble Supreme Court as regards the law for invoking the extra ordinary power of Section 319 Cr.P.C.
23. As regards the ground taken to the effect that accused cannot move a petition praying for invoking power U/S 319 Cr.P.C., the observation made by the learned Supreme Court in Bholuram -vs- State of Punjab and another, reported 17 2008 (9) SCC 142 can be referred. In paragraph 22 of the judgment it has been held that " it is settled law that power U/S 319 Cr.P.C. can be exercised either on an application made to the Court or by the Court suo moto. In the discretion of the Court to take an action under said Section the Court is extracted to exercise the discretion judicially and judiciously having regard to the facts and circumstances of each case. In para 25 of the judgment it is further hold that it no where states that such an application can be filed by a person other than the accused. It also does not prescribed any time limit within which such application should be filed. It is also held that power U/S 319 for the Code can be exercised by the Court sou moto or on an application by someone including accused already before it, If it is satisfied that any person other than the accused he is to be tried together with the accused and accordingly it is held that the learned Magistrate has power and jurisdiction to entertain application filed by the appellant/accused U/S 319 of the Code and issue summons to the respondent no.2 by adding him as an accused. The said order could not be said to be illegal, unlawful or otherwise objectionable.
24. The aforesaid observations answered two contentions raised in these petitions that even an accused can prefer a petition U/S 319 Cr.P.C. and there is no time limit for preferring such petition and as such ground of delay is not a bar to entertain such petition.
25. In Hardeep Singh -vs- State of Punjab & ors, reported in 2014 (3) SCC 92 has almost discussed all the facets of power U/S 319 Cr.P.C. when the same can be exercised. The Apex Court amongst others also discussed following points
(i) what is the stage at which power U/S 319 Cr.P.C. can be exercised.
(ii) Whether the word 'evidence' is used in Section 319 Cr.P.C. could only mean evidence tested by cross-examination or can exercise the power under the said provision even on the basis of statements made in examination-in-chief
(iii) Whether the word 'evidence' is used in Section 319 Cr.P.C has been used in comprehensive sense and includes the evidence collected during the investigation or the word 'evidence' is limited to the evidence recoded during trial 18
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. and whether the power under Section 319 Cr.P.C. cn be invoked if the court is satisfied that the accused summoned will in all likelihood be convicted and
(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR but not charged or who have been discharged.
26. While discussing the point (i), the Apex Court held in paragraphs 25,34,40,47,55 and 57 of the said judgment held that even the word "course" occurring in Section 319 Cr.P.C., clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers the entire wide range of the process of the pre-trial and the trial stage. The word "course" therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry upto the stage of the conclusion of the trial. The court does not become functus officio even if congnizance is taken so far as it is looking into the material qua any other person who is not an accused. The word "course" ordinarily conveys a meaning of a continuous progress from one point to the net in time and conveys the idea of a period of time; duration and not a fixed point of time"(para 40).
27. The second point regarding word 'evidence' used in section 319 (1) Cr.P.C. the Hon'ble Supreme Court discussed in paragraphs 59,84,85,88,89,90,91 and 92 of the judgment and held that the court can exercise the power under Section 319 Cr.P.C. even at the stage of completion of examination-in-chef and the Court does not need to wait till the said evidence is tested on cross-examination. The Apex Court nowhere in the said judgment mentioned that statement made in cross examination cannot be considered as evidence to invoke power under Section 319 Cr.P.C. In paragraph 92 of Hardeep Singh (supra) held that "Thus, in view of the above , we hold that power under Section 319 Cr.P.C.can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross-examination for its is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence".
1928. While deciding the point no. (iii) whether the Whether the word 'evidence' is used in Section 319 Cr.P.C has been used in comprehensive sense, the Hon'ble Apex Court discussed the said issue in paragraphs 59,45,84 and 85 of the judgment and held that " the word evidence' in section 319 Cr.P.C. contemplates the evidence of the witnesses given in the court (Para 75). "The word 'evidence' therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier even at the stages of inquiry, as used u/s 319 Code of Criminal Procedure The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court become more onerous to invoke such powers cautiously on such material after evidence has been led during trial."
"80. In view of the discussions made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the Court after congnizance is taken and before the trial commences, can be utilized only for corroboration and to support the evidence recorded by the court to invoke the power u/s 319 Cr.P.C.. The 'evidence' is thus, limited to the evidence recorded during the trial."
29. As regards the degree of satisfaction in point (iv), the Apex Court discussed in paragraph 90,93,94,96,100 and 106 of the judgment and held that "Thus, we hold that though only a prima facie case is to be established form the evidence led before the court not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time o framing of 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 20 power u/s 319 Code Criminal Procedure. In Section 319 Code of Criminal Procedure the purpose of providing if it appears form 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 u/s 319 Cr.P.C. to form any opinion as to the guilt of the accused '(para 106).
30. As regards the point no. (v) does the power under Section 319 Cr.P.C. extend to persons not name in the FIR or named in the FIR but not charged or who have been discharged the Hon'ble Apex Court in paragraphs 107 and 116 of the said judgment held that "Thus, it is evident that power u/s 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in the column 2 of the Charge-sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged , no proceedings can be commenced against him directly u/s 319 Cr.P.c. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C.(para 116).
31. As regards the ground taken in Criminal Petition 446/2015 regarding sanction for prosecution it is to be noted that the accused persons have been summoned to face the trial for the offences u/s 120B/406/408/34 IPC and there is no mention in the order dated 2.2.2015 to the effect of any offence under the prevention of Corruption Act, 1988, the question of previous sanction as required under Section 19 of the P.C. Act does not require in the instant case. Furthermore, two persons namely Sri T N Bhutia and Sri Manabendra Choudhury have already retired form service. On such count previous sanction under provisions of Section 197 Cr.P.C. does not require against those two officials. As regards the requirement of previous sanction to prosecute government employees to prosecute under Section 120B/406/408/34 IPC, the Apex Court in Prakash Singh Badal and Another vs the State of Punjab and others, reported in (2007) 1 SCC 1, observed that 21 " If therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be a publics servant, no sanction would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying Section 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public savant in the meantime, this vital consideration ceases to exist. As a necessary corollary, if the accused has ceased to be a public servant at the time when the court is called upon to take cognizance of ht offence allege dot have been committed by him as public servant, Section 6 is not attracted. This aspect is no more re integra" (para 16).
32. The Apex Court further held in the said judgment as below:
"The effect of sub-sections (3) and (4) of section 19 of the Act are of considerable significance. In Sub-Section (3) the stress is on "failure of justice" and that too" in the opinion of the Court". In sub-section (4), the stress is on raising the plea at the appropriate time.
Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to root of jurisdiction a observe din para 95 of the Narasimha Rao's case (supra). Sub-section (3)© of section 19 reduces the rigour of kprohibition"(para 29) "The question relating to the need of sanction u/s 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceedings. The question whether sanction is necessary or not may have to be determined from stage to stage"(paa 38).
22"The offence of cheating u/s 420 or for that matter offences relatable to Section 467,478,471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases official status only provides an opportunity for commission of the offence' (para 50).
33. In Bholu Ram (supra), the Apex Court held as under:
"We express our inability to agree with the learned counsel. It is settled law that offence punishable under Section 409,420, 467, 468, 471 etc can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while 'acting or purporting to act in discharge of official duty(vide Prakash Singh Badal and another -vs- State of Punjab and others) (para 60)
34. In Matajog Dobey -vs- H.C.Bhari, (supra) the Five Judges Bench of the Hon'ble Supreme Court held that there must be reasonable connection between the act and the discharge of official duty by a government employee. The act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.(para 17,19,20,21,23 and 24).
35. In Suresh Kumar Bhikamchand Jain -vs- Pandey Ajay Bhushan and ors , reported in (1998) 1 SCC 205, the Apex Court also maintained the said position and held hat question of sanction can be considered at any stage of the proceedings (para 23)
36. In Paul Varghese -vs- the State of Kerala and another, (supra) the Hon'ble Supreme Court held that merely because there is any omission , error or irregularities in the matter of according sanction, that does not affect the validity of the proceedings unless the court records the satisfaction that such error, omission or irregularities has resulted in failure of justice. The same logic also applies to the appellate and revisional court (para 8 and 9)
37. In view of legal proposition set forth by the Hon'ble Apex Court it can be arrived at that the learned trial Court has ample power to invoke the provisions of 23 Section 319 Cr.P.C. and to implead the persons not awarded in the Charge-sheet having regard to the evidence on record which included the cross-examination of the witnesses, if the Presiding Office is fully satisfied on the matter on record that it appears that such person should also be tried together along the accused already facing trial. The degree of satisfaction as discussed in the aforesaid Hardeep Singh case there is no any whisper that the trial Court cannot take into consideration the evidence given in cross-examination. The submissions of the petitioners on this account that the Court can only look into the evidence in examination-in-chief is no way sustainable. Similarly considering the stage of taking congnizance at the latter stage of evidence, and the nature of offence, the matter of sanction is not required as has been discussed in Prakash Singh Badal (supra). On the other hand though the learned trial Court has not recorded long detail of reasons for invoking the provisions U/S 319 Cr.P.C. but his observation indicates that he has gone through all the evidence and matters on record and record his satisfaction prior to invoking the jurisdiction. The overwhelming evidence of the officer concerned of the establishment of EPFO where the present petitioners were employees, as discussed above is enough to arrive such finding. If the respondent nos. 1 and 2 played one part of the offence in the office of M/s Dony Pollo Mission by forwarding fake P.F. claims, then the vital part of releasing the fake amount, without verifying the documents, bank accounts etc has been done by the officials of the EPFO office/viz the present petitioners. Such release of public money by violating the standing provisions by all such officials/present petitioners cannot be simply termed as irregularities as has been shown by the Investigating Agency/CBI. The submissions of the learned counsel for CBI that they found no mens rea on the part of these officials cannot hold good in view of evidence on record as well as the complaint made by the Vigilance Officer of EPFO office.
38. In such identical situation the role of the State has been discussed in Bholuram (supra) in para 64 and 66 in the following manner:
" We may examined the role of the State also. We have already noted earlier that an order passed by the Judicial Magistrate summoning respondent noi.2 as accused was challenged by the Sate by filing a revision in the Court of Sessions, which was dismissed. Even in this Court, the State supported respondent no.2. An affidavit in reply is 24 filed by the State through Deputy Superintendent of Police in March 2007, even before counter affidavit was filed by contesting respondent No.2. "
"(In the totality of the facts and circumstances, the submission of the learned Counsel for the appellant that the State Authorities were helping and assisting respondent no.2 cannot be said to be totally ill- founded or without substance. The State, in our opinion, could have avoided such embarrassment."
39. The Constitutional Bench of the Apex Court discussed the above aspect and power and ambit of Section 319 Cr.P.C. in the case of Hardeep Singh -vs- State of Punjab and others, (supra) .
"91.invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(s) is obliterating the role of persons already facing trial."
40. In view of all above discussions and findings, it is found that there is no infirmity in the order dated 2.2.2015 passed by the learned trial Court as regards invoking of provisions U/S 319 Cr.P.c. so far as four accused petitioners namely, (1) Muhiram Sonowal, (2) Subudh Ch. Rabha, (3) N. K. Hazarika and (4) T. N. Bhutia but so far as the petitioner Sri T.C.Kalita there is no implicating evidence to suggest his complicity to the offence alleged so his name has been arrayed inadvertently only because he was also a Section Supervisor at the relevant time. But the evidence referred earlier suggest that Sri Subudh Ch. Rabha dealt with the above fictitious claims as a Section Supervisor.
41. Accordingly the impugned order made by the Special Judge is hereby upheld as regards the four petitioners named above and the order as regards P.C.Kalita is hereby set aside.
42. The Revision Petition No. 186/2015 preferred by the CBI as well as Criminal Petition No.446/2015 preferred by four petitioners deserves no merit, hence dismissed. The Criminal Petition No.526/2015 filed by Sri P.C. Kalita is allowed.
2543. The four petitioners, namely, Muhiram Sonowal, Subudh Ch. Rabha, N. K. Hazarika and T. N. Bhutia are hereby directed to appear before the learned trial Court within 15 (fifteen) days from the passing of this order and in view of the old pendency of the matter, the learned trial Court is directed to dispose the case at the earliest preferably within three months.
44. All the petitions stand disposed accordingly.
JUDGE Nandi 26